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Arun Mills Ltd. Vs. Dr. Chandraprasad C. Trivedi - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR291
AppellantArun Mills Ltd.
RespondentDr. Chandraprasad C. Trivedi
Cases ReferredIn Burmah Shelloil Storage & Distribution Co. of India Ltd. v. The Burmahshell Management Staff Association and Ors.
Excerpt:
.....no. 44, 45, 46 and 47 as well as under the payment of bonus act. it also requires good deal of knowledge of chemistry. all this knowledge is surely a specialised knowledge which requires good deal of study and experience under these circumstances, the knowledge of a doctor can surely be considered as a highly technical knowledge and, therefore, if a person is employed in an industry to discharge his duties as a medical man, he would be a person doing a technical work for the said industry. if a person is employed to paint walls of a house or paint furniture, it would clearly be employment to do manual labour. 395/71 which is preferred by the mills should fail. but the fact that no such exception is made in case of a part time employee and that instead of making any such exception, the..........learned judge of the labour court has found that the claimant is covered by the definition of the word workman given in section (2)(s) of the act. he has further held that even though the claimant is a part time employee of the mill he is entitled to dearness allowance which should be proportionate to the time for which he is rendering his services every day. the learned judge of the labour court has further recorded in this connection that since the dearness allowance of rs. 40/- which is paid to the claimant is more than what would be his legal claim to the proportionate dearness allowance, nothing further is awardable to him. he has, therefore rejected the claimants claim for dearness allowance. as for the bonus, the learned judge has held that his entitled to the bonus amount of rs......
Judgment:

T.U. Mehta, J.

1. Both these petitions arise out of the judgment and order recorded by the presiding officer, 3rd Labour Court, Ahmedabad in recovery application No. 289/67 which was filed under Section 33C(2) of the industrial disputes Act, 1947 (which is hereinafter referred to as the Act). The learned judge of the labour court has allowed the claim of Dr. Chandraprasad C. Trivedi, who is respondent in Spl. C.A. No. 395/71 and petitioner in Spl. C. A. No. 511/71 so far as the bonus amount is concerned, but has disallowed his claim for dearness allowance, with the result that both the parties before the learned judge of the labour court, have preferred these cross applications.

2. Short facts of the case are that Dr. Chandraprasad c. Trivedi who is hereinafter referred to as the claimant, was in the part time employment of the arun mills ltd., which is hereinafter referred to as the mills and was drawing the basic pay of Rs. 175/- per month and a fixed amount of Rs. 40/- as dearness allowance. Facts of the case show that the services of the applicant were engaged as a physician in-charge of the dispensary of the mill for the first time on 6th December, 1951. The claimant was expected to work at least for an hour in a day. He started with the basic pay of Rs. 26/- per month but from the year 1955 the said basic pay was increased to the amount of Rs. 175/- per month. It is an admitted fact that from the month of August, 1955 he I also given dearness allowance at the rate of Rs. 40/- per month.

3. The claimant now claims dearness allowance not at the rate of Rs. 40/- per month but at usual rate which would be applicable to full time employees of the mill. He has thus claimed the dearness allowance which would be admissible to him from the year 1955. This claim is valued at Rs. 10200/-. His further claim is for bonus from the year 1958.

4.Evidence recorded in the case shows that the claimant is also running a private dispensary of his own from the year 1938 where he attends daily from 10.00 am. To 12.30 p.m. And thereafter from 6.00 p.m. To 8.30 p. M. He had also a consulting room of his own for the period from 1955 to 1965.

5. It is further found that from the month of November, 1954. The claimant is working as a part time doctor in sarangpur cotton mill No. 1 as well as in Sarangpur Cotton Mill No. 2, he attends the said mill No. 1 on monday, Wednesday and friday and mill No. 2 on rest of the days excepting Sunday. From mill No. 1 hegets the salary of Rs. 250/- plus dearness allowance while from mill No. 2 he gets Rs. 150/-without dearness allowance. It is an admitted position that he gets bonus from both these mills.

6. The claim of dearness allowance and bonus advanced by the claimant is resisted by the mills before the learned judge of the labour court, it was contended on behalf of the mills that the claimant being a doctor, is not covered by the definition of workman given in Section 2(2) of the Act. According to the mills, therefore, the claimant is neither entitled to any dearness allowance nor to any bonus. So far as the claim of dearness allowance is concerned, the mills, has further contended that the claimant being apart time employee, he is not entitled to claim any dearness allowance.

7. The learned judge of the labour court has found that the claimant is covered by the definition of the word workman given in Section (2)(s) of the Act. He has further held that even though the claimant is a part time employee of the mill he is entitled to dearness allowance which should be proportionate to the time for which he is rendering his services every day. The learned judge of the labour court has further recorded in this connection that since the dearness allowance of Rs. 40/- which is paid to the claimant is more than what would be his legal claim to the proportionate dearness allowance, nothing further is awardable to him. He has, therefore rejected the claimants claim for dearness allowance. As for the bonus, the learned judge has held that his entitled to the bonus amount of Rs. 1,802.08 right from the year 1958 upto the year 1965, under the agreements exhs. 44, 45, 46 and 47 as well as under the payment of bonus Act.

8. The mill has preferred Special Civil Application No. 395/71 against the award of bonus while the claimant has preferred Special Civil Application No. 511/71 against the order of rejection of his claim for dearness allowance.

9.The firs.The first question which arises to be considered is whether the claimant being a doctor serving the mill which is admittedly an industry as defined in Clause (j) of Section 2 of the Act, falls within the definition of the word workman as given in Clause (s) of Section 2 of the Act. This definition covers all persons including an apprentice employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. The definition further says that four categories of different cadres mentioned therein would not be included in the definition of the word workman. These for categories are:

(i) a person who is subject to the army Act, 1950, navy (discipline) Act, 1934;

(ii) a person, who is employed in the police service or as an officer or other employee of a prison;

(iii) a person, who is employed mainly in a managerial or administrative capacity;

(iv) a person, who is employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the power vested in him, functions mainly of a managerial nature.

Obviously the claimant does not fall within any of these four categories mentioned above. It is, therefore, necessary to see whether his case falls within the main part of the definition which says that workman means any person who is employed in any industry to do any skilled, or unskilled manual, supervisory, technical or clerical work. The contention of the claimant is that he being a qualified doctor, he must be considered as a person doing technical work. The contention of the mills is that the word technical which is used in the definition of the word workman given in Section 2(s) of the Act, should be construed in context of the fact that the claimant is engaged in textile industry. According to Shri Nanavati, who appeared on behalf of the mills, the word technical person would, therefore, imply a person who is engaged for discharging the duties which would be useful in running a textile industry.

10. We find ourselves unable to accept the narrow construction of the word technical which is canvassed by Shri Nanavati. It is difficult to narrow down the connotation of the different categories of persons mentioned in the main part of the definition of the word workman only to industry to which they arc attached. As a matter of fact, the word industry is itself of a wider import because the definition of that word which is given in Clause (j) of Section 2 of the Act shows that it means business, trade, undertaking, manufacturer or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or a vocation of workmen. It is thus very obvious that the word industry itself is of wider import. But so far as the definition of the word workman is concerned, the main part, of it casts a very wider net and includes therein all those persons who are engaged to do skilled or unskilled manual, or supervisory work or a technical or clerical work. The real question which, therefore, arises to be considered is what is the import of the word technical. The word technical, is derived from the word technique the latin-root of which is techne meaning Article Therefore, the word technique means method of manipulation in any Article It is for this reason that shorter oxford English dictionary defines the word technical as under:

1. of a person skilled in or practically conversant with some particular art or subject. 2. Belonging or relating to an art or arts appropriate or peculiar to or characteristic of, a particular art, science, profession, or occupation also of or pertaining to the mechanical arts and applied sciences generally.

Looking to this broad dictionary meaning of the word technical it becomes apparent that art, which requires a specialised knowledge of a particular branch, is called a technical art and one who professes such a technical art is called a person employed in a technical work 21st volume of encyclopedia britannica makes the following reference with regard to the expression technical education:

Technical education is concerned with teaching applied sciences, special training in applied science, technical procedures, and skills required for the practice of trades or professions, especially those involving the use of machinery or science equipment. Technical education emphasizes the understanding and practical application of basic principles of mathematics and science rather than the attainment of proficiency in manual skillsa narrower definition of technical education normally implies those curricula that are engineering related, but the term is also sometimes more broadly and loosely used to embrace non-engineering related curricula from one to three years in length in agriculture, applied and graphic arts, business, education and health services.

Now, if we look to the facts of this case, it cannot be gain said that medical knowledge requires a specialised knowledge with regard to human anatomy and physiology. It also requires good deal of knowledge of chemistry. A medical practitioner is expected to diagnosea disease and is also expected to know what chemical reactions will be offered by the body chemistry of a particular patient on the administration of a particular drug. All this knowledge is surely a specialised knowledge which requires good deal of study and experience under these circumstances, the knowledge of a doctor can surely be considered as a highly technical knowledge and, therefore, if a person is employed in an industry to discharge his duties as a medical man, he would be a person doing a technical work for the said industry. In our opinion, therefore, he woulds quarely fall within the definition of the word workman given in Section 2(s) of the Act.

11. We find that this particular view is taken by a Division Bench of Assam; High Court in Bengal United Tea Co. Ltd. v. Ram Labhaya, Presiding Officer, Industrial Tribunal, Assam A.I.R. 1961 Assam 30, wherein it is observed that the functions discharged by a medical officer includes diagnosis and prognosis, which is a work of highly technical nature which a layman cannot perform. In Burmah Shelloil Storage & Distribution Co. of India Ltd. v. The Burmahshell Management Staff Association and Ors. 1970 (ii) Labour Law Journal, 590, the supreme court has examined the cases of several categories of services rendered in an industry. In para 16 of the reported judgment, the Supreme Court has made the following observations with regard to the work of a painter. The se observations are very much pertinent in knowing what, type of work can be considered as technical work. The supreme court says:

A more clear illustration which may be useful is that of a painter. If a person is employed to paint walls of a house or paint furniture, it would clearly be employment to do manual labour. If, on the other handy he is an artist who paints works of art as a result of his own creative and imaginative faculty, he would be held to be employed on technical work, even though, in creating the work, he will all the time be using his own hands to paint the picture.

Further discussing the case of chemists in para 24 of the reported judgment, the Supreme Court has observed that in all the chemists do their own work which is of technical nature and, therefore, they were rightly held to be workmen covered by the definition of the term given in the Act.

12. The ratio of these decisions applies fully to the present case. We, therefore, hold that the learned judge of the labour court was quite justified in holding that the claimant does the work of a technical nature and is, therefore, a workman as defined by Section 2(s) of the Act.

13. It is not disputed that if the claimant is held to be a workman he would be entitled to bonus as awarded by the learned judge of the labour court under the circumstances special a. No.395/71 which is preferred by the mills should fail.

14. So far as Spl. C.A. No. 511/71 which is preferred by the claimant is concerned, the first question which arises to be considered is whether the claimant being a part time employee of the mills can claim any dearness allowance. Now so far as the question of dearness allowance is concerned, the same is governed by different awards which arose out of different agreements arrived at between the textile labour association, Ahmedabad on one hand and Ahmedabad mill owners association, Ahmedabad, on the other. In revision application No. Misc. 1 of 1947, the industrial court presided over by Shri H.V. Divatia, has given an award which prevails even to-day subject to slight modifications which have been subsequently made. A copy of this award is produced before us. Para 12(1) of that award is relevant to the facts of the present case, this is as under:

The rise in the cost of living over pre-war level of 73 in the case of an employes earning. Rs. 28 (Rs. 25-0-6 according to the assessors report) for a month of 26 working days should be neutralized to the extent of 100 per cent, and all employees earning Rs. 150/- or less a month should be paid at that flat rate. Taking the average index number of 219 for the year 1947 this employee should get a dearness allowance of Rs. 56/- for month of 26 working days. On arithmetical calculation it is found that the rate comes to 2.84 paise per days for rise of each point in the cost of living index number over the pre-war figure. The dearness allowance at this rate should be paid to all employees earning upto Rs. 150/- a month with effect from 1st July, 1947, that is the date on which the standardisation award has come into operation.

It is an admitted fact that the salary limit of Rs. 150/- per month has been increased and it is not in dispute that if the claimant is found to be a workman, as defined by the Act, his case would be covered by the above quoted directions given by the industrial court. These directions show that all employees would be entitled to the dearnese allowance at the rate of Rs. 2.84 per day, for a month of 26 working days. Obviously, the award does not make any differentiation between a full time employee and a part time employee. If the award intended not to give clearness allowance to the employees who were part time employees, it would have said so specifically. But the fact that no such exception is made in case of a part time employee and that instead of making any such exception, the award uses the comprehensive expression all employees cleanly suggests that the award wanted to cover employees, who are working full time as well as those who are working part time. In these circumstances, the contention of the mills that the award for allowing dearness allowance does not apply to part time employees, cannot be sustained. The learned judge of the labour court has further held that though it is true that a part time employee, who is a workman is entitled to get dearness allowance under the above referred award, the Actual amount of dearness allowance which could be awarded to such part time employees would not be the extent to which the same is given to whole time employees. The learned judge has therefore awarded dearness allowance to the claimant only proportionate to the time for which he is rendering his services to the mill. With regard to this approach of the learned judge, the grievance which is made by Shri Daru, who appeared for the claimant, was that since the dearness allowance was given on flat rate basis to all the eligible employees, irrespective of their salary, the learned judge has erred in making the distinction in the case of part time employees. According to shri daru, such a distinction is not warranted because the award which is referred to above, does not imply that part-time employees should get dearness allowance only proportionate to the work which they are rendering.

15. We do not find it possible to accept this contention of Shri Daru for the obvious reason that if the same is accepted it would put a part time employee in a more advantageous position than that of a whole time employee. A part time employee would be in a position to work during the course of a day at more than one place and hence can afford to obtain part time employment with more than one concern. In fact, the claimant was, at the relevant time, rendering his services as a part-time doctor at three mills. If Shri Darus contention is accepted, the claimant would be entitled to get dearness allowances from all the three mills he was serving. Thus his higher cost of living would be neutralised three times, while the higher cost of living of a whole-time worker who cannot seek employment elsewhere would be neutralised only once. Such a situation offends the very basic concept of providing dearness allowance to workman. Award of dearness allowance is not made with a view to enable a workman to indulge in a profiteering of this type.

It was contended that calculation of dearness allowance which can be awarded to a part time workman should not be proportionate to the working hours of his employment because no such calculations are contemplated by the award of the industrial court referred to above. This contention is also not acceptable because the relevant portion of the said award which is quoted above, shows that the rate of dearness allowance was fixed per day at Rs. 2. 84 for rise of each point in cost of living index number over the pre-war figure. This was on the basis that it was the work for the whole day. The whole days work would be the work of 8 hours. Therefore, in order to earn the rise of Rs. 2.84 per day, the workmen has to work for 8 hours in a day. If he does not work for 8 hours in a day, he would obviously not be entitled to get the full rise as contemplated by the award. Under the circumstances, it is not possible to say that the view, which the learned judge of the labour court has taken on the question or dearness allowance, is erroneous. If this is, so, even Spl. C.A. No. 511/71, which is preferred by the claimant, deserves to be dismissed. If the result, both these special civil applications fail and both of them are dismissed with costs.


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