Karam Singh Vs. the State - 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. - it was in those circumstances that it was held that conspiracy is a substantive offence in itself and it could not be tried like an offence of abetment as provided in section 180 of the criminal p.orderdave, j.1. this reference comes on the report of the learned additional district magistrate jodhpur, dated the 17th of january 1955. he has made a recommendation that the offence of criminal conspiracy under section 120b alleged against the accused karamsingh was committed in phagwara in pepsu state, that the extra first class city magistrate has, therefore, no jurisdiction to enquire into the matter and so the proceedings should de quashed.2. it appears that the question of jurisdiction was raised by the accused karamsingh in the court of the extra magistrate first class, jodhpur, but it was held by him that the facts alleged by the prosecution disclosed a case under section 109 of the indian penal code and, therefore, he had jurisdiction to proceed in the matter.3. it is alleged by the prosecution that one meharsingh wanted to go out of india, but the patiala government had refused to give him the required permission in february 1952. he was however, very anxious to go to a foreign country, and therefore, he sought the help of the accused karamsingh, who promised to obtain a passport for him for rs. 4,500/-.according to the prosecution, maharsingh gave rs. 4,500/- to the accused karamsingh after mortgaging his land. thereafter, the accused somehow obtained an old passport which was once issued in the name of one kansingh. kansingh was dead and so this passport was obtained from his son arjunsingh. having obtained this passport, meharsingh's name was put in there.his photo was also affixed. on 11th of january 1954, meharsingh was trying to go out of india by a plane from jodhpur, but somehow suspicions of police officers were aroused and when they made an inquiry, it was found that the passport whereby meharsingh wanted to go out was a faked one.he was therefore off landed from the plane. after investigation, the police challaned karamsingh, mahendrasingh and meharsingh for offences under sections 490, 466, 467, 471, 472, 474 and 120b of the i. p. c, one of the accused namely, kartarsingh was absconding and, therefore, he was not challaned along with these accused. i learn that he has been subsequently arrested and challaned. for the same offences.4. it was urged by learned counsel for the accused karamsingh before the learned magistrate that the offence of conspiracy under section 120b, i. p. c., was complete at phagwara in pepsu and, therefore, the courts in rajasthan had no jurisdiction to try this case.this argument was repelled by the magistrate. the accused, however, went in revision to the additional district magistrate. the learned additional district magistrate is of opinion that this argument is correct and, therefore, he has made the recommendation as mentioned above.5. learned counsel for the petitioner has supported the reference and cited - 'emperor v. pursumal gerimal' air 1938 sind 108 (a), and 'in re, dani' air 1936 mad 317 (b), in support of his contention. learned deputy government advocate, on the other hand, contends that it was wrong on the part of the police officers submitting the challan to say that this was a mere case of criminal conspiracy.according to him, it was a case of abetment against the accused because all other offences mentioned in the police report were committed in pursuance of that conspiracy.6. it may be observed that the recommendation made by the learned additional district magistrate would have been correct if this was a case of mere criminal conspiracy and no offence were committed in pursuance thereof. in - 'emperor t. pursuml gerimal', (a)_ relied upon by learned counsel for the petitioner, five accused were tried by the sessions judge under section 120b and they were acquitted because the offence of conspiracy was completed outside the jurisdiction of the court and no offence of abduction for which the conspiracy was made was committed within the jurisdiction of that court.it was in those circumstances that it was held that conspiracy is a substantive offence in itself and it could not be tried like an offence of abetment as provided in section 180 of the criminal p. o. this case is obviously of no help to the petitioner in the circumstances of the present case.7. similarly the facts 'in re dani (b)', were very different and the observation made therein is not applicable to the present case,8. 'in re venkataramiah' air 1938 mad 130 (c), it was held that section 120b applies where any other crime has not been actually committed. it was further observed thatwhere the matter has gone beyond the stage of mere conspiracy and offences are alleged to have been actually committed in pursuance thereof these two sections 120a, 120b are wholly irrelevant. conspiracy, it should be borne in mind, is one form of abetment (see section 107, i. p. c.) and where an offence is alleged to have been committed by more than two persons, such of them us actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under section 109, i. p. c.in the present case, it is not alleged by the prosecution that there was a mere conspiracy to obtain a passport between the accused karamsingh and meharsingh, but there is a further allegation that in pursuance of that conspiracy, meharsingh actually tried to go outside india on a faked pass-port and but for the vigilance on the part of the police authorities, he would have been successful in going away from india on that passport.thus, it is alleged that several other offences under sections 419, 466, 467, 471, 472 and 474 of the indian penal code were committed in pursuance of that conspiracy. the real charge, therefore, against the accused karamsingh is not merely one of section 120b, but of abetment of so many offences.according to section 180, illustration (a), cr. p. c., a charge of abetment may be inquired into or tried either by the court within the local limits of whose jurisdiction the abetment was committed or by the court within whose jurisdiction ill* offence abetted was committed. it is alleged by the prosecution in this case that the offences abetted by the petitioner were committed at jodhpur in rajasthan and therefore the magistrate jodhpur has jurisdiction to inquire into the matter.under the circumstances, the recommendation made by the learned additional district magistrate is not correct and cannot be accepted. this should not however be taken to mean that the trial court would not be able to change its view if after the evidence is recorded, the facts are disclosed otherwise. for the present there seems to be no room for interference.9. the reference is therefore rejected.

Judgment:
ORDER

Dave, J.

1. This reference comes on the report of the learned Additional District Magistrate Jodhpur, dated the 17th of January 1955. He has made a recommendation that the offence of Criminal conspiracy under Section 120B alleged against the accused Karamsingh was committed in Phagwara in Pepsu State, that the Extra First Class City Magistrate has, therefore, no jurisdiction to enquire into the matter and so the proceedings should De quashed.

2. It appears that the question of jurisdiction was raised by the accused Karamsingh in the court of the Extra Magistrate First Class, Jodhpur, but it was held by him that the facts alleged by the prosecution disclosed a case under Section 109 of the Indian Penal Code and, therefore, he had jurisdiction to proceed in the matter.

3. It Is alleged by the prosecution that one Meharsingh wanted to go out of India, but the Patiala Government had refused to give him the required permission in February 1952. He was however, very anxious to go to a foreign country, and therefore, he sought the help of the accused Karamsingh, who promised to obtain a passport for him for Rs. 4,500/-.

According to the prosecution, Maharsingh gave Rs. 4,500/- to the accused Karamsingh after mortgaging his land. Thereafter, the accused somehow obtained an old passport which was once issued in the name of one Kansingh. Kansingh was dead and so this passport was obtained from his son Arjunsingh. Having obtained this passport, Meharsingh's name was put in there.

His photo was also affixed. On 11th of January 1954, Meharsingh was trying to go out of India by a plane from Jodhpur, but somehow suspicions of police officers were aroused and when they made an inquiry, it was found that the passport whereby Meharsingh wanted to go out was a faked one.

He was therefore off landed from the plane. After investigation, the police challaned Karamsingh, Mahendrasingh and Meharsingh for offences under Sections 490, 466, 467, 471, 472, 474 and 120B of the I. P. C, One of the accused namely, Kartarsingh was absconding and, therefore, he was not challaned along with these accused. I learn that he has been subsequently arrested and challaned. for the same offences.

4. It was urged by learned Counsel for the accused Karamsingh before the learned Magistrate that the offence of conspiracy under Section 120B, I. P. C., was complete at Phagwara in Pepsu and, therefore, the courts in Rajasthan had no jurisdiction to try this case.

This argument was repelled by the Magistrate. The accused, however, went in revision to the Additional District Magistrate. The learned Additional District Magistrate is of opinion that this argument is correct and, therefore, he has made the recommendation as mentioned above.

5. Learned Counsel for the petitioner has supported the reference and cited - 'Emperor v. Pursumal Gerimal' AIR 1938 Sind 108 (A), and 'In re, Dani' AIR 1936 Mad 317 (B), in support of his contention. Learned Deputy Government Advocate, on the other hand, contends that it was wrong on the part of the police officers submitting the challan to say that this was a mere case of criminal conspiracy.

According to him, it was a case of abetment against the accused because all other offences mentioned in the police report were committed in pursuance of that conspiracy.

6. It may be observed that the recommendation made by the learned Additional District Magistrate would have been correct if this was a case of mere criminal conspiracy and no offence were committed in pursuance thereof. In - 'Emperor T. Pursuml Gerimal', (A)_ relied upon by learned Counsel for the petitioner, five accused were tried by the Sessions Judge under Section 120B and they were acquitted because the offence of conspiracy was completed outside the jurisdiction of the court and no offence of abduction for which the conspiracy was made was committed within the jurisdiction of that court.

It was in those circumstances that it was held that conspiracy is a substantive offence in itself and it could not be tried like an offence of abetment as provided in Section 180 of the Criminal P. O. This case is obviously of no help to the petitioner in the circumstances of the present case.

7. Similarly the facts 'In re Dani (B)', were very different and the observation made therein is not applicable to the present case,

8. 'In re Venkataramiah' AIR 1938 Mad 130 (C), it was held that Section 120B applies where any other crime has not been actually committed. It was further observed that

Where the matter has gone beyond the stage of mere conspiracy and offences are alleged to have been actually committed in pursuance thereof these two Sections 120A, 120B are wholly irrelevant. Conspiracy, it should be borne in mind, is one form of abetment (see Section 107, I. P. C.) and where an offence is alleged to have been committed by more than two persons, such of them us actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under Section 109, I. P. C.

In the present case, it is not alleged by the prosecution that there was a mere conspiracy to obtain a passport between the accused Karamsingh and Meharsingh, but there is a further allegation that in pursuance of that conspiracy, Meharsingh actually tried to go outside India on a faked pass-port and but for the vigilance on the part of the police authorities, he would have been successful in going away from India on that passport.

Thus, it is alleged that several other offences under Sections 419, 466, 467, 471, 472 and 474 of the Indian Penal Code were committed in pursuance Of that conspiracy. The real charge, therefore, against the accused Karamsingh is not merely one of Section 120B, but of abetment of so many offences.

According to Section 180, Illustration (a), Cr. P. C., a charge of abetment may be inquired into or tried either by the court within the local limits of whose jurisdiction the abetment was committed or by the Court within whose Jurisdiction ill* offence abetted was committed. It is alleged by the prosecution in this case that the offences abetted by the petitioner were committed at Jodhpur in Rajasthan and therefore the Magistrate Jodhpur has jurisdiction to inquire into the matter.

Under the circumstances, the recommendation made by the learned Additional District Magistrate is not correct and cannot be accepted. This should not however be taken to mean that the trial court would not be able to change its view if after the evidence is recorded, the facts are disclosed otherwise. For the present there seems to be no room for interference.

9. The reference is therefore rejected.