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Bhikari Behara Vs. Sm. Dhanapatie Bentia - Court Judgment

LegalCrystal Citation
SubjectCivil;Labour and Industrial
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1030 of 1969
Judge
Reported inAIR1970Cal176,73CWN943
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1) and 115 - Order 21, Rule 48(1); ;Dock Workers (Regulation of Employment) Act, 1948 - Section 5C; ;General Clauses Act - Section 3(31); ;Dock Workers (Regulation of Employment) (Amendment) Act, 1962
AppellantBhikari Behara
RespondentSm. Dhanapatie Bentia
Appellant AdvocateP.K. Sanyal and ;K.K. Guha, Advs.
Respondent AdvocateB.C. Mitter and ;Aruna Mukherji, Advs.
DispositionPetition dismissed
Cases ReferredMansuri Ibrahim Mahamed v. Shetti Kantilal Balabhai
Excerpt:
- .....court, calcutta.2. the judgment-debtor, the petitioner before me, is a winchman working under the calcutta dock labour board. andthe interesting question mr. sanyal, appearing in support of the rule, has raised is: can he be regarded as a labourer within the meaning of section 60, sub-section (1), clause (h), of the code of civil procedure. to the language in the statute first. the proviso to section 60, sub-section (1), lists properties which shall not be liable to attachment in execution of a decree. clause (h) comes thereunder. it bears:'(h) the wages of labourers and domestic servants, whether payable in money or kind.'3. such then is the language of the statute. does the petitioner, a winchman under the dock labour board, come under this a domestic servant he is not. but, is he or.....
Judgment:
ORDER

Bijayesh Mukherji, J.

1. This is a rule obtained under Section 115 of the Code of Civil Procedure, 5 of 1908, by the judgment-debtor whose application under Section 47 ibid fails in the court of first instance and thereafter before the Full Bench of the Small Cause Court, Calcutta.

2. The judgment-debtor, the petitioner before me, is a winchman working under the Calcutta Dock Labour Board. Andthe interesting question Mr. Sanyal, appearing in support of the rule, has raised is: can he be regarded as a labourer within the meaning of Section 60, Sub-section (1), Clause (h), of the Code of Civil Procedure. To the language in the statute first. The proviso to Section 60, Sub-section (1), lists properties which shall not be liable to attachment in execution of a decree. Clause (h) comes thereunder. It bears:

'(h) the wages of labourers and domestic servants, whether payable in money or kind.'

3. Such then is the language of the statute. Does the petitioner, a winchman under the Dock Labour Board, come under this A domestic servant he is not. But, is he or is he not a labourer If he is a labourer, Mr. Sanyal is right; his wages are not liable to be attached. If, however, he is not a labourer, Mr. Mitter who opposes this rule is equally right, his wages are not exempt from attachment.

4. The fact that labourers and domestic servants have been placed in the same category has a significance all its own. And, as pointed out in Muniswami v. Viswanatha, : AIR1957Mad773 , a 'labourer' is a person who earns his daily bread by personal manual labour, or in occupations which require little or no art, skill or previous education, If the yardstick be that, it goes without saying that the Courts below are right. And the petitioner before me cannot be regarded as a labourer within the meaning of Section 60, Sub-section (1), Clause (h) of the proviso thereto. Because evidence is overwhelming that he is not a manual labourer only. He has had to undergo a training. Without training, no one can serve as a winchman. That is the evidence which has been accepted by the two Courts of facts. Mr. Sanyal, on the other hand, invites my attention to the evidence of an Inspector of the Dock Labour Board, Arun Roy by name. He is the petitioner's witness No. 1. But his evidence is such that it has not inspired belief in the Courts below, though, I am free to confess, as rightly pointed out by Mr. Sanyal, the Full Bench of Calcutta Small Cause Court is silent about it. All the same, his evidence is such that it cannot stand. He asks the Court to believe that no sort of a training is a precondition for the appointment of a winchman. In that, he appears to be wrong, whether deliberately or not, I need not say. Because, Rule 21 of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1956, Mr. Sanyal has been good enough to hand over to me, bears:

'21. Facilities for Training. -- The Board shall make provision for trainingof suitable registered workers in the duties of Winchmen and Riggers or in any other duties like signalling etc., that it may deem necessary'.

And, still, an Inspector of the Board will have the Court believe that no manner of training is required for employment as a winchman: So, that way Mr. Sanyal's point cannot succeed.

5. But he has been good enough to refer me to a decision of the Bombay High Court, namely. Mansuri Ibrahim Mahamed v. Shetti Kantilal Balabhai, : AIR1956Bom276 , where Gajendragadkar J., as he then was, held that a weaver in a textile mill is a labourer within the meaning of Section 60, Sub-section (1), Clause (h) of the proviso thereto. Gajendragadkar J. referred to certain earlier cases of the Bombay High Court as well. But, can I equate a weaver with a winchman, as I see before me, on the basis of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1956? A weaver is a weaver and a winchman is a winchman. I shall not deny that some skill is required in the work of a weaver too. Even then, it will not be right on my part to treat a weaver and a winchman of the type I see before me on the same footing. Keeping in the forefront of my consideration the entire expression as it occurs in Clause (h), namely, 'the wages of labourers and domestic servants'. I find it impossible to say either on facts or at law that a winchman can be regarded as a labourer within the meaning of that (clause. I shall not deny either that it is so hard to draw the dividing line, as Mr. Sanyal submits. How much skill will you require to take a labourer out of Clause (h), Mr. Sanyal asks, and very pertinently too. Even then, upon the whole of the evidence and the evidence of a fellow winchman at that, namely, the second witness for the opposite party, it appears to be clear enough that the petitioner cannot be regarded as a labourer within the meaning of Clause (h). So, this point upon which the rule has been opened fails.

6. There is, still, another point, and an interesting point at that which Mr. Sanyal has been good enough to raise. The petitioner before me does draw his wages, as I am told, from Kidderpore. The decree under execution is a decree of the Calcutta Small Cause Court. Kidderpore is outside the limits of such a Court. How can the Small Cause Court levy execution of the decree without transferring it to the Alipore Court within the jurisdiction of which Kidderpore is? A point as this merits two answers. The first answer is that Order 21 Rule 48, Sub-rule (1), seems to be attracted here very, very much. To go by thewords material for the present purpose, as they occur in the provision just mentioned:

'Where the property to be attached is the salary or allowances of a ...............servant of local authority, the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court's jurisdiction, may order that the amount shall, subject to the provisions of Section 60, be withheld from such salary or allowances etc'.

7. Now, if the petitioner before me can be regarded as a servant of a local authority, this provision is a complete answer to Mr. Sanyal's point But can he be so regarded? Mr. Sanyal submits that the Dock Labour Board cannot be regarded as a local authority. But, going through the relevant statutes, I hold, with respect, that it can be so regarded. First to the definition of a 'local authority' in Section 3, Clause (31), of the General Clauses Act, 10 of 1897. Here also, to quote the words which are material for the present purpose, 'local authority shall mean an authority legally entitled to or entrusted by the Government with the control or management of a local fund'. Now, the Dock Labour Board does not thrive on air. It has a good enough fund at its disposal to do the various statutory duties imposed upon it. Reference may be made inter alia to Section 5-C as inserted by the Dock Workers (Regulation of Employment) Amendment Act, 8 of 1962. It deals with the accounts and audits. But accounts and audits of what? Obviously of funds. How do those funds come in here in the hands of the Dock Labour Board? The answer is to be found in Rule 38 read with Rule 52, of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1956. It is hardly necessary to go through all that these rules contain. Suffice it to say that the nucleus of the funds is supplied by registered employers upon whom a suitable levy has been imposed under the command of the statute. I, therefore, see no difficulty whatever in treating such a fund as a local fund which the Calcutta Dock Labour Board is legally entitled to, and even entrusted by the State under the command of the statute, to control and manage. So soon as that is said, the Dock Labour Board at once elevates itself to the height of a local authority within the meaning of Section 3, Clause (31), of the General Clauses Act. This, then, is the first answer I return to Mr. Sanyal's second point.

8. The second answer is: Say, the Courts below have gone wrong. But, then, I am exercising a discretionary jurisdiction under Section 115 of theCode. I am not bound to interfere only because the Courts below have gone wrong. And what is the result of such a wrong, if that? The result is that the execution shall be transferred from the Calcutta Small Cause Court to the Ali-pore Court. That is all. So, for such a jejune thing as that, why shall I go out of my way to interfere under Section 115 and thus put a premium upon the delaying tactics resorted to by the judgment-debtor? I see no reason whatever to do so.

9. Thus, the second point fails too.

10. In the result, the rule fails and do stand discharged with costs to the opposite party, I assess the hearing fee at four gold mohurs.


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