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Khatija Abdulla Ibrahim Tai and ors. Vs. the National Tobacco Company of India Ltd., Calcutta - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 21 of 1969
Judge
Reported in(1972)0GLR205; (1973)ILLJ447Guj
ActsWorkmen's Compensation Act, 1928 - Sections 2 and 30
AppellantKhatija Abdulla Ibrahim Tai and ors.
RespondentThe National Tobacco Company of India Ltd., Calcutta
Cases ReferredState of Bombay v. Hospital Mazdoor Sabha
Excerpt:
labour and industrial - compensation - sections 2 and 30 of workmen's compensation act, 1928 - deceased died in accident arising out of and in course of employment - appellants (dependents) filed application for compensation before respondent - appellants not satisfied with amount of compensation granted - respondent contended that section 38a not attracted to them so application not maintainable - issue whether deceased was employee of respondent and respondent had set up commercial establishment - as per definition of commercial establishment there is no emphasis on premises - emphasis on organisation carrying on trade in commercial manner - respondent was commercial establishment and deceased was employee of establishment - deceased entitled to compensation - held, appellants entitled.....d.a. desai, j.1. this appeal arises out of an application made by one bai khatija abdulla ibrahim tai and her seven children as dependants of deceased abdulla ibrahim tai who died in an accident on 19th october, 1962 near sanand in ahmedabad rural district. deceased abdulla ibrahim tai was appointed as a salesman or propagandist by the national tobacco company of india limited, calcutta as per its letter of appointment dated 25th may, 1957 on a basic monthly salary of rs. 56 plus dearness allowance of rs. 20 per month. as per the terms of the appointment he was to work as salesman or propagandist for expanding the sales of the cigarettes manufactured by the respondent-company. the head office of the respondent-company is situate at calcutta. according to the applicants abdulla ibrahim tai.....
Judgment:

D.A. Desai, J.

1. This appeal arises out of an application made by one Bai Khatija Abdulla Ibrahim Tai and her seven children as dependants of deceased Abdulla Ibrahim Tai who died in an accident on 19th October, 1962 near Sanand in Ahmedabad rural district. Deceased Abdulla Ibrahim Tai was appointed as a salesman or propagandist by the National Tobacco Company of India Limited, Calcutta as per its letter of appointment dated 25th May, 1957 on a basic monthly salary of Rs. 56 plus dearness allowance of Rs. 20 per month. As per the terms of the appointment he was to work as salesman or propagandist for expanding the sales of the cigarettes manufactured by the respondent-company. The head office of the respondent-company is situate at Calcutta. According to the applicants Abdulla Ibrahim Tai died in a motor accident while travelling in the jeep belonging to the respondent-company on 19th October, 1962. According to the appellants as the deceased Tai was an employee of the company and died in an accident arising out of and in the course of his employment, he was entitled to receive compensation according to the provisions of the Workmen's Compensation Act, 1923. Before filing the application for recovering compensation on 19th August, 1963, the appellants served a notice on 8th November, 1962. In the course of correspondence the respondent company agreed to pay only Rs. 2,000 by way of compensation and the amount standing to the credit of deceased Tai in the provident fund account reserving the right to make certain deductions. The appellants having been dissatisfied with the offer made by the company filed application before the commissioner for Workmen's Compensation for recovering compensation in the amount of Rs. 7,000. The respondent-company filed what is styled as a preliminary statement which is as vague as vagueness could be suggesting subsequently that deceased Tai was not an employee within the meaning of the Bombay Shops and Establishment Act, 1948 (hereinafter referred to as the Act) and that whatever business organisation the respondent-company has set up in Ahmedabad it is not a commercial establishment within the meaning of the Act and, therefore, S. 38A could not be attracted and, therefore, the application for compensation could not be maintained. When the evidence was being recorded in the case the learned Advocate appearing for the respondent-company took an objection that until the preliminary contention as to the maintainability of the application is not decided, the appellants should not be allowed to lead evidence on the merits of the case. The learned Commissioner overruled the objection and proceeded with recording evidence. The order of the learned Commissioner overruling the objection was challenged in Civil Revision Application No. 390 of 1964 in this Court. While rejecting the revision application, our learned brother Divan J. observed that under S. 38A of the Act the provisions of Workmen's Compensation Act and the Rules made from time to time thereunder apply mutatis mutandis to employees (other than those who are in receipt of monthly wages exceeding four hundred rupees) of an establishment to which the Bombay Shops and Establishments Act applies and in which at least five employees are employed on the date of the accident as if they were workmen within the meaning of the Workmen's Compensation Act. Our learned brother suggested that in view of the aforementioned provision the Commissioner will have to examine whether the conditions laid down in the Workmen's Compensation Act are satisfied or not. Accordingly when the matter went back, the parties led their evidence. The learned Commissioner framed two issues. First issue was whether the applicants prove that the provisions of the Act apply to the deceased by virtue of S. 38A of the Bombay Shops and Establishments Act; and second issue was what compensation was payable to the dependents of the deceased. The learned Commissioner observed that in the definition of 'commercial establishment' it is implicit that these must be some place, premises or location where the establishment is located and in which some employees must be working, and that the respondent-company has no such place or premises from where its business organisation is functioning and, therefore, the respondent-company has not set up any commercial establishment in this State and, therefore the deceased was not an employee working in a commercial establishment in this State and was, therefore, not an employee within the meaning of the Act and application under S. 38A for recovering compensation would not maintainable. On the second issue, the learned Commissioner held that looking to the fact that the monthly salary of deceased Tai was Rs. 76 only; applicants would be entitled to compensation in the amount of Rs. 2,400 only, but that finding was merely incidental. We would point out that the learned Commissioner has committed a serious error in recording the finding on the second issue ignoring the factual aspect of the matter. As the learned Commissioner dismissed the application consistent with the finding on the first issue, the appellants preferred first appeal under S. 30 of the Workmen's Compensation Act to this Court being First Appeal No. 84 of 1967. This appeal come up for hearing before our learned brother V. R. Shah, J. On behalf of the respondents same contention was raised namely that as the respondent-company has not set up commercial establishment in this State deceased Tai was not a workmen within the meaning of the word in the Workmen's Compensation Act or an employee within the meaning of the Bombay Shops and Establishments Act and, therefore, the application made by the appellants would not be maintainable. This contention found favour with our learned brother and accordingly, the appeal preferred by the appellants was dismissed. The appellants thereupon preferred this appeal under clause 15 of the Letters Patent.

2. The only relevant question that falls to be determined in this case is whether deceased Tai was an employee of the respondent-company and the respondent-company has set up a commercial establishment in this State within the meaning of the words 'employee' and 'commercial establishment' in the Bombay Shops and Establishment Act. That would immediately raise the question as to the true construction of the definition of the expression 'commercial establishment'; and after finding out the meaning of the expression 'commercial establishment' to determine whether the respondent-company has any commercial establishment in this State. The facts which are not in dispute lie within a narrow compass. Deceased Tai was employed by the respondent-company whose head office is at Calcutta as salesman or a propagandist on a monthly salary of Rs. 56 plus dearness allowance at Rs. 20 and travelling allowance at certain rate in the year 1957. The deceased was working at Rajkot and was required to tour certain places in the interior. At the time of his death salary of deceased Tai was Rs. 62 per month plus Rs. 20 D.A. and other allowances. One Mr. R. R. Chopra who has given evidence on behalf of the respondent-company has given his designation as circle in charge operating from Ahmedabad and he has stated that there were 15 salesmen like deceased Tai. Deceased Tai was working under him and operating in different districts in this State. On these undisputed facts the question that arises for use consideration is whether there is any commercial establishment of the respondent-company within this State within the meaning of that expression in the Act.

3. At the outset we should make it distinctly clear that in fact the respondent has not specifically raised the contention now urged by it and, therefore, it ought not to have been permitted to raise this contention at any stage of this litigation. In the written statement the contention taken was that the application was not legally maintainable and that the deceased was not company's workman as per the provisions of the Workmen's Compensation Act, and, therefore, application is not maintainable. On these averments it was contended that the Commissioner for Workmen's Compensation has no jurisdiction to entertain the petition. From these vague averments it is now sought to be contended that there is no commercial establishment of the company in this State. In fact till the matter was argued before our learned brother Divan, J. no contention was taken on behalf of the respondent that the respondent-company has not set up any commercial establishment in this State. Probably the clue to take up this contention was for the first time taken from the judgment of our learned brother; and if such be the state of pleadings in fairness to the applicants the learned Commissioner ought not to have permitted the respondent to agitate this contention at the initial stage; but once a direction was given that this aspect may be inquired into the contention was permitted to be taken. As the contention has been agitated both before the learned Commissioner and before our learned brother V. R. Shah J., it would not be proper to overrule the contention on the technical ground that it was not specifically pleaded in the written statement.

4. Mr. B. R. Shah, learned advocate who appeared for the respondent-company, vehemently urged that unless there is a place abode or premises in which or from where commercial establishment functions, there cannot be any commercial establishment within the meaning of the expression 'commercial establishment' in the Act. 'Commercial establishment' is defined in S. 2(4) as under :

''Commercial establishment' means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade, or profession and includes a society registered under the Societies Registration Act, 1860 and a charitable or other trust, whether registered or not which carries on whether for the purpose of gain or not, any business trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment'.

We may at this stage also refer to the definition of the word 'establishment' in S. 2(8). It reads as under :

''Establishment' means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment to which the Act applies and includes such other establishment as the State Government may by notification in the Official Gazette declare to be an establishment for the purpose of this Act;'

Word 'establishment' has a wide meaning given to it in the Act. That appears to have been done for a very valid reason. The Act is as we shall presently point out a benevolent legislation for ameliorating conditions of service in some of the establishments sought to be covered by the Act. There are some benefits which are common to all types of establishments sought to be covered by the Act, namely, a shop, a commercial establishment, a residential hotel, a restaurant, a tea house, a theatre or any place of public amusement or entertainment. Wherever certain provisions are to apply to all types of establishments the legislature wanted to use the word 'establishment'. The legislature in order to shorten the length of the section would be able to use the word 'establishment' so as to cover up all different types of establishments. Therefore, the word 'establishment' has been given a comprehensive meaning for the purpose of the Act to include all types of establishments sought to be covered by the Act. All different types of establishments sought to be included in the expression 'establishment' have been separately and independently defined in the Act. 'Commercial establishment' is also defined as stated above. Therefore, when an attempt is made to understand the true import of the definition of the expression 'commercial' 'establishment'. 'establishment' it would be futile to refer to the definition of 'establishment'. Word 'establishment' in 'commercial establishment.' does not take its colour from the definition of expression 'establishment' in S. 2(8) of the Act. The meaning of expression 'commercial establishment' in S. 2(4) will have to be found out excluding for the time being the meaning assigned to the expression 'establishment' in S. 2(8) of the Act.

5. The question for our consideration is whether any establishment to be commercial establishment must have a place, premises, location or abode from where it must be operating. Commercial establishment means an establishment which carries on any business, trade or profession or any work in connection with or incidental or ancillary to any business, trade or profession and includes various other things set out in the section but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. At any rate, in the definition we see nothing which indicates that before an establishment can become a commercial establishment it must have a certain fixed place or abode, premises or location from where it operates. The idea of premises is not implicit in the definition of 'commercial establishment'. If the emphasis was on premises in 'commercial establishment' the definition would be rendered absurd if the expression 'premises' is substituted in place of establishment. So substituted the definition would read 'commercial establishment' means premises which carries on any business, trade, etc. No business, trade or profession can be carried on by the premises. It is an establishment which carries on business. The establishment may be an individual firm, a co-operative society, a company, or an association of persons having a trade name. Such an establishment incidentally may operate from a certain place. But it cannot be said that it is impossible to conceive of a commercial establishment having no fixed place or abode or premises from where it operates. In other words, it is not possible to accept the submission that one cannot conceive a commercial establishment having no premises of its own. The dictionary meaning of the words 'to establish' in Black's Law Dictionary, Fourth Edn. at p. 643 is given as organize to originate, to prepare, to set up, to form, to found, to found and regulate. Mr. Shah referred to the expression 'establishment of business' in Words and Phrases legally defined by John B. Saunders, Vol. 2, Second Edn. p. 179. The author has given the meaning of establishment keeping in view S. 274 of the Companies (Consolidation) Act, 1908 which required every company incorporated outside the United Kingdom to do certain things within one month from such establishment. Construing the phrase 'establishment a place of business', the author pointed out that that expression seems to point to this that the company must have a local habitation of its own. This meanings of establishment would not assist us because the meaning is given in the context of the expression used in a statute which has positive reference to a place of business. If the words 'to establish' would also mean to organize, expression 'establishment which carries on any business, etc.' would in its grammatical sense mean an organization which carries on any business, trade, etc. In fact it is by now well-settled that in the definition of 'commercial establishment' there is no emphasis on premises. The emphasis is on the business activity of the organisation which carries on business, trade, etc. In this connection we would refer to Dr. Devendra M. Surti v. State of Gujarat, [1969 - II L.L.J. 116]. The question that came up before the Supreme Court was whether a dispensary of a medical practitioner would come within the purview of the words 'commercial establishment' and would be registrable. This Court was of the opinion that dispensary of a doctor was a commercial establishment and would be registrable under the Act. It was contended before the Supreme Court that in the definition of the expression 'commercial establishment' in S. 2(4) of the Act, the emphasis was not on the place from which the trade or professional activity was carried on but the emphasis was on the real nature of activity which must be commercial activity. It was contended that the intention of the legislature in enacting S. 2(4) was to include only those professions which are carried on in commercial manner. Approaching from this angle it was contented that dispensary of a doctor does not fall within the definition of 'commercial establishment'. This contention found favour with the Supreme Court. The contention was accepted on both the grounds. We are more concerned with the ratio of the case by which it has been held that in the definition of expression 'commercial establishment' emphasis is not on the premises.

6. The aforementioned conclusion is reinforced if we were to refer to some of the other establishments to which the Act applies. The Act in terms applies to a shop, residential hotel, restaurant, eating house, theatre and other place of public amusement or a place of public entertainment. Each of the establishment to which the aforementioned Act applies has been defined in the Act. Section 2(24) defines 'residential hotel' to mean any premises used for the reception of guests and travellers desirous of dwelling or sleeping therein and includes a residential club. The definition is with reference to the premises where the hotel is located. Section 2(25) defines 'restaurant or eating house' to mean any premises in which is carried on the business of supply of meals, etc. Again, we may notice that emphasis is on the premises where the restaurant or eating house is situated. Section 2(27) defines 'shop' to mean any premises where goods are sold either by retails or wholesale or where services are rendered to customers, etc., Section 2(29) defines 'theatre' to include any premises intended principally or wholly for the exhibition of pictures, etc. Now, if definition of 'commercial establishment' is contrasted there is no reference to premises in the definition. Wherever the legislature wanted to emphasis the premises it has unmistakably done so while defining the expression. If the reference to premises is wholly omitted in the definition of 'commercial establishment' it would certainly appear that the establishment has hardly any reference to premises. It may be and ordinarily it would be that 'commercial establishment' would operate from a certain fixed abode but if a business organisation operates without any office in fixed abode and/or place where it is located, it would none-the-less be business organisation which if it carries on any business, trade or profession or any work in connection with or incidental or ancillary to any business, trade or profession, the organization would none-the-less be a commercial establishment. Therefore, in our opinion, a certain business organization which engages employees and of whom the said organization is the employer would be a commercial establishment despite the fact that it has no particular fixed place, premises, abode, or location albeit it must have an organization and the activity must be an organised business activity. The organization to be commercial establishment must not only be an organised activity for carrying on any business trade or profession but the activity must be carried on in a commercial manner. If these two conditions are satisfied it is wholly irrelevant that such an activity of which there is an employer and in which there are employees will not be a commercial establishment only because it has no particular premises from which it operates.

7. We may refer to a few cases referred at the hearing of this appeal. In Kalidas Dhanjibhai v. State of Bombay, A.I.R. 1955 S.C. 62, the question was whether the Honesty Engineering Works situated in Ahmedabad was a shop within the meaning of S. 2(27) of the Act. It may be noticed that the Supreme Court was not called upon to consider in this case whether Honesty Engineering Works would fall within the expression 'commercial establishment'. Their Lordships examined the case on the allegation whether Honesty Engineering Works would be a shop within the meaning of the act. Their Lordship noticed that the Act was a piece of social legislation designed partly to prevent sweated labour and the undesirable employment of women and young children and partly to safeguard the health and provide for the safety of employees. Having examined the object of the legislation and other provisions of the Act, their Lordships were of the opinion that the legislature never intended to rope in small establishments as the one in question in which the owner was an employer whose workmen were carrying on business in a very small way by going to certain local mills, to collect orders from them for spare parts and after manufacturing the parts so ordered in the workshop delivering them to the mills when ready and collecting the money therefor. It is undoubtedly true that in this case while examining the definition of the word 'shop' emphasis was laid on the premises where the goods are sold either by retail or wholesale or where the services were rendered to customers. Reference was made to Sakharam Narayan Kherdekar v. City of Nagpur Corpn. [1964 - I L.L.J. 156]; A.I.R. 1964 Bom. 200. In that case the Division Bench of the Maharashtra High Court was called upon to consider whether the office of advocate would be a commercial establishment within the meaning of the Act. It was contended that as the definition requires an establishment which carries on business, trade or profession, the normal meaning that can be given to this expression would be that there must be some organised activity carried on by one or more persons which can be described as business, trade or profession. Contrasting this expression with the definition of 'shop' it was contended that if the shop was to bear the meaning of a place or premises where any such activity is carried on, then it is improper to describe a commercial establishment as an establishment which carries on any business, trade or profession. It was also contended that it was not merely an establishment in the sense of premises in which business, trade or profession is carried on which is to be considered as within the meaning of Act but that establishment must be a commercial establishment. Repelling this contention, it was observed that it is not every establishment in the sense of premises or buildings where business, trade or profession is carried on that is intended to be governed by the Act, but only those premises carrying on one or the other of these kinds of activities which are of commercial nature. It was further observed that the word 'establishment' in 'commercial establishment' must have been used by the Legislature in the sense of place or premises. Having reached this conclusion which created certain difficulty in the interpretation of the expression 'commercial establishment' without any implication of premises therein, it was observed that phraseology in defining 'commercial establishment' was far from happy. In any case, since the decision in Devendra Surti's case, [1969 - II L.L.J. 116] (supra), it is crystal clear that in the definition of commercial establishment there is no emphasis on the premises but the emphasis is on the activity or organisation carried on in commercial way. Mr. Shah, however, urged that while interpreting the definition of 'commercial establishment' we must bear in mind the well-known canon of construction that when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. In other words, it was contended that the Court should adopt the principle of noscitur a sociis. When the doctrine of noscitur a sociis can be invoked was specifically considered in State of Bombay v. Hospital Mazdoor Sabha, A.I.R. 1960 S.C. 610. The contention in terms raised was whether a hospital set up by the State would be covered by the definition of 'industry' as given in the Industrial Disputes Act. While examining the definition of 'industry' it was contended that the Court should adopt the rule of construction noscitur a sociis. In this connection it was observed that this rule according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. It was observed that maxim ejusdem generis is only an illustration or specific application of the broader maxim noscitur or sociis. Their Lordships in this connection further observed as under :

'It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but where the object of the Legislature in using wider words is clear and free of ambiguity the rule of construction in question cannot be pressed into service.'

It becomes thus crystal clear that if the Legislature defined the words in wider amplitude for the purpose of covering a wider field, meaning so given by the Legislature for certain purposes cannot be cut down by referring to other words in conjunction with which the expression is used. If the Legislature intended to give a wider meaning for certain defined purposes it would be impossible to cut down the meaning merely by invoking the doctrine of noscitur a sociis. The Legislature defined the word 'establishment' in very wide terms. It included all types of establishments to which the Act was to be applied. Similarly, the words 'commercial establishment' used in S. 2(4) cannot be cut down by reading into a reference to the premises only because the concept of premises is implied in other establishment. If any such attempt is made to cut down the meaning of the expression 'commercial establishment' or to restrict its meaning it would lead to an undesirable consequence that a large number of employees to whom benefit was sought to be extended by giving wider meaning to the expression 'commercial establishment' would be kept out of this benevolent social legislation.

8. It was, however, very strenuously contended that every organised business activity must function from a certain place. It was, therefore, urged that the existence of a place or premises in implicit in the nomenclature of commercial establishment and, therefore, a commercial establishment without a place or premises from where it operates, spreads out or functions is inconceivable. It was, therefore, urged that every organized activity of a commercial character must have a focal point from where it functions and if the focal point is located in a premises that premises can be described as commercial establishment. We see no warrant for such an implication in the definition of 'commercial establishment'. One may organise business activity by employing large number of out-workers, a term which is known in the world of commerce, business and industry and has found place in the definition of workman in the Minimum Wages Act and in such a case if the activity is carried through by these out-workers the man who controls the activity would be the employer and outworkers would be employees notwithstanding the fact that there is no premises, place or abode from where this activity is carried on. A sales organisation with a regional officer at the head of a region and having salesmen in different pats of the State, the organisation having no specific office of its own would none-the-less be a commercial establishment if the organisation carries on any business, trade or profession, etc. Viewed from this angle, therefore, it is not possible to accept the Submission that there cannot be a commercial establishment within the meaning of the Act without any premises where it is located.

9. Assuming for a moment that the other construction is equally possible, the question would be which construction we would adopt. We will assume for the sake of this submission that in the definition of commercial establishment it is implicit that there must be a place, premises or abode which can be described as commercial establishment. In other words, for the purpose of this submission we must accept that without a particular premises, place or abode commercial establishment is inconceivable notwithstanding the fact that an organisation is carrying on business, trade or profession in a commercial way. It may be that the word 'establishment' though in its primary sense refers to an organisation, it may imply a place where the organisation is set up. Ordinarily any organized business activity will have its place from where it operates. But it is not possible to accept the submission that without premises there cannot be a commercial establishment. In a normal commercial activity, there would be an organization organising the activity and ordinarily such an organization will function from a certain place. The word 'establishment', if viewed from this angle, that it comprises within its fold both the organization and the place from which organization operate, the question in which construction we should adopt. Mr. Shah, however, urged that various provisions in the Act provide a clue to the construction of the definition of commercial establishment. Mr. Shah urged that unless the concept of premises is read in the definition, some of the provisions would not make any sense. Mr. Shah took us through the scheme of the legislation and pointed out that there are certain provisions which cannot apply at all unless there is a place or premises which can be described an commercial establishment. Mr. Shah referred to S. 7(1) which provides for registration of every kind of establishment and for registration and application has to be made in prescribed form. One of the informations to be supplied in the prescribed form is about the postal address of the establishment. Referring to S. 13(1) it was urged that provision as to opening and closing hours would make no sense if commercial establishment has no place which can be either closed or opened at time fixed by the statue. In the same way, it was urged that S. 14 which provides for daily and weekly hours of work in shops and commercial establishments, S. 15 which provides for interval for rest, S. 17 which provides for spread over in commercial establishments of employees, S. 18 which provides for holidays in a week in shops and establishments would be of no avail if the concept of premises is not read in the definition. Referring to Chapter VIII in which provision is made for cleanliness, ventilation, lighting, precautions against fires in respect of every kind of establishment it was urged that even these provisions have a reference to premises where commercial establishment is located. Referring to Chapter IX it was urged that the inspector appointed under the Act has a right to entry and inspection of the premises which again implies a concept of premises. Records are required to be maintained which must be available for inspection at a particular place. This aspect need not detain us at all. We have already pointed out that the Act is a piece of social legislation designed to ameliorate the conditions of workers in various types of establishments This becomes clear from the preamble and long title of the Act. Now when a legislation is enacted for extending various types of benefits to employees working in different kinds of establishments, it may be that in case of some all the benefits are available and in case of other those which can be extended and which are relevant would be extended and can be enjoyed by the employees. It would be illogical to hold that as all the provisions of the Act would not apply to a particular establishment unless the expression 'commercial establishment' is interpreted in a particular way as urged by the respondent that construction alone should be accepted even if thereby the benefit of the Act would be denied to a large number of workmen for whose benefit the Act is enacted. Such a construction might encourage the employer to defeat the provisions of the Act by a simple device. Therefore, if a commercial establishment has no fixed premises of its own and has no employee working on its premises the question of closing and opening hours would be irrelevant and similarly the provisions of lighting and ventilation, cleanliness and similar provision would have no application.

10. However, there are certain provisions such as leave, pay during leave, non-employment of children which would apply to outworkers also. In fact the Act recognises this very aspect by providing that in respect of certain class of employees. such as travellers, canvassers and such other employees who are declared by the State Government by notification in this behalf to be employees whose work is inherently intermittent, the provisions of S. 10 and S. 11 relating to opening hours and closing hours of shop, S. 13 opening and closing hours of commercial establishment, S. 14 daily and weekly hours of work in shops and commercial establishments, S. 15 interval for rest, Ss. 16 and 17 spread over in shops and commercial establishments, and S. 18 weekly holidays shall not apply in view of entry 12 in Schedule II of the Act.

11. Assuming that the concept of premises is implicit in the definition, it would appear that two constructions are possible and the question would be which construction we should adopt. It is canon of construction that where two constructions are possible one, which advances the purpose and object of legislation must be preferred to the one which defeats it. If this is the correct approach, we would like to recall that the act is a piece of social legislation designed partly to prevent sweated labour and the undesirable employment of women and young children and partly to safeguard the health and provide for the safety of employees. If such be the object we should adopt that construction by which benefits are extended to large number of employees rather than to adopt the other construction by which a sizable number of employees are excluded from the benefits of the legislation. If the construction canvassed for By Mr. Shah is to be accepted, the business organization which organizes sales activity may employ a number of propagandists, salesmen, out-workers without keeping an office or an organization and may operate from the other State, employ a large number of workmen in the other State and all these employees can be kept out of benevolent provisions of the statue by posing that the business organization has no premises in the State from where it operates. The present case would provide an apt example. National Tobacco Company, the respondent has India-wide organization. Evidence shows that it has 15 representatives working through an incharge located at Ahmedabad in this State. The business activity is organized on a large scale. There are stockists who execute the orders canvassed by the propagandist and placed with the company at Calcutta. But all these employees would be kept out of the benefits of this legislation if the construction canvassed for by Mr. Shah would be accepted. The moment the respondent sets up a small office all the benefits would be extended to these very employees. Could the application of such a social legislation depend upon such nebulous state of affairs In our opinion, therefore, it is not possible to accept the construction canvassed for by Mr. Shah because, in our opinion, it would defeat the very purpose for which the legislation is enacted.

12. In our judgment, in the definition of 'commercial establishment' there is no emphasis on premises, but the emphasis is on the organisation carrying on business, trade or profession in a commercial manner. Once this conclusion is reached, this case becomes quite simple. The respondent-company carries on business in cigarettes manufactured by it at Calcutta by appointing 15 salesmen and an incharge regional officer and by appointing stockists in this State. This organization would be a commercial establishment within the meaning of the expression in the Act and deceased Tai was an employee of the said commercial establishment.

13. Assuming we are not correct in the construction which we are placing on the definition of 'commercial establishment', that there is no emphasis on the premises and there can be a commercial establishment without having any fixed place, abode or premises in this State and assuming that the construction canvassed for by Mr. Shah is correct, we would find out whether the respondent has commercial establishment in this State. National Tobacco Company of India Limited has its factory and office at Calcutta. One Mr. R. R. Chopra, a witness examined on behalf of the respondent, who has described himself as Incharge of Gujarat Region is stationed at Ahmedabad. The evidence shows that there were 15 salesmen or propagandists one of whom was deceased Tai and they operate in different centres in this State. The evidence further shows that these propagandists or salesmen collect orders which are transmitted to the company at Calcutta. It becomes clear from the evidence that one Bhanji Nathwani is a stockist at Righor who keeps stocks of the cigarettes manufactured by the respondent and executes the orders obtained by the propagandists or salesmen and charges commission for the same. So far the evidence is not controverted and is undisputed. Ibrahim Abdulla Tai, father of deceased Tai, on behalf of the applicants has stated that the office of the respondent-company was in the shop of Bhanji Nathwani who is a stockiest of cigarettes manufactured by the company and that deceased Tai used to render accounts at Nathwani's place. This part of his evidence has remained uncontroverted and unchallenged in the cross-examination. R. R. Chopra incharge of Gujarat Region examined on behalf of the respondent-company has stated that the company has no office, godown, shop or commercial establishment in the State of Gujarat. He described the 15 propagandists are working in Gujarat region as his assistants and that Bhanji Nathwani is a stockiest of the company but the company has not kept any office or shop at the place of Bhanji Nathwani. He went to the length of saving that the company has no relation with Bhanji Nathwani except that he was its stockiest and purchaser. Even though Ibrahmin Abdulla Tai in his evidence stated that deceased Tai used to render accounts at Nathwani's place, no specific question on this point has been asked in examination-in-chief of Chopra. In our opinion Chopper's evidence hardly carries any conviction. He came to Ahmedabad 1 1/2 years before his evidence was recorded on 18-7-1966. He must have been posted at Ahmedabad in January, 1965. Before that he was at Ranchi. Deceased Tai died in October, 1962. What was organization of the company at Ahmedabad in 1962 would hardly be known to Chopra. Chopra would be talking about the organization after he took over in 1965. One Barua was the regional head at the time of the accident and he was travelling in the very jeep which met with an accident in which deceased Tai died. That Barua is not examined. Now the evidence of Ibrahim Abdulla Tai, father of deceased, would show that Tai used to render accounts at Nathwani's place. That is not specifically denied by Chopra. In fact, we find corroboration to that statement from the correspondence produced on record. In reply to the demand of compensation made by the heirs of deceased Tai, the respondent by its letter dated 19th March, 1963 informed them that the deceased had to pay Rs. 832.11 to Nathwani Brothers, Rajkot for the cigarettes supplied by him on the orders canvassed by deceased Tai. This statement of account which is supplied by none other than the respondent-company would bear out the statement of Ibrahim Abdulla Tai father of the deceased that deceased Tai used to render accounts at the place of Nathwani. From this letter two important facts emerge that Barua was regional head at the relevant time under whom 15 salesmen were working for and on behalf of the company including deceased Tai. This Barua was supplied a jeep by the company in which at the time of his death deceased Tai was travelling in course of his employment. Secondly, Bhanji Nathwani of Rajkot amongst others was a stockiest and he used to execute orders canvassed by the salesmen. The salesmen had to render accounts to the stockists who executed the orders. The Incharge Officer would ordinarily co-ordinate working of different salesmen operating in different regions. This is undoubtedly a business activity organised in commercial manner and it had a focal point of operation both through the incharge where he was stationed and through the stockists especially Bhanji Nathwani where accounts were being rendered. Therefore, even if the concept of premises is to be read (sic), the respondent-company had premises in this State from where it operated. Mr. Chopra no doubt produced two envelops showing that he received his post at the postal address of different merchants. It is neither here nor there. If Chopra alone or through the salesmen appointed by the company was functioning and he was co-ordinating the activities of the salesmen and there were stockists set up at various places and the salesmen used to render accounts to the stockists, undoubtedly it was an organised business activity of a commercial nature and it had a place or abode where the incharge was located and, therefore, the activity would be an establishment carrying on business in this State and would be covered by the definition of 'commercial establishment' even if the expression was given a restricted meaning.

14. Once it is held that the activity of the respondent in this State would be covered by the definition of 'commercial establishment', and deceased Tai was indisputably an 'employee' which is defined to mean a person wholly or principally employed, whether directly or through any agency and whether for wages or other consideration, in or in connection with any establishment, he would be an employee of the commercial establishment of the respondent in this State and would be, entitled to all the benefits of the Act. Section 38A provides that the provisions of the Workmen's Compensation Act, 1923 and the rules made from time to time thereunder shall mutatis mutandis apply to every employee, other than an employee who is in receipt of monthly wages exceeding four hundred rupees, of an establishment to which this Act applies and in which at least five employees are employed on the date of the accident as if he were a workman within the meaning of that Act. This section would show that if a person employed by the commercial establishment would be an employee within the meaning of that expression and if the organisation is one to which the Act applies and if more than five persons are employed by the establishment, such an employee would be entitled to the benefits of the Workmen's Compensation Act, 1923 and the rules made from time to time thereunder. Undoubtedly, deceased Tai was an employee as understood in the Act and the respondent had a commercial establishment in this State and admittedly there were 15 persons employed by the commercial establishment in this State and, therefore, deceased. Tai was entitled to the benefits of the Workmen's Compensation Act, 1923; and as it was not in dispute that deceased Tai died in an accident that occurred in the course of and arising out of his employment, the appellants would be entitled to compensation.

15. The next question then is as to what compensation the appellants would be entitled to. This presents to us a slight difficulty. The learned Commissioner computed the monthly salary of the deceased at Rs. 76. The appellants have stated in the application that at the time of the death the monthly wages of the deceased were Rs. 62 plus Rs. 20 as dearness allowance. He was also entitled to draw travelling allowance at the rate fixed by the company. The word 'wages' as defined in S. 2(m) of the Workmen's Compensation Act, 1923 includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman toward any pension or provident fund or a sum paid to a workmen to cover any special expenses entailed on him by the nature of his employment. Dearness allowance would certainly be included in computing wages. Therefore, at any rate, if no other allowance is taken into consideration the monthly wages of deceased Tai at the time of the accident would be Rs. 82. The order of appointment of deceased Tai shows that he was entitled to travel in III Class. That alone would be his travelling allowance. He was to be paid at the rate of Rs. 3.50 per day as daily allowance. Daily allowance of Rs. 3.50 would not assume the character of travelling allowance and, therefore, daily allowance whenever he was on tour would be other benefit capable of being estimated in money and would be included in wages. Unfortunately, as the parties focussed their attention on the preliminary objection, this matter which is hanging fire for 8 years has to be sent back in order to do justice to the parties. The respondent also made a grievance that it had filed only a preliminary written statement putting forth preliminary objection to the maintainability of the petition. Even the applicants seem to have been lost in the technical objection and controversy of this preliminary objection and did not lead specific evidence as to the quantum of wages which the deceased was earning and on which would depend the quantum of compensation payable. Therefore, reluctant as we are to further delay this matter, particularly when the only bread earner in the family has died, in order to do justice to the parties we would remand the matter to the learned Commissioner to determine only the quantum of compensation and not to permit any other contention. After remand both the parties are at liberty to lead evidence only on the relevant point.

16. Before parting with this judgment, we would like to draw attention to an obvious fact which appears to have been missed by the parties. The State of Gujarat has fixed minimum wages payable to employees employed by a commercial establishment. The employer is under a duty to pay the minimum wages so fixed. Even if the employer in breach of the notification pays to its employees less than the minimum the compensation payable by the employer will have to be computed on the basis of minimum wage payable by the employer. No Court can ignore the notification and no employer can be permitted to take advantage of his own wrong.

17. We accordingly allow this appeal and set aside the order of our learned brother V. R. Shah, J. as also the order of of the learned Commissioner and remand the matter to the Commissioner for workmen's Compensation to dispose of the same within two months from the date of receipt of the record in the light of the observations made in this judgment. The respondents do pay the costs of First Appeal No. 84 of 1967 and this appeal. This cost is quantified as Rs. 250. The costs before the Commissioner would abide the final outcome of the matter.


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