State Vs. Parasram - 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. - meloni there is a well named 'panch chhorin'.the complainant dayaram and his brother parthu were shown as holder of 1/5th share in the well in the revenue record up to the samvat year 2014. champa jat was not shown as a co-sharer with dayaram and parthu. in the complaint after stating that he and his brother parthu were shown as having 1/5th share in the well in the revenue records and that champa had no share along with them, the complainant stated that the accused parasram after obtaining some undue advantage from champa jat showed him as a sharer along with the complainant and his brother parthu in the revenue records for the samvat years 2016 to 2017. it was stated in the complaint that the accused made alterations in the revenue records on the occasion of his transfer. unfortunately, the committing magistrate as well as the sessions judge did not properly apply their mind to this aspect of the case. such an allegation clearly amounts to an alteration of the document so as to attract the applicability of clause (2) of section 464, indian penal code. the case against the present accused clearly is that he initially at the time of making entries in the girdawari record made wrong and unauthorised entries.orderl.n. chhangani, j.1. this is a reference by the sessions judge, bhilwara recommending that the charge-framed against the accused parasram under section 466, indian penal code be quashed. with this recommendation there is an implicit further recommendation that the commitment of the accused for trial to the court of session bhilwara be also quashed. the sessions judge also recommends that the other offence under section 167, indian penal code be directed to be tried by the committing magistrate.2. the facts giving rise to the reference are briefly these:3. the accused parasram is a patwari in the service of the rajasthan state. he was holding charge of the patwar circle, meloni, for the period from samvat years 2014 to 2017. in the village. meloni there is a well named 'panch chhorin'. the complainant dayaram and his brother parthu were shown as holder of 1/5th share in the well in the revenue record up to the samvat year 2014. champa jat was not shown as a co-sharer with dayaram and parthu. on 4th august, 1961 dayaram filed a complaint in the court of first class magistrate, gangapur accusing parasram of offences under sections 446 and 167, indian penal code. in the complaint after stating that he and his brother parthu were shown as having 1/5th share in the well in the revenue records and that champa had no share along with them, the complainant stated that the accused parasram after obtaining some undue advantage from champa jat showed him as a sharer along with the complainant and his brother parthu in the revenue records for the samvat years 2016 to 2017. it was stated in the complaint that the accused made alterations in the revenue records on the occasion of his transfer.it was further stated that he removed the original paper containing the entry and substituted another paper containing the changed entries. the complaint was initially sent to the tehsildar gangapur for enquiry under section 202, criminal procedure code, and after the receipt of the report of the tehsildar a case was registered under sections 466 and 167, indian penal code. the magistrate after holding enquiry under section 208, criminal p.c. framed charges against the accused under sections 167 and 466, indian penal code and committed the accused to the court of session, bhilwara, for trial. before the sessions judge the accused parasram made a preliminary submission that on the facts alleged in the complaint no case under section 466, indian penal code was made out. the sessions judge accepting the submission of the accused has made the present reference.4. in the first instance, the sessions judge observed that the entries in the khasra-girdawaries having been made by the accused alone he could not be said to have made false document as defined in section 464, indian penal code. he emphasised the distinction between 'making an incorrect document' and 'making a false document'.. he then proceeded to say that assuming that the accused having made entry in the khasra girdawari made a false document yet the forgery alleged to have been committed by him does not fall within the language of section 466, indian penal code. the learned judge summed up the legal position in the following words:'such a forgery in order that it might be punishable under section 466, i. p. c. should have been committed by a public servant to institute or defend a suit, or to take any proceedings therein or to confess judgment, or a power of attorney. in other words, when a public servant commits forgery in a register kept by him for any one of the four things mentioned above then only the offence falls under the category of section 466, i. p. c. the charge framed by the committing court admittedly does not mention that the accused committed forgery for the purpose of any one of the four things mentioned above. on the other hand, it says that the accused committed forgery in order that loss might be caused to parthu and dayaram and that champa might claim title to the land in dispute. in other words, the wordings of section 463 have only been used, which are common to every kind of forgery. i am therefore, of opinion that in the first place, there is no case made out against the accused for an offence of forgery as at the most the offence committed by him can be said to be one falling under section 167, i. p. c. only. in the second place, there is no iota of evidence regarding the offence under section 466, i. p. c. at least and the facts mentioned in the charge framed by the trial court also does not fulfil the ingredients of offence under section 466, i. p. c.'now, so far as the main reasoning of the sessions judge based on the interpretation of section 466, indian penal code is concerned, it does not appeal to me. it is true that section 466, indian penal code deals with aggravated cases of forgery but the interpretation of the sessions judge that forgery to be punishable under section 466, indian penal code should be for one of the four purposes mentioned by him, cannot be accepted on a proper interpretation of section 466, indian penal code. section 466 indian penal code reads as follows:'whoever forges a document, purporting to be a record or proceeding of or in a court of justice or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.'on a proper paraphrasing of the section it is quite obvious that the section seeks to treat forgery of certain specified kind of document as an aggravated form of offence. in this category the varies documents mentioned are:1. a document purporting to be a record or proceeding of or in a court of justice; 2. a register of birth, baptism, marriage or burial, or a register kept by a public servant as such; 3. or a certificate or document purporting to be made by a public servant in his official capacity, 4. or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment; 5. or a power of attorney. the expression 'to institute or defend a suit, or to take any proceedings therein, or to confess, judgment' have evidently to be associated with the word 'authority' preceding the expression. the expression cannot be associated with the other documents indicated in the section. the committing magistrate in his explanation has properly paraphrased the section and has rightly expressed his disagreement with the sessions judge. the argument of the sessions judge that assuming that the act of the accused amounted to forgery still it did not fall within the language of section 466, indian penal code is fallacious and cannot be accepted.5. the acceptance of the main ground of the sessions judge, however, does not conclude the matter. the crucial and the real question which calls for determination is whether the accused can be said to have made a false document within the meaning of section 464, indian penal code. unfortunately, the committing magistrate as well as the sessions judge did not properly apply their mind to this aspect of the case. a reference to the complaint indicates that the complainant initially came forward with an allegation that the initial entries made by the accused were subsequently changed by him on the eve of his transfer. such an allegation clearly amounts to an alteration of the document so as to attract the applicability of clause (2) of section 464, indian penal code. this being so, it could not be expected that on assuming the allegation in the complaint to be correct the accused cannot be said to have made a false document within the meaning of section 464 indian penal code. the learned counsel for the parties, however, took me through the relevant evidence and from that evidence it is clear that the prosecution case is not one of subsequent alteration of the document but is essentially one of making an initial incorrect and unauthorised entries in the revenue record. the order of commitment also lends support to this conclusion. the case against the accused being one of having initially made incorrect and unauthorised entries, the point for determination is whether the making of such entries can be said to constitute the making of false documents under section 464, indian penal code.mr. singhi initially brought to my notice mohamed sirdar v. emperor, air 1914 lah 586 to show that a patwari making wrong entries in the revenue record can be said to make a false document as denned in section 464, indian penal code. a reading of the judgment shows that the accused in that case was acquitted on a finding that there was no proof that be made the entry with intent to defraud or dishonestly. the learned single judge who decided the case discussed the case only with regard to the intention of the accused. the question whether mere making of wrong and unauthorised entries in the revenue record can or cannot constitute making a false document, was not specifically examined in the case. the case, in my opinion, does not provide any useful guidance to the determination of the controversy agitated before me. another case, namely, in re, venkatasuryanarasimha, rao air 1955 andhra 82 taking a contrary view was very candidly brought to my notice by mr. singhi appearing for the state, in that case dealing with clause (1) of section 464, indian penal code, the learned judge said;'under section 464 what is essential is that the accused person must make a document with the intention of making it to be believed that it was signed by or by the authority of some one else, while he knows that it was not so made or authorised by that person.'the learned judge found in that case that the accused did not make the bills purporting to be made by or authorised by some person and then observed:'the intention in issuing the bills may be fraudulent and he may be punishable; for some other offence. but to bring it within the four corners of this section, the false document must be created with a view to make it appear that it was made by some other person who the accused fellows did not make it.'i entirely agree with the observations extracted above. to bring the case within clause, 1 of section 464, indian penal code, it is necessary to establish that the accused intended td induce a belief that a document was made, signed, sealed or executed by the authority of a person who did not make, sign, seal or execute it or that it was made, signed, sealed or executed at a time when it was not so done. evidently section 464 cannot be invoked to cases where a public officer knowingly makes false entries initially in the public record on his own authority. the case against the present accused clearly is that he initially at the time of making entries in the girdawari record made wrong and unauthorised entries. there is no controversy that he was not competent to make those entries and in the absence of any material to show that he was responsible for alteration of the entries the entries made by the accused cannot amount to constitute false documents within the meaning of section 466, indian penal code. in this view of the matter, a charge under section 466, indian penal code, or for that matter for any offence relating to forgery, is not sustainable. the commitment of the accused for an offence under section 466 is consequently erroneous in law and deserves to be quashed.6. the reference is consequently accepted, although not on the principal ground relied upon by the sessions judge, and the commitment of the accused to the court of session is quashed. the case is sent back to the committing magistrate for trial of an offence under section 167, indian penal code.

Judgment:
ORDER

L.N. Chhangani, J.

1. This is a reference by the Sessions Judge, Bhilwara recommending that the charge-framed against the accused Parasram under Section 466, Indian Penal Code be quashed. With this recommendation there is an implicit further recommendation that the commitment of the accused for trial to the Court of session Bhilwara be also quashed. The Sessions Judge also recommends that the other offence under Section 167, Indian Penal Code be directed to be tried by the committing Magistrate.

2. The facts giving rise to the reference are briefly these:

3. The accused Parasram is a Patwari in the service of the Rajasthan State. He was holding charge of the Patwar circle, Meloni, for the period from Samvat years 2014 to 2017. In the village. Meloni there is a well named 'Panch Chhorin'. The complainant Dayaram and his brother Parthu were shown as holder of 1/5th share in the well in the revenue record up to the samvat year 2014. Champa Jat was not shown as a co-sharer with Dayaram and Parthu. On 4th August, 1961 Dayaram filed a complaint in the Court of First Class Magistrate, Gangapur accusing Parasram of offences under Sections 446 and 167, Indian Penal Code. In the complaint after stating that he and his brother Parthu were shown as having 1/5th share in the well in the revenue records and that Champa had no share along with them, the complainant stated that the accused Parasram after obtaining some undue advantage from Champa Jat showed him as a sharer along with the complainant and his brother Parthu in the revenue records for the Samvat years 2016 to 2017. It was stated in the complaint that the accused made alterations in the revenue records on the occasion of his transfer.

It was further stated that he removed the original paper containing the entry and substituted another paper containing the changed entries. The complaint was initially sent to the Tehsildar Gangapur for enquiry under Section 202, Criminal Procedure Code, and after the receipt of the report of the Tehsildar a case was registered under Sections 466 and 167, Indian Penal Code. The Magistrate after holding enquiry under Section 208, Criminal P.C. framed charges against the accused under Sections 167 and 466, Indian Penal Code and committed the accused to the Court of Session, Bhilwara, for trial. Before the Sessions Judge the accused Parasram made a preliminary submission that on the facts alleged in the complaint no case under Section 466, Indian Penal Code was made out. The Sessions Judge accepting the submission of the accused has made the present reference.

4. In the first instance, the Sessions Judge observed that the entries in the khasra-girdawaries having been made by the accused alone he could not be said to have made false document as defined in Section 464, Indian Penal Code. He emphasised the distinction between 'making an incorrect document' and 'making a false document'.. He then proceeded to say that assuming that the accused having made entry in the khasra girdawari made a false document yet the forgery alleged to have been committed by him does not fall within the language of Section 466, Indian Penal Code. The learned Judge summed up the legal position in the following words:

'Such a forgery in order that it might be punishable under Section 466, I. P. C. should have been committed by a public servant to institute or defend a suit, or to take any proceedings therein or to confess judgment, or a power of attorney. In other words, when a public servant commits forgery in a register kept by him for any one of the four things mentioned above then only the offence falls under the category of Section 466, I. P. C. The charge framed by the committing Court admittedly does not mention that the accused committed forgery for the purpose of any one of the four things mentioned above. On the other hand, it says that the accused committed forgery in order that loss might be caused to Parthu and Dayaram and that Champa might claim title to the land in dispute. In other words, the wordings of Section 463 have only been used, which are common to every kind of forgery. I am therefore, of opinion that in the first place, there is no case made out against the accused for an offence of forgery as at the most the offence committed by him can be said to be one falling under Section 167, I. P. C. only. In the second place, there is no iota of evidence regarding the offence under Section 466, I. P. C. at least and the facts mentioned in the charge framed by the trial Court also does not fulfil the ingredients of offence under Section 466, I. P. C.'

Now, so far as the main reasoning of the Sessions Judge based on the interpretation of Section 466, Indian Penal Code is concerned, it does not appeal to me. It is true that Section 466, Indian Penal Code deals with aggravated cases of forgery but the interpretation of the Sessions Judge that forgery to be punishable under Section 466, Indian Penal Code should be for one of the four purposes mentioned by him, cannot be accepted on a proper interpretation of Section 466, Indian Penal Code. Section 466 Indian Penal Code reads as follows:

'Whoever forges a document, purporting to be a record or proceeding of or in a Court of justice or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.'

On a proper paraphrasing of the section it is quite obvious that the section Seeks to treat forgery of certain specified kind of document as an aggravated form of offence. In this category the varies documents mentioned are:

1. A document purporting to be a record or proceeding of or in a Court of Justice;

2. a register of birth, baptism, marriage or burial, or a register kept by a public servant as such;

3. or a certificate or document purporting to be made by a public servant in his official capacity,

4. or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment;

5. or a power of attorney.

The expression 'to institute or defend a suit, or to take any proceedings therein, or to confess, judgment' have evidently to be associated with the word 'authority' preceding the expression. The expression cannot be associated with the other documents indicated in the section. The committing Magistrate in his explanation has properly paraphrased the section and has rightly expressed his disagreement with the Sessions Judge. The argument of the Sessions Judge that assuming that the act of the accused amounted to forgery still it did not fall within the language of Section 466, Indian Penal Code is fallacious and cannot be accepted.

5. The acceptance of the main ground of the Sessions Judge, however, does not conclude the matter. The crucial and the real question which calls for determination is whether the accused can be said to have made a false document within the meaning of Section 464, Indian Penal Code. Unfortunately, the Committing Magistrate as well as the Sessions Judge did not properly apply their mind to this aspect of the case. A reference to the complaint indicates that the complainant initially came forward with an allegation that the initial entries made by the accused were subsequently changed by him on the eve of his transfer. Such an allegation clearly amounts to an alteration of the document so as to attract the applicability of Clause (2) of Section 464, Indian Penal Code. This being so, it could not be expected that on assuming the allegation in the complaint to be correct the accused cannot be said to have made a false document within the meaning of Section 464 Indian Penal Code. The learned counsel for the parties, however, took me through the relevant evidence and from that evidence it is clear that the prosecution case is not one of subsequent alteration of the document but is essentially one of making an initial incorrect and unauthorised entries in the revenue record. The order of commitment also lends support to this conclusion. The case against the accused being one of having initially made incorrect and unauthorised entries, the point for determination is whether the making of such entries can be said to constitute the making of false documents under Section 464, Indian Penal Code.

Mr. Singhi initially brought to my notice Mohamed Sirdar v. Emperor, AIR 1914 Lah 586 to show that a Patwari making wrong entries in the revenue record can be said to make a false document as denned in Section 464, Indian Penal Code. A reading of the judgment shows that the accused in that case was acquitted on a finding that there was no proof that be made the entry with intent to defraud or dishonestly. The learned Single Judge who decided the case discussed the case only with regard to the intention of the accused. The question whether mere making of wrong and unauthorised entries in the revenue record can or cannot constitute making a false document, was not specifically examined in the case. The case, in my opinion, does not provide any useful guidance to the determination of the controversy agitated before me. Another case, namely, In re, Venkatasuryanarasimha, Rao AIR 1955 Andhra 82 taking a contrary view was very candidly brought to my notice by Mr. Singhi appearing for the State, In that case dealing with Clause (1) of Section 464, Indian Penal Code, the learned Judge said;

'Under Section 464 what is essential is that the accused person must make a document with the intention of making it to be believed that it was signed by or by the authority of some one else, while he knows that it was not so made or authorised by that person.'

The learned Judge found in that case that the accused did not make the bills purporting to be made by or authorised by some person and then observed:

'The intention in issuing the bills may be fraudulent and he may be punishable; for some other offence. But to bring it within the four corners of this section, the false document must be created with a view to make it appear that it was made by some other person who the accused fellows did not make it.'

I entirely agree with the observations extracted above. To bring the case within Clause, 1 of Section 464, Indian Penal Code, it is necessary to establish that the accused intended td induce a belief that a document was made, signed, sealed or executed by the authority of a person who did not make, sign, seal or execute it or that it was made, signed, sealed or executed at a time when it was not so done. Evidently Section 464 cannot be invoked to cases where a Public Officer knowingly makes false entries initially in the public record on his own authority. The case against the present accused clearly is that he initially at the time of making entries in the girdawari record made Wrong and unauthorised entries. There is no controversy that he was not competent to make those entries and in the absence of any material to show that he was responsible for alteration of the entries the entries made by the accused cannot amount to constitute false documents within the meaning of Section 466, Indian Penal Code. In this view of the matter, a charge under Section 466, Indian Penal Code, or for that matter for any offence relating to forgery, is not sustainable. The commitment of the accused for an offence under Section 466 is consequently erroneous in law and deserves to be quashed.

6. The reference is consequently accepted, although not on the principal ground relied upon by the Sessions Judge, and the commitment of the accused to the Court of Session is quashed. The case is sent back to the committing Magistrate for trial of an offence under Section 167, Indian Penal Code.