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Smt. Gita Mitra Vs. Hemanta Kumar Mitra - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 44 of 1979
Judge
Reported inAIR1982Cal336,86CWN174
ActsCode of Civil Procedure (CPC) , 1908 - Section 60(1)
AppellantSmt. Gita Mitra
RespondentHemanta Kumar Mitra
Appellant AdvocateBhaskar Bhattacharya, Adv.
Respondent AdvocateHarshit Chakrabarti and ;Bimal Chakrabarti, Advs.
DispositionRevision allowed
Cases ReferredK.U. Kulkarni v. Ganpat Hiraji
Excerpt:
- .....ground that he was a labourer and in view of the provisions contained in section 60(1)(h) of the code his wages could not be attached. the learned additional district judge-relying upon the decision in the case of k.u. kulkarni v. ganpat hiraji, air 1942 bom 191 held that the husband who was a laskar in the employment of the port trust, calcutta was a labourer within the meaning of section 60(1)(h) of the code since he had to do manual work in the performance of his duties and as such the remuneration earned by him was 'wages of a labourer'. in that view of the matter the learned additional district judge held that the husband was a labourer and the wages earned by him were exempt from attachment. the application under section 47 was accordingly allowed with the result that the.....
Judgment:

B.C. Chakrabaeti, J.

1. The petitioner wife obtained an ex parte decree of divorce against the opposite party husband in Matrimonial Suit No. 21 of 1977 of the 8th Court of the learned Additional District Judge, Alipore. Subsequently she filed an application for alimony under Section 25(i) of the Hindu Marriage Act. This application however, was contested by the opposite party husband. There was an order in favour of the wife after contested hearing, directing the opposite party husband to pay monthly alimony at the rate of Rs. 200/- from the date of the application. It appears upon a perusal of the order passed in that behalf on January 7, 1978 that an employe from the office of the employer of the Opposite party husband gave evidence to the effect that the net income per month of the husband was about Rs. 1,000. The husband claimed that he had to maintain his old parents and minor brothers and sisters. The opposite party husband submitted through his advocate that a monthly alimony at the rate of Rs. 150 would be sufficient. Having however, considered the totality of the evidence the learned Additional District Judge allowed the application for alimony directing the husband to pay at the rate of Rs. 200 per month as already indicated. The husband,however, admittedly did not pay any amount towards alimony whereupon the wife filed an application for execution, by attachment from the monthly salary of the judgment-debtor husband, the total dues at the date of the filing of the execution petition being Rs. 980.

2. The husband filed an application under Section 47 r/w Section 60 of the C. P. Code, claiming exemption from attachment on the ground that he was a labourer and in view of the provisions contained in Section 60(1)(h) of the Code his wages could not be attached. The learned Additional District Judge-relying upon the decision in the case of K.U. Kulkarni v. Ganpat Hiraji, AIR 1942 Bom 191 held that the husband who was a laskar in the employment of the Port Trust, Calcutta was a labourer within the meaning of Section 60(1)(h) of the Code since he had to do manual work in the performance of his duties and as such the remuneration earned by him was 'wages of a labourer'. In that view of the matter the learned Additional District Judge held that the husband was a labourer and the wages earned by him were exempt from attachment. The application under Section 47 was accordingly allowed with the result that the execution case was struck off.

3. The decree holder wife thereupon filed the present revisional application contending that the husband was not a labourer as contemplated by Section 60(1)(h) of the Code and as such could not claim exemption from attachment. It was further contended that the provision of Section 60(1)(h) of the Code is ultra vires the Constitution being violative of Article 14 of the Constitution of India.

4. On the application being presented a Rule was issued and a notice of the Rule was also served on the Advocate General, State of West Bengal as well as on the Union of India.

5. At the hearing there was no appearance either on behalf of the Advocate General or the Union of India. The application was contested by the opposite party husband.

6. It is not disputed before us that while the alimony matter was being heard the wife produced a sheet described as 'wage slip for the month of Oct. 1975' showing the amount drawn by the opposite party husband. It appears therefrom that the opposite party was drawing Rupees 890.05 which included 'Pay, Officiating Pay, Leave Allowance, Dearness Allowance, House Rent, Conveyance Allow-ance, Compensatory Overtime Allowance etc. After deductions the husband drew a net amount of Rs. 751.59 for that month. It further appears from the order passed on the application for alimony that one G.N. Guha an employee of the Port Trust, Calcutta was examined as witness on behalf of the wife who stated that the gross monthly income of the husband was at least Rs. 1000. Before we come to consider the question whether the opposite party is a labourer and his earnings are 'wages of a labourer' within the meaning of Section 60(1) Clause (h) it may be mentioned that the husband did not move against the order granting alimony at the rate of Rs. 200 per month. It is also to be remembered that the wage slip for the month of Oct. which was produced at the hearing of the alimony matter was admitted into evidence on admission by the husband. Now of course it has been submitted before us that the monthly remuneration earned by the husband is but a little over Rs. 500. In view of the fact that the husband submitted to the order for alimony and acquiesced to the admission of the wage slip in evidence it is no longer open to him to contend that the remuneration earned by him is not as indicated in the said wage slip.

7. Mr. Bhaskar Bhattacharjee appearing on behalf of the petitioner wife contended that the opposite party husband who draws remuneration of about Rupees 1000 a month cannot by any stretch of imagination be termed as a labourer within the meaning of Section 60(1)(h) of the Code. He argued further that a clerk in an establishment drawing much less the amount is not entitled to claim the benefit of exemption under that section while a labourer even if the husband is treated as such but drawing many times more the pay of a clerk would be entitled to claim total exemption from attachment of pay. This Mr. Bhattacharjee contends is violative of Article 14 of the Constitution.

8. Before coming to the question of vires it is necessary to examine whether the husband is really a labourer and if so whether he is entitled to claim exemption under Section 60(1)(h) of the Code Section 60 speaks of properties liable to attachment and sale in execution of a decree. Clause (h) of the first proviso to Sub-section (1) of the section lays down that 'the wages of labourers and domestic servants, whether payable in money or in kind' shall not be liable to such attachment. Clause (1) provides for exemption of salary to the extent of the1st 400 Rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance. Clause (ia) provides exemption in respect of one-third of the salary in execution of any decree for maintenance. Now the expressions labourer and wages have not been defined in the Code. The expression salary has been defined to mean the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of Clause (IV). Expln. IV to the section says 'for the purpose of this proviso wage includes bonus and labourer includes skilled, unskilled or semi-skilled labourer'. So what we get from Section 60 in the Code is that though the expression salary has been defined to mean the total monthly emoluments the expression wages has not been so defined. The use of the expression 'includes' merely has the effect of enlarging the meaning of the word wages, and since wages has not been defined it should be given the etymological meaning of the word, namely, the remuneration for the services. Assuming that the husband, being a laskar is a labourer the question yet remains whether the remuneration earned by him amounts to wages of a labourer as contemplated by Section 60(1)(h) of the Code. In interpreting the particular Clause courts should not lose sight of the circumstances and conditions prevailing at the time when the provision was enacted. 'In the construction of a statute it is of course at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed and to the evil which, as appears from its provision, it was designed to remedy.........' (See Craies onStatute Law 6th Edn. page 126). It is significant to note that when this exemption clause was provided in the Code the legislature in its wisdom considered it necessary to give some protection to labourers and domestic servants by exempting attachment of wages earned by them. It is also significant to note that labourers and domestic servants were grouped together in the same category. The concept of the wages of a labourer at the time when the provision was initially enacted in the Code has considerably changed since then. It is not uncommon for a labourer now-a-days to earn much more than any other employee who is not a labourer. This is a situation which was unthought of at the time the provision was made. That this is so would be evident from Clause (i) of Section 60(1) of the Code with after the amendment in 1976 pro-vides exemption of the first 400 Rupees of the salary. Initially the exemption from attachment of salary was to the extent of first 100 Rupees. It is thus clear that the legislature while providing for exemption of the wages of a labourer was conscious that the salary earned by any other class of servants was more than the wages of a labourer.

9. This apart we have already indicated that the expression wages has not been defined in the Code. Therefore, in Order to ascertain whether the expression is referable to any amount paid to a labourer or not the meaning given to the expression 'wages' in similar statutes may be conveniently looked into. It is permissible in considering what construction should be put to the use of an expression in one statute, to refer to statutes in pari materia relating to the same persons or things or same class of persons or things. In relation to labourers and their wages there are several other statutes which may be considered as in pari materia so that references to those statutes may be helpful in giving a meaningful construction to the term 'wages' of labourer as used in Section 60 of the Code. In the Industrial Disputes Act wages have been denned to mean all remuneration capable of being expressed in terms of money which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment and includes such allowance as the workman is for the time being entitled to, the value of any house accommodation or of supply of light, water, medical attendance other amenity or of any service or of any concessional supply of food grains or other articles, any travelling concession but does not include any bonus. In the said Act the expression workman has been denned to mean any person employed in any industry to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward etc. But does not include any such person who being employed in a supervisory capacity draws wages exceeding 500 Rupees per month. It may be noted that in describing the remuneration earned by an employee doing supervisory work, the expression wages has been used.

10. In the Payment of Wages Act, 1936 the definition of the expression 'wages' is almost similar to the definition as in the I. D. Act. The P W. Act applies in the first instance to the pay-ment of wages to persons employed in any factory and to persons employed otherwise than in a factory but in any industrial establishment or in any classes or groups of Industrial establishments. Section 1, Sub-section (6) however, provides that nothing in the Act shall apply to wages payable in respect of a wage period which, over such wage period, average 400 Rupees a month or more- In the Workmens' Compensation Act, 1923 'wages' has been defined to include 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 towards any pension or Provident Fund or a sum paid to a workman to cover any special expenses entitled on him by the nature of the employment. While defining a workman the statute provided that it does not include a person employed on Monthly wages exceeding 500 Rupees.

11. It follows, therefore, that in analogous statutes dealing with workman which is synonymous with a labourer, and their wages the statute has invariably fixed a limit. That being the position we feel that in construing the extent of exemption of the wages of a labourer under Section 60 of the Code a reference to the amount of wages becomes almost imperative as we have already indicated that it could never have been the intention of the legislature that the wages irrespective of its amount shall be exempt when, the legislature did not consider it necessary to exempt salary beyond the first 400 Rupees of any other class of employees. Workman as defined in the several other statutes providing for adequate provision for their welfare and protection did not include persons drawing more than Rs. 500 a month at the most. Therefore, it seems to us that Clauses (h) and (i) read together in the light of similar statutes dealing with the welfare of labourers and workmen postulate only such labourers whose wages do not exceed Rs. 400 to 500 per month.

12. Then again even though the document exhibited on the admission of the husband indicating the emoluments drawn by the husband for the month of Oct., 1975 is described as wage slip the break up of the amount shows payment of pay, officiating pay, house rent allowance, leave allowance, conveyance allowance besides Dearness Allowances. These items are incompatible with wages of a labourer and no particular importanceshould be given to the use of the expression wage slip so that the total amount inclusive of pay and other allowances should be exempt from attachment. This being the position we are unable to agree with the learned Additional District Judge that execution by way of attachment is totally prohibited under Section 60(1), Clause (h) of the Code. We must construe the word 'labourer' having regard to the subject matter and the intention of the Act. Taking the collocation of the word 'labourer' with 'domestic servant' it is obvious that the reasonable application of the clause is to persons of small means--receiving small wages at short intervals, It seems obvious that the object was to except from the liability to attachment of debts, the case of persons who would be likely to be deprived of their daily means of subsistence by having their earnings attached in the hands of their employers. A person in the position of' the judgment-debtor husband does not come within the spirit of the Clause (h) of Section 60(1). The decision in the Bombay case relied on by the learned Additional District Judge arose out of a different context and it may not be looked upon as a safe guide in holding that any amount drawn by a labourer is entitled to exemption. This is more so because this decision was made at a time when Clause (h) of Section 60(1) read as follows :

'The wages of labourers and domestic servants, whether payable in money or in kind; and salary to the extent of first 100 Rupees and one half of the remainder of such salary.' The clause has since been amended and split up into Clauses (h) and (i). Since the legislature used the two different expressions, wages and salary though analogous in nature in different parts of the same clause, as it then stood, it was assumed that they were intended to be used in a different sense. Now that the expressions are not used in the same clause but in different clauses and the expressions bear an analogous meaning we do not think it fair and equitable to construe the clause as providing for exemption of the wages of the labourers irrespective of its amount whatsoever. This apart, the expression 'salary' as denned in the Code means total monthly emoluments excluding any allowance declared exempt under Clause (L). Taking the wider connotation of the term salary, it seems that the amount paid on monthly basis and described as pay and officiating pay etc. even though earned by a person doing manual work, would be salary and not wages which has a restricted connotation- We are unable to hold therefore, that the entire amount of wages of a labourer should he exempt from attachment in execution of a decree for maintenance. The exemption cannot exceed the amount provided in the other clause of the section namely Clause (i), which relates to persons supposed to be better placed than labourers or domestic servants.

13. Such being our view it is not necessary for us to go into the question whether Clause (h) of Section 60(1) is violative of Article 14 of the Constitution.

14. In the result the revisional application succeeds. The impugned order is set aside. The execution case do now proceed in accordance with law. The petitioner shall be entitled to costs--hearing fee being assessed at 3 gold mohurs.

15. Let the order be communicated to the court below forthwith and the records go down at once. Rule is made absolute.

Anil K. Sen, J.

16. I agree.


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