Mt. Goran Devi Vs. Tuljaram - Court Judgment

Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. if a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. however, the court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. the control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under section 2 (s) of the i.d. act. sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. however, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the i.d. act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. if a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the court will have to consider the nature of engagement in both the establishments. however, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - the complainant was altogether free to have dealt with it anyway she liked, 3. the counsel for the applicant has drawn my attention to the rulings as reported in ran bharosey v.orderatma charan, j.c.1. the opposite party filed a complaint against the applicant in respect of offences punishable under section 417 and 424, penal code. his case was that the husband of the applicant had borrowed a sum of rsection 1823 9.6, that the husband was dead and that he intended to file a civil suit foe recovery of the sum and put in an application for attachment of the gold that the husband of the applicant had left in deposit with the hind bank. the applicant gave him to understand that be need not worry as she intended to hand over the gold after she recovered it from the bank. he accordingly did not file the intended suit. the applicant subsequently recovered the gold but did not pay him the amount due from her and concealed the gold. the case, as such, of the opposite party was that the applicant committed an offence punishable under section 417, penal code, in thus putting him off from filing the civil suit and committed an officer punishable under section 424, penal code, in thus concealing the gold. the magistrate after recording the statement of the opposite party under section 200, criminal p.c., allowed the case to proceed on. the applicant has come up in revision from this order of the magistrate on the ground that the matter in dispute between the parties was only of a civil nature and should not have been allowed to be agitated before him by the magistrate.2. the opposite party in his statement says as below:i paid a sum of rsection 1523-9-6 to seth dwarka dass, who died on 4th august 1948. immediately on his death, i told the accused that she may either pay the money or i would u suit and get their gold deposited in the hind bank attached by the court. the accused asked me to wait so that she may recover the gold from the bank and pay me the dues from that gold. now she bas recovered the gold, but he refuses to pay the money. had she not given this false representation to me, i would have filed the civil till it and recovered the amount. she has also concealed the books of the accounts of her husband.even if it be assumed that what the opposite party say in his statement is correct, no offence whatsoever appears to be made out against the applicant. on the own showing of the opposite party the dispute between him and the applicant appears to be altogether of a civil nature, if at all. there could be no that the complaint against the applicant has only been filed with a view to putting pressure on her and with a view to having a cheaper remedy by avoiding the civil court, the opposite party obviously had no lien over the gold said to be in deposit with the hind bank. the complainant was altogether free to have dealt with it anyway she liked,3. the counsel for the applicant has drawn my attention to the rulings as reported in ran bharosey v. emperor a.i.r. (33) 1936 oudh 872 : 37 cr.l.j. 907 and ba yone mating v. ma bla kin a.i.r. (20) 1933 bang 297 : 85 cr.l.j. 52, wherein it has been laid down as below:a certain sum of money was paid by the grandson) of the judgment-debtor to the decree-holder under a promise of the decree bolder that no further liability under the decree passed against the judgment-debtor would attach to them. there was no evidence on the record to show that at the time when the decree-holder received the sum, he had any dishonest intention to the at them subsequently the decree-holder made an application for execution and claimed relief against the grandsons:held that it could not be said in terms of section 420, that the decree-holder cheated the grandsons and thereby induced them to deliver the sum. at the most it was a breach of contract but the breach of contract gives rise to purely civil action and did not amount to the criminal offence of cheating under 3. 420.no doubt a court of revision should be most reluctant to interfere in a pending case, but where upon the alleged facts, there is no justification for the charts against the accused, be should not for a moment longer than is necessary be allowed to remain in the position of a person accused of as offence and forced to defend himself against a charge which there is no legal evidence to establish.4. there in thus no reason as to why the proceedings going on in the court below be not quashed in entirety and the applicant directed to be discharged.5. the application in revision accordingly is allowed, the proceedings going on in the court below are quashed in entirety and the applicant is discharged.

Judgment:
ORDER

Atma Charan, J.C.

1. The opposite party filed a complaint against the applicant in respect of offences punishable Under Section 417 and 424, Penal code. His case was that the husband of the applicant had borrowed a sum of RSection 1823 9.6, that the husband was dead and that he intended to file a civil suit foe recovery of the sum and put in an application for attachment of the gold that the husband of the applicant had left in deposit with the Hind Bank. The applicant gave him to understand that be need not worry as she intended to hand over the gold after she recovered it from the Bank. He accordingly did not file the intended suit. The applicant subsequently recovered the gold but did not pay him the amount due from her and concealed the gold. The case, as such, of the opposite party was that the applicant committed an offence punishable Under Section 417, Penal Code, in thus putting him off from filing the civil suit and committed an officer punishable Under Section 424, Penal Code, in thus concealing the gold. The Magistrate after recording the statement of the opposite party Under Section 200, Criminal P.C., allowed the case to proceed on. The applicant has come up in revision from this order of the Magistrate on the ground that the matter in dispute between the parties was only of a civil nature and should not have been allowed to be agitated before him by the Magistrate.

2. The opposite party in his statement says as below:

I paid a sum of RSection 1523-9-6 to Seth Dwarka Dass, who died on 4th August 1948. Immediately on his death, I told the accused that she may either pay the money or I would u suit and get their gold deposited in the Hind Bank attached by the Court. The accused asked me to wait so that she may recover the gold from the Bank and pay me the dues from that gold. Now she bas recovered the gold, but he refuses to pay the money. Had she not given this false representation to me, I would have filed the civil till it and recovered the amount. She has also concealed the books of the accounts of her husband.

Even if it be assumed that what the opposite party say in his statement is correct, no offence whatsoever appears to be made out against the applicant. On the own showing of the opposite party the dispute between him and the applicant appears to be altogether of a civil nature, if at all. There could be no that the complaint against the applicant has only been filed with a View to putting pressure on her and with a view to having a cheaper remedy by avoiding the civil court, The opposite party obviously had no lien over the gold said to be in deposit with the Hind Bank. The complainant was altogether free to have dealt with it anyway she liked,

3. The counsel for the applicant has drawn my attention to the rulings as reported in Ran Bharosey v. Emperor A.I.R. (33) 1936 oudh 872 : 37 Cr.L.J. 907 and Ba Yone Mating v. Ma Bla Kin A.I.R. (20) 1933 Bang 297 : 85 Cr.L.J. 52, wherein it has been laid down as below:

A certain sum of money was paid by the grandson) of the judgment-debtor to the decree-holder under a promise of the decree bolder that no further liability under the decree passed against the judgment-debtor would attach to them. There was no evidence on the record to show that at the time when the decree-holder received the sum, he had any dishonest intention to the at them subsequently the decree-holder made an application for execution and claimed relief against the grandsons:

Held that it could not be said in terms of Section 420, that the decree-holder cheated the grandsons and thereby induced them to deliver the sum. At the most It was a breach of contract but the breach of contract gives rise to purely civil action and did not amount to the criminal offence of cheating under 3. 420.No doubt a Court of revision should be most reluctant to interfere in a pending case, but where upon the alleged facts, there is no justification for the charts against the accused, be should not for a moment longer than is necessary be allowed to remain in the position of a person accused of as offence and forced to defend himself against a charge which there is no legal evidence to establish.

4. There in thus no reason as to why the proceedings going on in the court below be not quashed in entirety and the applicant directed to be discharged.

5. The application in revision accordingly is allowed, the proceedings going on in the Court below are quashed in entirety and the applicant is discharged.