State Vs. Ramkishan - 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 accused is a young man of twenty years of age, and probably did not understand that it was an offence to take a fire-arm in pledge like this.wanchoo, c.j.1. this is an appeal by the state against the acquittal of ramkishan of an offence under section 19 (f) of the arms act.2. the facts of the case are not in dispute. the accused is the proprietor of grand hotel, jodhpur. one mahendra singh came and stayed at, the hotel. when he was leaving, he wag short of money and could not pay the bill that he had run up at the hotel. consequently mahendra singh left his pistol with the accused, and executed a document ex. p3 by which he pledged this pistol as a security for the sum of rs. 300/7/- which he owed to the grand hotel.he agreed that the money would be paid within a fortnight together with interest. it was also agreed that if the money was not paid within the, time-limit, the hotel would have the right to recover the amount by selling the pistol. on 23-3-1952, the pistol was recovered from the possession of the accused by the police on the basis, of some information received from bombay. thereafter, the accused was prosecuted under section 19 (f) of the arms act. he admitted these facts, but his case was that he was not guilty within the meaning of that section.3. section 19 (f) of the arras act provides,for punishment of any person who has in hispossession or under his control any arms, ammunition or military stores in contravention of theprovisions of section 14 or section 15, which provide forlicence.the contention of the applicant is that though he was, in fact possession of the pistol, in law that did not amount to possession within the meaning of section 19 (f). reliance in this connection has been placed on a number of authorities.4. the first of those cases is -- 'queen empress v. tota ram,' 16 all 276 (a). in that case, a servant nathu was carrying a gun of his master in order to have it repaired, and it was held that, in those circumstances, the servant was not guilty.5. in -- 'emperor v. harpal rai', 24 all 454 (b), a gun has been given by the licensee to a friend for purposes of repairs. this friend's father was taking the gun to a repairer for that. purpose when he was caught. it was held that in those circumstances there was no offence under section 19 (f). learned counsel relies on an observation in this case, which is in these words:'the essential of the offence is the going armed, that is, carrying a weapon with the intention of using it as a weapon when the necessity or opportunity arises.'we must say with respect to the learned judge a that all that section 19 (f) requires is possession or control of the arm, and there is no requirement in that section that the possession should be with the intention of using the weapon when the necessity or opportunity arises.we may add however that we agree with the view taken in these cases, namely that where a servant or a friend is in temporary possession, of a licensee's gun for a limited purpose say repairs, he would not be guilty under section 19 (f) of 'the arms act for being in possession or control of the gun because in such circumstances the possession in law will be that of the licensee.6. the next case on which reliance is placed is -- 'charu chandra v. emperor,' air 1914 cal 175 (1) (c). that was also a case of a servant taking a gun on behalf of his master to a magistrate for purposes of renewing the license. it was held that in those circumstances no offence under section 19 (f) of the arms act was committed.in this case also certain observations were made to the effect that the petitioner v/as not possessing the gun with the object of using it. with all respect we may say that the use to which the gun may or may not be put is entirely immaterial for purposes of an offence under section 19 (f). the gun in this case was being carried by a servant, and in law the possession in the circumstances was that of the master.7. lastly reference was made to -- 'a. malcolm v. emperor,' air 1933 - cal 218 (d). in,that case, it was said with respect to one of the accused malcolm that the weapon was made over to him merely for the purposes of negotiating a sale, and therefore such possession, was not unlawful inasmuch as he was not in possession of the weapon, with the intention of using it as a weapon.we must again say with respect that the purpose to which the weapon is to be put is not material when determining whether an offence under 6. 19 (f) of the arms act has been committed. in this case also it can be said that malcolm's possession was only the possession of the licensee, though this appears to be a border-line case.8. none of the cases, therefore, on which learned counsel for the accused relies is a case of pledge. in the case before us the accused took the gun from mahendra singh as a security for the sum of rs. 300/- and odd which mahendra singh owned to him. he also took a document from mahendra singh to that effect, and in that document it is mentioned that the pistol was being pledged with the accused, and that the accused would be entitled to sell it.whether the accused could legally sell the pistol in face of the provisions of the arms act is a different matter altogether. what we have to see is whether, in such circumstances, the possession was that of the accused or still of the licensee. we are quite clear that in these circumstances where the weapon is pledged in order to secure some money due from the licensee, the possession passes from the licensee to the pledgee.if we were to hold that even in such a case possession is still of the licensee, the purpose of the arms act would be completely negatived. it would then be open to anybody to take a license and pass on the weapon to an undesirable person through a pledge, and the control that the arms act envisages would disappear.we are therefore of opinion that in a case of pledge or pawn possession passes from the licensee to the pawnee or pledgee, and if the pledgee or pawnee has no license to keep the gun in, his possession, he is guilty under section 19 (f) of the arms act.we may in this connection refer to -- 'state v. jayantilal laxmishanker,' air 1951 sau 58 (e), where also a similar view was taken. we are, therefore, of opinion that the magistrate was wrong in acquitting the accused under section 19 (f) of the arms act.9. then comes the question of sentence. the accused is a young man of twenty years of age, and probably did not understand that it was an offence to take a fire-arm in pledge like this. under these circumstances we think that ends of justice will be met by imposing on him a fine of rs. 25/-.10. we, therefore, allow the appeal, convict ram kishan under section 19 (f) of the arms act, and sentence him to a fine of rs. 25/-. in lieu of non-payment of fine, he will undergo one week's rigorous imprisonment. the fine will be paid within two' weeks.