1. This is an appeal against the order of Sri M. N. Nagrashna, Judge, Second Labour Court, Ahmedabad, declaring that the change made by the appellants in the practice of paying kharchi to its workers for two days in a month was an illegal change. It appears that this concern was started sometimes in November 1953. Kharchi was paid twice a month during all the months from December 1953 till it was stopped in July 1957. It was paid more or less round about 13, 14 or 15 and again round about 23, 24 or 25. It was paid once only in November 1953, February 1954, December 1954 and February 1956. Thus out of a total of 42 months during which the concern was in existence, the payment was made twice a month on 38 occasions and once a month on 4 occasions. The limited question for consideration before me is whether the payment of kharchi in the manner in which it was done amounted to a customary usage or privilege and the withdrawal thereof amounted to a withdrawal of a privilege or a change in usage. There is no doubt that in order to acquire a right to such payment or in other words in order that it can be claimed that it had become usage, the practice must be existing for a long time. There does appear to me to be a fairly wide practice of paying kharchi twice a month existing in Surat though it is not clear whether such a practice prevails in the majority of concerns or not. The same practice of paying kharchi twice a month appears to have been adopted by this concern almost from its inception and continued till June 1957. The payment thereof for three or four years and in all on 38 occasions does appear to me to be a sufficiently long period to establish a usage.
2. The next question is whether there has been sufficient uniformity. It is true that the dates on which payments were made have varied but the practice or usage that is claimed is of payment of the kharchi not on any specific dates but twice during the month. Payment twice a months in my opinion has been sufficiently uniform and the uniformity is not destroyed by some little variation in the actual dates of payment.
3. It has again been urged that the payment has not been continuous because there have been four breaks. The first break which occurred in November 1953, in my opinion, may be ignored as it is not clear when exactly in November the concern was started and in fact the practice started from December 1953. It is true that on three occasions kharchi has not been paid twice during the month but only once, but a mere lapse on the part of an employer on certain dates would not be enough to constitute a break in continuity. There has been no assertion express or implied during this period by the employer that he was not bound to pay the same. The decision relied upon in Kanpur Sugar Works, Ltd., and their workmen 1955 II L.L.J. 419 shows that the non-payment of the retention allowance on certain occasions was in assertion of the right of the company that they were not bound to pay the same and so also its discontinuance for two years. There is no evidence whatsoever in the present case that the non-payment on these three occasions was in assertion of the right of the employer that he was not bound to pay the kharchi twice. A mere lapse on the part of the employer on some rare occasions unaccompanied by an assertion that he had a right to do so, would not, under the circumstances of the case, constitute such a break in continuity. In my opinion there is sufficient evidence in this case to establish a usage of the payment of kharchi twice a month to the workers and that there has been a change in this usage without giving notice of change. I therefore agree with the conclusion of the lower Court that the change made by the appellants in the practice of payment of kharchi to the workers twice in a month amounts to all illegal change. The appeal is therefore dismissed.