Mt. Dhapu Vs. Rex - 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. orderatma charan, j.c.1. heard the parties.2. it is a petty 'marpit' case in which the applicant along with her relations is said to have thrown stones at the complainant. the applicant is & 'pardanabhin' woman, and her presence during the course of the complainant's evidence on this ground was dispensed with by the trial court under section 205, criminal p.c. the trial court subsequently directed the applicant to present herself in person so that her statement be recorded under section 245, criminal p.c. the applicant has come up in revision from this order of the trial court,3. the trial court in its order has given no reasons to show as to why it thought it necessary to direct the applicant to appear in person for recording her statement under section 2-15, criminal p.c. the pleader who was appearing for her could have easily been asked to make the statement. it has been held from time to time by the court that the provisions of section 206, criminal p.c. should be liberally construed in a country where so much prejudice exists against the appearance of women in public and where the procedural law is so frequently abused to gratify personal malice. the pleader for the applicant could have performed all the acts which devolved upon the applicant in the course of the trial, and could have answered the questions put to him by the trial court in his examination under 3. 246, criminal p.c. the nature of the case certainly is not such wherein the presence of the applicant in person should have been enforced by the trial court. if there was any particular reason, then the trial court should have mentioned it in its order.4. the application in revision accordingly is allowed and the order of the trial court directing the applicant to appear in person so that her statement be recorded is set aside. the applicant shall continue to remain exempted from personal appearance rules required under section 366 (2), criminal p.c.5. this order shall also govern criminal revisions nos. 43 and 44 of 1949.

Judgment:
ORDER

Atma Charan, J.C.

1. Heard the parties.

2. It is a petty 'marpit' case in which the applicant along with her relations is said to have thrown stones at the complainant. The applicant is & 'pardanaBhin' woman, and her presence during the course of the complainant's evidence on this ground was dispensed with by the trial Court Under Section 205, Criminal P.C. The trial Court subsequently directed the applicant to present herself in person so that her statement be recorded Under Section 245, Criminal P.C. The applicant has come up in revision from this order of the trial Court,

3. The trial Court in its order has given no reasons to show as to why it thought it necessary to direct the applicant to appear in person for recording her statement Under Section 2-15, Criminal P.C. The pleader who was appearing for her could have easily been asked to make the statement. It has been held from time to time by the Court that the provisions of Section 206, Criminal P.C. should be liberally construed in a country where so much prejudice exists against the appearance of women in public and where the procedural law is so frequently abused to gratify personal malice. The pleader for the applicant could have performed all the acts which devolved upon the applicant in the course of the trial, and could have answered the questions put to him by the trial Court in his examination under 3. 246, Criminal P.C. The nature of the case certainly is not such wherein the presence of the applicant in person should have been enforced by the trial Court. If there was any particular reason, then the trial Court should have mentioned it in its order.

4. The application in revision accordingly is allowed and the order of the trial Court directing the applicant to appear in person so that her statement be recorded is set aside. The applicant shall continue to remain exempted from personal appearance rules required under Section 366 (2), Criminal P.C.

5. This order shall also govern criminal Revisions Nos. 43 and 44 of 1949.