State Vs. Moti Singh - 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. - a joint trial of all the 19 offences though of the same kind and committed within the space of 12 months was bad being in violation of section 234 of the code, as not more than three offence, could be jointly tried.orderc.b. bhargava, j.1. this is a reference by the learned sessions judge, jhunjhunu, recommending that the order of commitment passed by the sub-divisional magistrate, nawalgarh for the trial of the accused under sections 409, 468 and 477a i.p.c be quashed.2. the facts which led to the prosecution of the accused are that that he was branch post-master in village parasrampura from 3rd march, 1953 to 12th june, 1953, and during this period he received a number of money orders and insured letters to be delivered to their respective addressees, but instead he misappropriated the amounts to his own use, forged the receipts of the addressees and made false entries in the account books of the branch post office. the number of items in respect of which misappropriation and falsification of accounts, is said to have been committed by him, is 19. in each case the addressee is different and the money orders and the insured letters were also to be delivered on different dates. the police after investigation submitted seven challans against the accused in the court of the sub-divisional magistrate, nawalgarh. the learned sub-divisional magistrate at first held separate trials. in each case, he examined some witnesses but later on he consolidated all the cases and framed charges under section 409, 468 and 477a i.p.c. and committed the accused to the court of the sessions judge, jhunjhunu.when the case came up before the learned sessions judge it was pointed out on behalf of the prosecution that all the 19 offences of which the accused was charged could not be jointly tried, as they were not committed in the course of the same transaction so as to attract section 235 of the code of criminal procedure. the learned sessions judge accepted the contention of the prosecution and has made this reference. one more ground for quashing the order of commitment mentioned by the learned sessions judge is that the learned sub-divisional magistrate did not comply with the procedure laid down in section 207-a of code of criminal procedure, inasmuch as he did not examine all the witnesses to the commission of the crime before passing the order of commitment.3. the relevant provisions which deal with the joining of charges and joint trials are contained in sections 233 to 239, cr. p. c. section 233 provides that,'for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239.'separate trial for every offence is the general rule and a joint trial can be justified only if it comes within the exceptions mentioned in sections 234, 235, 236 and 239. there is one more section, which needs to be noticed and that is section 222(2) of the code of criminal procedure, which provides that,'when the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234:provided that the time included between the first and last of such dates shall not exceed one year.' 4. therefore, so far as the offence under section 409 is concerned, there can be one joint trial in respect of all the 19 items by virtue of section 222(2) cr. p. c. if the charge mentions the gross sum in respect of which the offence is alleged to have been committed. but section 222(2) has no application to the charges under sections 468 and 477-a. a joint trial for these offences, can only be justified if it comes within the exception mentioned in sections 234, 235, 236 and 239 cr. p.c. the learned sub-divisional magistrate in his explanation has stated that as he considered that all the 19 offences were committed in the course of the same transaction, he ordered a joint trial in the case. this, however, does not appear to be correct, because the offences were committed on different dates, involved different items and related to different addressees. sections 236 and 239 obviously were not applicable in the present case.the only section under which a joint trial could be held was section 234. under section 234, the accused could be tried and charged with offences not exceeding three of the same kind having been committed within the space of twelve months. in the present case the offences are of the same kind. the supreme court case reported in chandi prasad singh v. state of u. p., (s) air 1956 sc 149, to which reference has been made by the learned sub-divisional magistrate in his explanation, has no application to the facts of this case. in that case along with the three offences under section 409 another offence under section 477 was tried and a joint trial was held to be justified because all the offences were committed in the course of the same transaction and section 235 was held to be applicable. a joint trial of all the 19 offences though of the same kind and committed within the space of 12 months was bad being in violation of section 234 of the code, as not more than three offence, could be jointly tried. this being the case, the order of the learned sub-divisional magistrate consolidating all the offences and committing the accused to the court of the sessions judge, jhunjhunu cannot be sustained.5. this reference is, therefore, accepted, the order of commitment passed by the learned sub-divisional magistrate is set aside and the case is sent back to his court for trial according to law.

Judgment:
ORDER

C.B. Bhargava, J.

1. This is a reference by the learned Sessions Judge, Jhunjhunu, recommending that the order of commitment passed by the Sub-Divisional Magistrate, Nawalgarh for the trial of the accused under Sections 409, 468 and 477A I.P.C be quashed.

2. The facts which led to the prosecution of the accused are that that he was Branch Post-Master in village Parasrampura from 3rd March, 1953 to 12th June, 1953, and during this period he received a number of money orders and insured letters to be delivered to their respective addressees, but instead he misappropriated the amounts to his own use, forged the receipts of the addressees and made false entries in the account books of the Branch Post Office. The number of items in respect of which misappropriation and falsification of accounts, is said to have been committed by him, is 19. In each case the addressee is different and the money orders and the insured letters were also to be delivered on different dates. The police after investigation submitted seven challans against the accused in the Court of the Sub-Divisional Magistrate, Nawalgarh. The learned Sub-Divisional Magistrate at first held separate trials. In each case, he examined some witnesses but later on he consolidated all the cases and framed charges under Section 409, 468 and 477A I.P.C. and committed the accused to the Court of the Sessions Judge, Jhunjhunu.

When the case came up before the learned Sessions Judge it was pointed out on behalf of the prosecution that all the 19 offences of which the accused was charged could not be jointly tried, as they were not committed in the course of the same transaction so as to attract Section 235 of the Code of Criminal Procedure. The learned Sessions Judge accepted the contention of the prosecution and has made this reference. One more ground for quashing the order of commitment mentioned by the learned Sessions Judge is that the learned Sub-Divisional Magistrate did not comply with the procedure laid down in Section 207-A of Code of Criminal Procedure, inasmuch as he did not examine all the witnesses to the commission of the crime before passing the order of commitment.

3. The relevant provisions which deal with the joining of charges and joint trials are contained in Sections 233 to 239, Cr. P. C. Section 233 provides that,

'for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239.'

Separate trial for every offence is the general rule and a joint trial can be justified only if it comes within the exceptions mentioned in Sections 234, 235, 236 and 239. There is one more section, which needs to be noticed and that is Section 222(2) of the Code of Criminal Procedure, which provides that,

'when the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234:

Provided that the time included between the first and last of such dates shall not exceed one year.'

4. Therefore, so far as the offence under Section 409 is concerned, there can be one joint trial in respect of all the 19 items by virtue of Section 222(2) Cr. P. C. if the charge mentions the gross sum in respect of which the offence is alleged to have been committed. But Section 222(2) has no application to the charges under Sections 468 and 477-A. A joint trial for these offences, can only be justified if it comes within the exception mentioned in Sections 234, 235, 236 and 239 Cr. P.C. The learned Sub-Divisional Magistrate in his explanation has stated that as he considered that all the 19 offences were committed in the course of the same transaction, he ordered a joint trial in the case. This, however, does not appear to be correct, because the offences were committed on different dates, involved different items and related to different addressees. Sections 236 and 239 obviously were not applicable in the present case.

The only section under which a joint trial could be held was Section 234. Under Section 234, the accused could be tried and charged with offences not exceeding three of the same kind having been committed within the space of twelve months. In the present case the offences are of the same kind. The Supreme Court case reported in Chandi Prasad Singh v. State of U. P., (S) AIR 1956 SC 149, to which reference has been made by the learned Sub-Divisional Magistrate in his explanation, has no application to the facts of this case. In that case along with the three offences under Section 409 another offence under Section 477 was tried and a joint trial was held to be justified because all the offences were committed in the course of the same transaction and Section 235 was held to be applicable. A joint trial of all the 19 offences though of the same kind and committed within the space of 12 months was bad being in violation of Section 234 of the Code, as not more than three offence, could be jointly tried. This being the case, the order of the learned Sub-Divisional Magistrate consolidating all the offences and committing the accused to the Court of the Sessions Judge, Jhunjhunu cannot be sustained.

5. This reference is, therefore, accepted, the order of commitment passed by the learned Sub-Divisional Magistrate is set aside and the case is sent back to his court for trial according to law.