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P.T. Srinivasan Vs. the Burmah Shell Oil Storage and Distributing Company of India Limited and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1971)1MLJ144
AppellantP.T. Srinivasan
RespondentThe Burmah Shell Oil Storage and Distributing Company of India Limited and anr.
Cases ReferredPhilipose v. Additional Commissioner
Excerpt:
- - the order said that the appellant's explanation was unconvincing and that since it was felt that the appellant was guilty of gross negligence and carelessness and acting in complete disregard of the ist respondent's instructions in execution of his duties as a district engineer, no longer any reliance could be placed on him. but the second respondent, as we have already noticed, clearly found that it was not for the first time the appellant was asked to do travelling work, but, he had been doing it systematically, regularly and substantially every month before termination of his services. we are not satisfied that this contention is made out by any means. a scrutiny of the provisions of the act clearly shows that such a discrimination can hardly be found......41(2) of the act. on the evidence before him he definitely found that though the appellant's main work might be office work, he had been substantially and regularly travelling every month, as part of his duty, as assigned, and actually performed the touring in the divisional areas of his jurisdiction every month. kailasam, j., agreed that the second respondent's conclusion was right and dismissed the appellant's petition under article 226 of the constitution.3. before us mr. alagar for the appellant contends that (1) the appellant's travelling in the course of his duty was only part of his work and such a case should not be brought within the purview of section 4(1)(b); (2) even otherwise, for purposes of the application of this provision, the appellant's main work, which did not.....
Judgment:

K. Veeraswami, C.J.

1. This is an appeal from an order of Kailasam, J., declining to quash, at the instance of the appellant, an order of the Additional Commissioner for Workmen's Compensation which was made under Section 41(2) of the Madras Shops and Establishments Act, 1947.

2. The appellant was in the service of the first respondent first as a Draughtsman and later as a District Engineer. In about the middle of January, 1964, he was transferred to Madurai Division, but he took leave and returned to duty on 5th November, 1964. There was a direction subsequently asking him to join the Madras Branch. On and from tr.afc date and up to 5th February, 1965 he was assigned inspection of pump sets outside his headquarters. He again went on leave and returned to duty on 5 th February, 1965. On 5th February, 1965, his services were terminated. The order said that the appellant's explanation was unconvincing and that since it was felt that the appellant was guilty of gross negligence and carelessness and acting in complete disregard of the ist respondent's instructions in execution of his duties as a District Engineer, no longer any reliance could be placed on him. He was required to hand over charge to the Divisional Manager. Against this order he preferred an appeal to the second respondent, the Additional Commissioner for Workmen's Compensation. He dismissed the appeal on the ground that in view of Section 4(1)(b) it was not maintainable under Section 41(2) of the Act. On the evidence before him he definitely found that though the appellant's main work might be office work, he had been substantially and regularly travelling every month, as part of his duty, as assigned, and actually performed the touring in the divisional areas of his jurisdiction every month. Kailasam, J., agreed that the second respondent's conclusion was right and dismissed the appellant's petition under Article 226 of the Constitution.

3. Before us Mr. Alagar for the appellant contends that (1) the appellant's travelling in the course of his duty was only part of his work and such a case should not be brought within the purview of Section 4(1)(b); (2) even otherwise, for purposes of the application of this provision, the appellant's main work, which did not consist of travelling, should be the test and (3) in any case, Section 4(1)(b) violates Article 14 of the Constitution.

4. We are of the view that there is no (substance in any of these points. Section I4 excludes certain cases from the purview jof the Act, and, amongst such cases is 'that of persons, as provided by Section 4(1)(b), whose work involved travelling The test for applying this provisions is whether the person's work involves travelling. It does not say that his entle iwork must involve travelling. Of jcourse such travelling cannot be casual or has been purposely imposed ion the person by the employer with a view to take advantage of the exclusion. Some remark had been made by Counsel for the appellant that immediately before the termination of his services he was assigned travelling work, thereby suggesting some kind of a want of bona fides. But the second respondent, as we have already noticed, clearly found that it was not for the first time the appellant was asked to do travelling work, but, he had been doing it systematically, regularly and substantially every month before termination of his services. There is, therefore, noj merit in the first point.

5. Nor is there any in the second point either. In fact this point does not very much differ, in substance, from the first. But the argument is that the appellant's designation being District Engineer and his travelling being not the main work entrusted to him, he could not be described as a person whose work involved travelling. Counsel, in support of his contention, relies on May and Baker (India) Ltd. v. Their Workmen (1961) 2 I.L.J. 94. But we do not think that it is of any assistance to the appellant. The question there was-whether a particular person was a workman within the definition of Section 2(s) of the Industrial Disputes Act, 1947. The Supreme Court, in deciding that question, observed that it found from the nature of the duties assigned to the person that his main work was that of canvassing and any clerical or annual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for his main work. On that finding the Tribunal's conclusion that he was a workman was found to be incorrect. The point here is whether, by reference to the nature of the work, the appellant was assigned, it could be said that he was a person whose work involved travelling. There is no doubt that although he was an Engineer his work did involve travelling, and, as a matter of fact, it has been so found by the Tribunal. It is not open to the appellant to invite us to go behind that finding, which is a factual one. Further, the travelling work of the appelant was part of his duties and was done regularly every month, and, it was also substantial. The second point too fails.

6. The ground based on Article 14 is that Section 4(1)(b) makes a hostile discrimination inasmuch as it has singled out a person, whose work involves travelling, for exclusion from the protection afforded by the Madras Shops and Establishments Act. We are not satisfied that this contention is made out by any means. A scrutiny of the provisions of The Act clearly shows that such a discrimination can hardly be found. 'Establishment' is defined to mean a shop, And a 'shop' means any premises where any trade or business is carried on. This has to be kept in view in appreciating the reason for the exclusion from the urview of the Act a person whose work nvolves travel. The following provisions the Act point to the type of regulations intended for employees working in shops and establishments. A person whose work involves travelling naturally would not come within such regulations. That is why the exemption has been provided for. Philipose v. Additional Commissioner for Workmen's Compensation (1959) 2 M.L.J. 135 : (1959) 2 I.L.J. 78, specifically on this question held that Section 4(1)(b) was not discriminatory. Balakrishna Ayyar, J., in taking that view, pointed out 1 hat an employee whose duty lay in travelling could not be required to attend (he premises at particular hours, or work between particular hours, and, in fixing the salary of such officers the exigencies of travelling and the expenditure involved in doing it should also be taken into account. Further, a considerable part of their time is spent outside the headquarters and away from home. Hence, the learned Judge pointed out, it could not be contended that the exclusion of persons, whose work involves travelling, from the benefits under the Act was discriminatory or unreasonable and not justified by any reference to the objects and purposes of the enactment. We share this view.

7. The appeal is dismissed, but, in the circumstances, with no costs.


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