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Kochu Velu Vs. Joseph - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1980)IILLJ220Ker
AppellantKochu Velu
RespondentJoseph
Cases ReferredVelu v. The Executive Officer
Excerpt:
.....a good number of cases in which it would not be easy to determine whether the employment is of a casual nature and it is in the determination of such cases that any discussion on the question by the court would be of assistance. more interesting is the analogy or illustration given by the learned judge. there may be no better illustration to understand this concept than the case before us itself. can it be said that a person who owns a cocoanut garden and who must necessarily enjoy it by having the cocoanuts plucked from the trees from time to time for which purpose he must engage professional climbers is engaging such persons in an employment of a casual nature? .then taking the last edition of the imperial dictionary, which is a very good dictionary, we find it a little more..........context of the act appears to be 'depending on chance; depending on or produced by chance.' the term casual need not be understood in contradistinction to permanent or constant. the learned judge said in that decision as to the nature of casual employment thus:the question whether the employment of a workman is of a casual nature depends on the evidence as to the nature of the employment....the word 'casual' as used in this act is not a term of precision, and is incapable of being exactly defined. it is used here not as a term of precision but as a colloquial term: knight v. bucknill [1913] 57 sol. jo. 245(j).justice chhangani of the rajasthan high court has also expressed the same view as to the meaning of the term 'casual' in madanlal v. mangali . the learned judge observed that it.....
Judgment:

Subramonian Poti, J.

1. Interesting questions are raised in this appeal which is at the instance of a person who claimed the benefit of the Workmen's Compensation Act, but who was denied the benefit under the Act by the order of the Commissioner for Workmen's Compensation under appeal. The appellant was one engaged in the avocation of climbing coconut trees to pluck the nuts. The opposite party who is the first respondent in the appeal owns a small coconut garden and the applicant who is the appellant here was engaged by the opposite party for climbing the coconut trees from time to time to crop the nuts from the trees periodically. On 16-6-1972 while the applicant was at his work of climbing cocoanut trees in the cocoanut garden belonging to the opposite party to pluck the nuts he fell down resulting in fracture of the left hand. He is said to have been hospitalised. Later he underwent Ayurvedic treatment. The applicant is said to have become a permanent invalid as a result of the accident. He claimed compensation of Rs. 5,000 from the opposite party on account of the accident. That the applicant fell down from the trees while engaged in climbing it is not disputed. That the tree from which the applicant fell down belonged to the opposite party and the applicant was engaged by the opposite party was also not in dispute. But according to the opposite party even so the provisions of the Workmen's Compensation Act cannot be invoked by the applicant as he would not be a workman within the meaning of the term in the said Act. The first respondent is said to own only about 100 cocoanut trees and the work of climbing these trees would take only about 6 or 7 hours once in about 50 days. The first respondent had no trade or business in cocoanuts and, therefore, according to him, the applicant could not be said to have fallen from the tree while he was engaged in the work which was part of the trade or business of the respondent. It is further said that by its very nature the work undertaken by the applicant was of a casual nature and for that reason too he would not be a workman within the meaning of the Act.

2. The Workmen's Compensation Commissioner seems to think that if a person meets with an accident while working for another but not in connection with any trade or business of the other he would not be a workman within the meaning of the Act and the Act would not apply to him. On such premises the application has been dismissed. The appeal is against that order.

3. The term 'workman' is defined in the Workmen's Compensation Act, 1923 in Section 2(n) and that definition reads thus:

(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--

(i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890 (9 of 1890), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Schedule II,

Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the armed forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.

Section 2(n)(i) has no application here as the applicant is not a railway servant. That the applicant is one whose monthly wages calculated on the basis of his remuneration would be less than Rs. 500 as is specified in Schedule II is also not in doubt. Schedule II had been amended so far as this State is concerned to include climbing of palm trees as one of the occupations coming within the Schedule. But in view of the indication in the definition that 'any person' mentioned in the definition must be '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' we have necessarily to examine whether this exclusion will apply to the case before us. This exclusion is in two parts, the first, exployment being of a casual nature and the second the employment being for purposes other than that of the employer's trade or business. The exclusion will evidently apply only if both the conditions are satisfied. The term 'and' used in the definition shows that the parts are conjunctive and not disjunctive. But since the Workmen's Compensation Commissioner seems to take a different view and learned Counsel Sri M.V. Joseph rather vehemently supports the view we are making a detailed examination of the question here.

4. The matters that may call for consideration are: (1) To exclude a workman who would otherwise fall within the scope of the Act is it necessary to show the existence of both the requirements, namely, employment of a casual nature as also employment otherwise than for the purpose of the employer's trade or business or is it sufficient if one of these is shown 7(2) On whom is the burden of showing that the exclusion will apply; whether it is on the employee or on the employer? (3) What exactly is the scope of the term 'employment of a casual nature'? and (4) Could the derivation of agricultural income by a person by the process of agriculture be said to be a business within the meaning of the term used in Section 2(H) of the Act? Once we find the answers to these questions it will be easy to answer the case before us applying the same. Therefore, we propose to go into these questions.

5. The term 'workman' appears in many statutes and the construction of the term in the context of one statute cannot be applied as such in understanding the same term used in another statute, for, the meaning and content of the term would depend upon the scheme of the Act concerned. The preamble to the Workmen's Compensation Act provides ample evidence of the fact that the Act is intended to provide for the payment by certain classes of employers to their workmen compensation for injury caused by accident. Such a measure has to be construed giving the widest scope to the ameliorative and beneficial process intended by the legislation, A pedantic approach to the statute to give a construction which does not serve its object should be avoided. That, having regard to the scheme and purpose of the Act, a wider construction is to be preferred to a narrower one is the view expressed in Koynabai v. Bombay Municipality A.I.R. 1938 Bombay 155 and in Chasiram v. Smt. Natmibai : (1960)ILLJ789MP .

6. That the two requirements mentioned in Section 2(n) of the Act justifying exclusion are to be cumulatively applied appears to us to be evident from the section itself. This is more or less the view expressed by almost all Courts in India on the interpretation of this section. We may refer to the decision in Sitharama v. Ayyaswami A.I.R. 1956 Mad. 212, a decision which we may, with great respect, observe, has exhaustively considered the scope of the term workmen. Referring to the definition the learned Judge observed in that decision thus:

A person to be excluded from the definition of 'workman' as defined in this clause must not only be 'whose employment is of a casual nature' but also one 'who is employed otherwise than for the purposes of the employer's trade or business. Both these qualifications must be satisfied in order to exclude a person from the category of workman under the Act.

The learned Judge goes on to notice a series of decisions wherein this view has been expressed. The learned Judge further says thus:

Thus, if a man is employed for the purpose of a trade or business, the employer is liable even if the employment is of a casual nature.

The same view has been expressed in the later decisions and reference may be made to the decisions in Borelal v. Bropasibai : AIR1963MP24 , Raj Rani v. Firm Narsing Das A.I.R. 1964 Punj. 315 and in Kamla Devi v. B.N. Textile Mills Ltd. 1975-II L.L.J. 81.

7. Evidently when a person is shown to be a workman by reason of the fact that he satisfies the requirement of being employed on monthly wages not exceeding Rs. 500 in any capacity as is specified in Schedule II, to take his case out of the Act by reason of the exclusion, the burden of proof is necessarily on the employer. That is because the proof is of exclusion and but for such exclusion the Act would apply. That this is the rule with regard to the burden is held in the decisions in Madanlal v. Mangali , Raj Rani v. Firm Narsing Das, (supra), Gorclal v. Dropadibai, (supra) and Sitharama v. Ayyaswami, (supra).

8. The more important question in this case is the construction of the term 'employment is of a casual nature'. We must notice here that sometimes this is assumed lo be synonymous with 'employed casually.' That is not so 'Employment of a casual nature' denotes a concept different from 'casually employed', for in the one case the question is as to the nature of the employment while in the other the question is how the person has been employed. We will consider the meaning of the term 'casual'.

9. The definition of the term 'workman' is modelled on the English Act and naturally over the years there were occasions for Courts to consider the scope of the term 'casual' in the corresponding provision in the English law. Though it may be possible to explain what casual is, it would not be possible to lay down the definition of the term as ultimately whether the employment is of a casual nature or not must depend upon the facts of the case. The explanation can only serve as a guide in determining the question when it arises. As observed by Beaumont, C.J., in the decision in Nadirsha Hormusji v. Krishnabai Bala A.I.R. 1936 Bom. 199, there will be cases where it may be easy to say on the face of the facts disclosed whether a particular employment is in the nature of a casual one or it is not. But in between the two cases there would be a good number of cases in which it would not be easy to determine whether the employment is of a casual nature and it is in the determination of such cases that any discussion on the question by the Court would be of assistance. Justice Ramaswamy of the High Court of Madras has in Sitharama v. Ayyaswami, (supra) marshalled all the dictionary definitions of the term 'casual' in an attempt to consider which of the definitions is suited to the Workmen's Compensation Act. The popular definition of casual which may be acceptable in the context of the Act appears to be 'depending on chance; depending on or produced by chance.' The term casual need not be understood in contradistinction to permanent or constant. The learned Judge said in that decision as to the nature of casual employment thus:

The question whether the employment of a workman is of a casual nature depends on the evidence as to the nature of the employment....The word 'casual' as used in this Act is not a term of precision, and is incapable of being exactly defined. It is used here not as a term of precision but as a colloquial term: Knight v. Bucknill [1913] 57 Sol. Jo. 245(J).

Justice Chhangani of the Rajasthan High Court has also expressed the same view as to the meaning of the term 'casual' in Madanlal v. Mangali . The learned Judge observed that it cannot be said to have one uniform meaning. The learned Judge quoted a passage from the decision in Nadirsha Honnusji Siclhwa v. Krishnabai Bala A.I.R. 1936 Bom. 199 and concluded thus:

Indeed, it is very difficult to lay down a precise test for determination, whether a particular employment is casual or not. We may, however, adopt rough tests by posing questions, whether the employer not ordinarily requiring the employment of a labourer, employs some labourer, or whether an employee not ordinarily standing in need of employment, by chance accepts a particular employment.

Shamsher Bahadur, J., in Raj Rani v. Finn Nursing Das A.I.R. 1964 Punjab 315, noticed the view expressed by the Rajasthan High Court in Sitharama v. Ayyaswami A.I.R. 1956 Mad. 212, that casual employment is employment necessitated by chance circumstances, and further observed thus:

In construing what is an employment of a casual nature, it is the nature of the service which has to be looked at and not its duration. With the progress of time the concept and the circumstances in which a workman is entitled to compensation has considerably widened and a liberal construction has to be put on this phrase.

It would be profitable to refer to the decision of the Kings Bench in Hill v. Begg [1908] 2 K.B. 802. A man who earned his wages by doing odd jobs as a window cleaner was employed at irregular intervals for about 6 weeks during a period of two years. There was no agreement between the parties of either permanent or periodic employment. The question arose whether the employment was of a casual nature. On the facts of that case it was found that in the absence of sufficient connection between the employer and the workman to render the employment of a nature which caused obligations or expectations mutually on the parties it could only be said that the employment was only of a casual nature. In discussing this question Buckley, L. J., highlighted the distinction between the concept of the term 'casually employed' which is not the term used in the section and the term 'whose employment is of a casual nature' which is used in the relevant Section 13 of the English Act that corresponds to Section 2(n) of the Workmen's Compensation Act. The learned Judge observed in this context thus:

I pause here to point out that the words are not 'who is casually employed', but 'whose employment is of a casual nature.' I have to investigate What is the character of the man's employment, not what is the tenure of the employment. Is the employment one which is in its nature casual?

More interesting is the analogy or illustration given by the learned Judge. Reference is made to the case of a host entertaining his friends at dinner. For years he might have been in the habit of holding out invitations to his friends and it may also be that on such occasions he is engaging the same men to come in and wait at his table or assist at the reception. This employment, according to the learned Judge, would be regular. But the employment itself would be of a casual nature, for, there is no knowing whether the host may throw any dinner at all. He may discontinue it in which case either none of the waiters would be invited or only some of them would be invited. Even in a case where the employment is regular if the nature of the employment is casual Section 13 of the English Act would not be attracted.

10. We see considerable force in the approach to the construction of the Section as indicated by Lord Buckley in the above decision. When we consider Section 2(n) the question is not whether a particular person is casually employed but whether the employment is of a casual nature. There may be no better illustration to understand this concept than the case before us itself. Can it be said that a person who owns a cocoanut garden and who must necessarily enjoy it by having the cocoanuts plucked from the trees from time to time for which purpose he must engage professional climbers is engaging such persons in an employment of a casual nature? The employment is not of a casual nature at all, for, there is regularity in the employment. Once in 50 days or so the professional climber has necessarily to be engaged. It is not as if the engagement is by chance or accident. May be he may engage different climbers on different occasions. That will be a case of his casually employing persons. There may be regular employment of persons in employment of a casual nature, casual employment of persons in an employment of casual nature, regular employment of persons in employment of regular nature and casual employment of persons in employment of regular nature. The section takes in casual or regular employment of persons in employment of regular nature. In other words we need only consider whether employment is of a nature which is not casual in character. If we find that the employment by way of climbing the cocoa-nut trees for the purpose of plucking nuts periodically is not casual at all that would give a complete answer in this case. The question whether the employment of the person concerned is casual may itself be not relevant. Even if it be relevant so far as this case is concerned it would not be difficult to answer, for, on that aspect of the case there cannot be much of a controversy on facts. There is no case that the employment of the applicant is by chance or accident or that the appellant is occassionally employed. It is only because the employment is once in a period of fifty days or so that the contention that employment is casual is urged. Casualness, in the context in which it is used in the Act indicates employment by chance. When a person is being regularly employed periodically it cannot be said that he is employed casually.

11. There is another equally important question raised in this case. It has been assumed that an agriculturist enjoying agricultural lands by direct cultivation cannot be said to be carrying on a business within the meaning of that term in Section 2(n) of the Act. To State so in such wide terms may not be correct. Whatever might have been the narrow the concept of business at one time, today it has come to be recognised that even carrying on the avocation of agriculture can be said to be carrying on a business of agriculture. The term 'business' is of wide import. Any enterprise entered into with a view to obtain profit and on which time, attention and resources of a person are expended would be business. That, we think, is the scope of the term 'business' in the context of the Workmen's Compensation Act. We may refer in this context to the observation of Jessel, M.R. in Smith v. Anderson [1880] (XV) Ch. Div. 247 at page 258:

Now, 'business' itself is a word of large and indefinite import..Then taking the last edition of the Imperial Dictionary, which is a very good dictionary, we find it a little more definite, but with remark which is worth reading : Business, employment; that which occupies the time and attention and labour of men for the purpose of profit or improvement. That is to say, anything which occupies the time and attention and labour of a man for the purpose of profit is business. It is a word of extensive use and indefinite signification.

In the context of the Panchayat Act, 1960 which sought to tax professional income a question arose before this Court in Velu v. The Executive Officer, Erumayoor Panchayat (1967) K.L.J. 443, whether a person who was engaged in agricultural operations was liable to pay professional tax under Section 69 of the Panchayat Act. The power to levy such tax in derived from item 60 in List II of 7th Schedule to the Constitution which reads 'Taxes on profession, trades, calling and employment.' The Court took the view that the pursuit of agriculture is the pursuit of a calling. In a later Division Bench of this Court the matter again came up for consideration. The Court did not propose to distinguish between business, calling, occupation and avocation as it was not necessary in that case. Giving the widest meaning to the expressions and reading these expressions according to common sense principles the Court found that the pursuit of agriculture is a calling. The terms 'business', 'calling', 'occupation' and 'avocation' are not terms used as mutually exclusive but used to see that cumulatively the widest scope is given. The concept of the term 'calling' is wide enough to comprise even business. We are living in an age where attention to agriculture can be as business like as to any other traditional business or trade and therefore there would be no justification not to treat organised activity of agricultural enterprise as business. Whether it is to be considered as business in a given case need not necessarily depend upon the extent of the agricultural holding. It would be a question of fact in each case whether the agricultural activities of a person amounts to business. We are not deciding either way on the facts of this case, for, any decision on a question of fact must be reached by the Commissioner and not by this Court.

12. From what we have indicated it would be seen that the applicant here was employed by the respondent in an employment which is not of a casual nature. In this view it may not be necessary to consider the further question in this case as to whether the derivation of income from the small cocoanut garden of the respondent is business or not. What is the quantum of compensation to be awarded is a matter for the Commissioner to determine, a finding on which must be a finding of fact. Therefore, we set aside the order of the Commissioner and remit the case back to him for fresh disposal in the light of the findings here. That shall be done expeditiously. Parties are directed to suffer costs.


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