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Bachia Mistri Vs. Shanti - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad
Decided On
Reported inAIR1946All473
AppellantBachia Mistri
RespondentShanti
Excerpt:
.....working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain..........difficult of the three questions - which is whether the workman, who be it observed, may be in casual employment, provided that casual employment is for the purposes of the employer's trade or business, is 'employed...on monthly wages not exceeding three hundred rupees....' at first sight it is, we confess, tempting to say that a remuneration in the terms of eight annas a day cannot constitute an employment 'on monthly wages.' 'we perhaps should have said at an earlier stage that it was the not very handsome sum of eight annas a day on which parma was employed by the appellant. we have, however, been referred to two cases in india in the bombay and the lahore high courts respectively in which the view has been taken that the real meaning of the words 'employed.... on monthly wages.....
Judgment:

Braund, J.

1. This is an appeal which raises a short but interesting point under the Workmen's Compensation Act. The only question raised by the appeal is whether the deceased man, whose name was Parma, was a 'workman' within the meaning of Section 2(1)(n), Workmen's Compensation Act, 1923, as subsequently amended. The facts are very short. The appellant Bachia is a Mistri who carries on a contractor's business. So far as this particular case is concerned, it is only relevant to notice that he had a contract to carry out the annual repair and whitewashing of the District Board Hospital at Almora. It is common ground that for the purpose of fulfilling this contract the workman Parma was engaged by Bachia for some ten or twelve days. We have little or no other evidence as to what the employment of Parma had been before or was after his engagement on this contract, except that one witness has said that 'He did not work continuously, but only as required,' while another witness has said that 'He did not work in any fixed place but wherever he was employed.' In the course of his employment with the appellant Parma fell off a ladder while whitewashing the ceiling and walls of the hospital and he died as a result of this fall. The respondent is his daughter and she has been awarded a sum of five hundred and fifty rupees by way of compensation. The definition of a workman is contained in Section 2(1)(n) of the Act and so far as material is this:

(n) 'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is.... (ii) employed...on monthly wages not exceeding three hundred rupees, in any such capacity as is specified in Schedule 2....

2. Turning to Schedule 2, the appropriate heading of it is heading (viii) which qualifies as a workman any person who is 'employed in the construction, repair or demolition of'...certain buildings and other things:

3. The first question that arises is whether the whitewashing of the walls and ceiling of the hospital, in which Parma was engaged when he fell off the ladder, constituted an employment in the 'repair' of the hospital. That question might have been a more difficult one than it is to answer had we not had for our guidance the benefit of certain English decisions which are practically on all fours with the present ease. We do not propose to refer to them at length except to say that as recently as May 1945 the case in Berriman v. L. & N.E. Ry. Co. (1945) 1 K.B. 462 was decided by the English Court of Appeal on facts materially similar to the present facts. The case there was one in which a workman was engaged at the time he met with his accident in oiling the permanent way of an English Railway. It fell to be considered whether he was 'repairing' the permanent way and it was held that the word 'repair' was wide enough to cover a process which constituted the maintenance of the permanent way. Reference was made in the course of this case to other decisions and particularly to the authorities of Dredge v. Conway Jones & Co. (1901) 2 K.B. 42 and Hoddinott v. Newton Chambers (191) 1901 A.C. 49 in the House of Lords in which again the precise words 'construction, re-pair or demolition' fell to be considered. In these cases painting a house was held to be a repair and it followed that whitewashing a house was also held to be a repair. These authorities are not, of course, binding on us in India, but we see no sufficient reason not to accept gratefully the guidance they offer us and accordingly we have come to the conclusion on this part of the case that at the time he met with his accident Parma was employed in repairing the District Board Hospital.

4. The next question which arises is whether Parma was a person - to use the words of the definition itself-

other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business.

5. At first we were inclined to read that sentence disjunctively in the sense that it was an exception both of persons whose employment was of a casual nature and independently of those who were employed otherwise than for the purposes of the employer's trade or business. But on reflection that clearly appears not to be so. In order to take a person out of the definition what is required is that his employment should be both of a casual nature and that it should be otherwise than for the purposes of the employer's trade or business. We find that in In re Alam Singh : AIR1936All690 in this Court two learned Judges including the late Sir Shah Mohammad Sulaiman G.J. have taken the same view of the meaning of these words. They say:.Persons excluded from the definition are those whose employment is not only of a casual nature but who are employed otherwise than for the purposes of the employer's trade or business....

6. It is common ground here that the whitewashing which Parma was doing was being done by him for the appellant for the purposes of the appellant's trade or business. That being so, that part of the excepting sentence can never be fulfilled, and, there-fore, it is immaterial for our purposes to consider whether in other respects the employment of Parma was strictly casual or not.

7. There then remains the third question which we have to decide - and possibly it is the most difficult of the three questions - which is whether the workman, who be it observed, may be in casual employment, provided that casual employment is for the purposes of the employer's trade or business, is 'employed...on monthly wages not exceeding three hundred rupees....' At first sight it is, we confess, tempting to say that a remuneration in the terms of eight annas a day cannot constitute an employment 'on monthly wages.' 'We perhaps should have said at an earlier stage that it was the not very handsome sum of eight annas a day on which Parma was employed by the appellant. We have, however, been referred to two cases in India in the Bombay and the Lahore High Courts respectively in which the view has been taken that the real meaning of the words 'employed.... on monthly wages not exceeding three hundred rupees' is that the employment must be at such a rate of wages as on a monthly basis would not amount to more than three hundred rupees. The first of these two cases is that of ('38) 25 A.I.R. 1938 Bom. 110 : I.L.R. (1938) Bom. 44 in which Sir John Beaumont C.J. felt no doubt that the words in question meant

employed at wages which do not exceed] an average of three hundred rupees a month.

8. He said:

It seems to me quite impossible, reading this Act as a whole, to say that it was limited to workmen who are employed by the month so that it would not include workmen employed by the day or by the week or by the year.

9. In the same sense is a decision of two of the learned Judges of the Lahore High Court in Cooling Equipment Co. Ltd. v. Mt. Zainab Bibi ('43) 3 A.I.R. 1943 Lah. 52. They took the same view of the construction of the words in question, but it is noticeable that they appear to have insisted on the further qualification that the employment should be 'regular.' They say:.We do not consider that a man in regular employment who happens to be paid by the day, is outside the category of a monthly wage earner....

10. With respect we agree with both these decisions, but should desire to add that in our view it was possibly unnecessary to place that emphasis which the learned Judges of the Lahore High Court have placed on the qualification that the employment should be 'regular.' Ex hypothesi, by virtue of the first part of the definition, certain types of employment of a casual nature must be capable of being included within the meaning of the expression 'employed on monthly wages' since it is not all cases of employments of a casual nature, as we have pointed out above, that are excluded from the definition of a workman. It would appear, therefore, necessarily to follow that there must be other cases in which the employment is casual (and is, therefore, in that sense not regular) which can be included in the category of employment on monthly wages. We think, therefore, that possibly the emphasis on 'regular' employment is unnecessary. We with respect entirely agree with the learned Chief Justice of Bombay in thinking that it would be an absurdity if an employment at, for instance, three hundred rupees 'per quarter' were excluded from the definition, whereas an employment at a hundred rupees a month was included. We think that the real purpose of the insistence on employment on monthly wages not exceeding three hundred rupees is merely to fix a financial upper limit of means in the ease of the deceased workman. Looked at from that point of view it would not, for the purpose of carrying out the intention of the Act, make the least difference whether, as a means of payment, he were paid, daily, weekly, monthly or even yearly. And this view of the matter is, we think, borne out by the provisions of Section 5 of the Act. If the Act were to be so narrowly construed as only to cover those workmen who received their wages on a strictly monthly basis, then, as far as we can see, there would be little or no necessity why any artificial basis of calculation should have been introduced, or deemed to exist, in the cases referred to in Section 5. We are further fortified in the conclusion we have reached by making a comparison of the defining words of the English Act of 1906. Those words are:

Workman does not include any person employed otherwise than by way of manual labour whose remuneration exceeds two hundred and fifty pounds a year....

11. There remuneration is assessed 'per annum,' no matter when and how it is made payable. Such surely was the intention also of the Indian Act. For all these reasons we think that this appeal must be dismissed with costs.


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