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Khuda Bux Vs. Manager, Caledonian Press - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 14 of 1953
Judge
Reported inAIR1954Cal484,58CWN560,(1954)IILLJ13Cal
ActsWorkmen's Compensation Act, 1923 - Section 3(2); ;Factories Act, 1934; ;General Clauses Act, 1897 - Sections 6 and 8; ;Code of Civil Procedure (CPC) , 1908; ;Factories (Amendment) Act, 1948 - Section 120; ;Factories (Amendment) Act, 1950 - Section 3
AppellantKhuda Bux
RespondentManager, Caledonian Press
Appellant AdvocateNalini Kanta Mukherjee and ;Jnan Chandra Roy, Advs.
Respondent AdvocateBinayak Nath Banerjee and ;Anil Kumar Sen, Advs. for ;Dwijendra Nath Mukherjee, Adv.
DispositionAppeal allowed
Excerpt:
- .....to his case is the first entry in part b which describes the employment concerned as 'any process involving the use of lead or any of its preparations or compounds.' i am leaving out the portion which is not material. the commissioner has held that the appellant's employment does not come under that description, because the schedule makes a clear distinction between 'process' and 'handling' and because the appellant's employment, although it might consist in the handling of lead, did not constitute a process.besides pointing out the mention of process and handling in the schedule itself as what he considered to be different employments, the commissioner has also relied upon the circumstance that the english act originally contained an entry in exactly the same language as the.....
Judgment:

Chakravartti, C.J.

1. This appeal involves a question of first impression under the Workmen's Compensation Act which is a pure question of law, arising out of facts nowaccepted by both parties. The facts are as follows.

2. The appellant, Khuda Bux, was employed for a long time in a printing press kept by the respondent, first under a contractor and then since October, 1948, directly. After putting in over forty years of service, he found himself a total wreck and unable to work any longer. He first absented himself from duty on the 26th January, 1950 and did not rejoin. The capacity in which he worked in the press was that of an impositor and his duties were that after the matters to be printed had been set in type on a linotype machine, he took the types and arranged them so as to make up a frame and then fixed them up in a frame or chest. It has been found that he is suffering from chronic lead poisoning and it has also been found that he contracted the disease by having had to handle lead in the course of his employment. The disability which the disease has brought on him is permanent and total. During his employment, his wages were Rs. 60/- to Rs. 70/- per month.

3. On 26th August, 1950, the appellant applied for compensation under the Workmen's Compen-isation Act for personal injury by accident. The application did not state under what section of the Act it was made, but it was clear from the nature of the application that the appellant was making a case under Section 3(2) of the Act and that he was pleading an occupational disease specified as peculiar to his employment in Part B, Sen. III.

4. The Commissioner has found that the appellant was a workman within the meaning of Section 2(1) (n) of the Act, read with Clause (ii) of Schedule II. Yet, and in spite of finding that the appellant had suffered the personal injury of lead-poisoning arising out of and in the course of his employment he has dismissed the claim in the view that in Schedule III of the Act, the disease of lead poisoning had been specified as peculiar only to employments which were processes involving the use of lead, but not also employments which consisted in the mere handling of lead. In the Commissioner's view, the schedule made a clear distinction between handling and process and since the appellant's employment could not be called a process, he was not entitled to succeed under Section 3(2). The appellant did not accept that decision and has preferred the present appeal.

5. The principal question involved in the appeal thus is whether on the true construction of the relevant entry in Schedule III, the view taken by the Commissioner was right. But before taking up that question, a point raised by the respondent, which was not taken in the Court below, may be disposed of.

6. It was contended that the appellant wasnot even workman and that the Commissionerhad found him to be one, by wrongly applying thedefinition of 'manufacturing process' as containedin the Factories Act of 1948, whereas it was thedefinition in the Act of 1934 which ought to havebeen applied. Clause (ii) of Schedule II of the Workmen'sCompensation Act, to quote only the material part,defines 'workman' as a person'employed * * in any premises wherein * * onany one day of the preceding twelve months,ten or more persons have been employed in anymanufacturing process, as defined in Clause (g) ofSection 2, Factories Act, 1934.'It was contended that the definition of 'manufacturing process' in the Factories Act of 1934 did not contain Clause (iv) of the present definition which speaks of 'printing by letterpress, lithography, photogravure or other similar work,' and there-fore the appellant, who worked in a printing press, could not be said to have been employed at a place where a 'manufacturing process' within the meaning of the Factories Act of 1934 was carried on. He was, therefore, not entitled to be regarded as a workman.

7. In my opinion, this contention is plainly unsound. The Factories Act of 1934 was repeated and re-enacted by the Act of 1948 and therefore by virtue of Section 8, General Clauses Act, references in the Workmen's Compensation Act to the Act of 1934 must be construed as references to the Act of 1948. There is nothing from which a different intention appears. Had the Workmen's Compensation Act been amended after 1943, and had the reference to the Act of 1934 yet remained, there would be reason for saying that it was the Act of 1934 which was intended to be regarded, but there has been no amendment of the Workmen's Compensation Act after the Factories Act of 1948, nor is there any other indication that the new Act is not be read for the old, as required by Section 8, General Clauses Act.

8. As against these considerations, it wss urged that the Factories Act of 1948 was not a repealing and amending Act, but was an Act to consolidate and amend the law relating to labour in factories, as the preamble showed, and, consequently, Section 8, General Clauses Act would not apply. That argument was founded on a misconception. Section 8, General Clauses Act docs not require that the later Act repealing and re-enacting an earlier Act, should be a repealing and amending Act. All that it requires is that a Central Act should repeal and re-enact a former enactment.

To that it was replied that even the repeal of the Factories Act of 1934 had now disappeared, because the repeal was effected by Section 120 of the Act of 1948, read with a table of enactments therein set out, but by the Repealing and Amending Act of 1950, the table of repealed enactments had itself been repealed. With the table gone, the operative words of Section 120 of the Act of 1948 had been left without any content and the Act had been reduced to a purely consolidating and amending Act, repealing nothing. The Act of 1934 could no longer be said to have been repealed or, in any event, the Act of 1948 could no longer be said to have repealed and re-enacted it.

9. This contention was based, in my view, on a mistaken notice of the scope and effect of a repealing and amending Act. Such Acts have no legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, beccuse having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The only object of such Acts which in England, are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care, of which Section 3 of the Repealing and Amending Act of 1950 is itself an apt illustration. Besides providing for other savings, that section says that the Act shall not affect 'any principle or rule of law * * notwithstanding that the same may have been * * * derived by, in, or from any enactment hereby repealed.'The principle of law derived from the repeal by Section 120, Factories Act of 1948 of the Act of 1934,namely, that references in other Acts to the Act of 1934 should be read as references to the Act of 1948, is thus not affected by the Repealing and Amending Act of 1950 which repealed the operative part of Section 120 of the Act of 1948. From another principle also, the same result follows. The repeal of the repealing section of the 1948 Act could not have the effect of reviving the Act of 1934, repealed thereby and, consequently, since the repeal of the Act of 1934 continued to subsist, Section 8, General Clauses Act continued to apply. The Commissioner was therefore right in applying the definition of 'manufacturing process' contained in the Factories Act of 1943 and also right in holding on the basis of that definition that the appellant was a workman.

10. Proceeding now to the principle question in the appeal, its decision rests upon the true construction of Section 3(2), Workmen's Compensation Act, read with the first entry in the righthand column of Part E of Schedule III.

11. It will be useful to see first, and broadly, what the two provisions do. Broadly speaking, Section 3(2) enlarges the concept of an 'injury by accident' and gives the workmen the benefit of a presumption. It provides as follows:

'If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury fay accident within the meaning of this section and, unless the employer proves the contrary, the accident shall be deemed to have arisen out of and in the course of the employment in the same kind of employment.'

The ordinary notion of an injury by accident is that it means physical harm caused to a workman by a sudden mishap which was not expected by him, but Section 3(2) extends the term to certain diseases as well. The relevant diseases are set out in Schedule III where they are specified as peculiar, respectively, to certain types of employment. Section 3(2) in substance also provides that if a workman is employed in the performance of certain kinds of duty and he contracts a disease which is specified in Schedule III as peculiar to such employment, he will not be required to prove by evidence that he has suffered an injury by accident arising out of and in the course of his employment, but an injury by accident shall be presumed and it will also be presumed to have arisen out of and in the course of the workman's employment, although the latter presumption is rebuttable by the employer.

So read, the section would appear to lay down only a rule of evidence and had there been no other provision in the Act, it might have been thought that even if the workman's case did not come under Section 3(2), the only result would be that he would lose the benefit of the presumption, but he would not be debarred from proving by evidence that his disease was an injury by accident and that it had arisen out of and in the course of his employment. Sub-section (4) of Section 3, however, abridges that liberty very considerably, for it says that in esses outside Sub-sections (2) and (3), the workman cannot claim compensation for a disease, unless he proves a specific injury by accident and also proves the disease to have arisen out of it.What the two sub-sections, read together, mean appears to be that if a workman claims compensation on the basis of an occupational disease, ae can succeed and get the benent of the presumption provided for in Section 3(2), only if the disease is one of those mentioned in Schedule III and is connected with his employment in the manner therein indicated.

But if he cannot bring himself under Section 3(2) and the Schedule, he must prove alternatively some wound or injury and also that such wound or injury led to the disease as a consequence. In such cases, a disease caused by slow absorption of some noxious matter or by general pressure on the physical system but not originating in a specific wound or injury, would appear to be excluded. It is important to point out this limitation contained in Sub-section (4), because besides making a case under Section 3(2), the appellant did not make any attempt to prove any specific injury. If his case under Section 3(2) is not established, he must fail.

12. Turning now to Schedule III, it is divided into two parts, A and B. Part A is concerned with cases for which employment for no particular period is required, but Part B requires that the workman .should have been employed for a continuous period of not less than six months in the employment concerned. Both the parts specify employments which involve contact with injurious substance or exposure to certain conditions as incidents of the workman's duties and they specify diseases which are caused by slow and gradual ingestion of offensive matter or by a general pressure on the physical system of the workman.

13. The appellant has proved that he is a workman and also that he had been employed as an impositor for more than six months under the respondent. The disease from which he is suffering is chronic lead poisoning. The only entry in Schedule III which is applicable to his case is the first entry in Part B which describes the employment concerned as 'any process involving the use of lead or any of its preparations or compounds.' I am leaving out the portion which is not material. The Commissioner has held that the appellant's employment does not come under that description, because the schedule makes a clear distinction between 'process' and 'handling' and because the appellant's employment, although it might consist in the handling of lead, did not constitute a process.

Besides pointing out the mention of process and handling in the schedule itself as what he considered to be different employments, the Commissioner has also relied upon the circumstance that the English Act originally contained an entry in exactly the same language as the entry in the Indian Act, but subsequently, another entry, reading 'handling of lead or its preparations or compounds'' has been added in exercise of the power conferred by a provision corresponding to Section 3(3) of the Indian Act. In the Commissioner's view, it was clear that 'process' was not synonymous with 'handling', and he thought that the difference between the two was pointedly illustrated by the necessity felt in England for the subsequent addition of 'handling.'

14. Section 3(2) of the Indian Act speaks of 'a workman employed in any employment' specified in Part A or Part B of Schedule III. The heading in the second column of the Schedule is 'Employment' and different kinds of employments are set out below, each against a particular disease. Among the employments specified in the column, there are several which are described as 'any process'. It is thus clear that in the language of the sche-dule, a process is an employment. There is, however, one entry which reads as 'handling benzene * * and any process * * involving the use of benzene.' From that entry, if it is taken by itself, it may undoubtedly be said that handling is also an employment and it is something different from process.

I shall deal with this argument presently, but I may point out at this stage that the argument drawn by the Commissioner from the English Act is not in any way convincing. The language of the relevant section of the English Act, Section 44(1), is any workman, 'employed in any process' mentioned in the third schedule and the heading in the second column of the schedule is 'Description of Processes'. It is thus clear that although in the body of the English Schedule 'process' and 'handling' have been separately mentioned, yet even as to the disease of lead-poisoning, handling is also a process under the language of the general heading of the second column of the schedule.

15. On behalf of the respondent it was contended that the natural meaning of the word 'process' made it something different from 'handling', and it was said that a process meant 'a mode of treatment of certain materials in order to produce a given result, a species of activity performed on the subject-matter in order to transform or reduce it to a certain state.'

It was accordingly contended that in order that an employment involving contact with lead might be a process, it was necessary that some operation should be performed on the metal in order to bring it to a certain shape or condition. That contention does not appear to me to be acceptable.

According to the Oxford Dictionary one of the meanings of the word 'process' is 'a continuous and regular action or succession of actions, taking place or carried on in a definite manner, and leading to the accomplishment of some result.'

The activity contemplated by that definition is perfectly general, requiring only the continuous-ness or quick succession, but it is not one of the requisites that the activity should involve some operation on some material in order to its conversion to some particular state. There is thus nothing in the natural meaning of the word 'process' to exclude its application to handling.

16. Indeed, the schedule itself makes it clear that process and handling are not mutually exclusive. The last entry in the left-hand column of the third schedule is: 'Any process involving the handling or use of tar', from which it appears that a 'process' may consist in handling or, at least, handling may be a part of a process. To my. mind, the real contrast in the Schedule is not between process and handling, but between handling a material and the process involving the use of the same material. In other words, there may be a process which consists only in handling and there may be a process which involves not handling or not merely handling, but use or also use.

That appears clearly from the entry as to benzene which I have already read, namely, 'handling benzene * * * or any process involving the use of benzene,' and also from the last entry, reading 'any process involving the handling or use of tar.' The entry as to lead with which we are concerned in the present case reads, as already stated, as 'any process involving the use of lead.' The question, therefore, is whether the appellant's employment was such that it consisted only in the handling of lead or whether it also involved the use of lead.

17. On behalf of the respondent it was contended that the appellant's employment might be a process involving the handling of lead, but it was not a process involving the use of lead. 'Use', it was said, meant utilisation. I am unable to agree, because the natural connotation of the word 'use' is a perfectly general one and also because where the Legislature intended to refer to 'utilisation' in the Schedule, it has used that very word. One of the entries in the Schedule is 'any process involving the production, liberation or utilisation of arsenic.' In construing the language of the Schedule, one cannot therefore equate 'use' with 'utilisation'. It follows that if an employment consists not merely in the handling of lead, but in handling involving the use of lead or any of its preparations, such use being any kind of use, it must be held to be an employment within the Schedule.

18. The duties of the appellant have already been mentioned. After the matters to be printed have been set in type on a linotype machine, he took the types, arranged them in a proper order so as to make up a forme and then fixed them up in a frame or a chest. Anyone familiar with a lonotype machine knows that it throws out lead bars, each one of the length of the intended line, on which letters have been imprinted and it is these bars which have to be arranged in a proper order in order to make a page of intelligible reading matter. In my view, in so arranging the bars and fixing them up in a chest, an impositor does not merely handle lead, but carries out an intelligent operation in the performance of which lead or preparations of lead are used.

'Handling', as contemplated by the Indian Schedule and, I conceive, as also contemplated by the English Schedule, is mere handling, involving no use of the material concerned such as a menial servant might be engaged in, if he were employed to carry the bars to the press. The employment of the appellant in the present case was far different and, as I have already explained, although it consisted in part in handling, the handling was such that it involved use. In my view, therefore, the Commissioner wss not right in holding that the appellant had failed to bring himself within Section 3(2), read with Schedule III of the Act.

19. It has been stated by the Commissioner that the wages of the appellant were admitted to have been Rs. 60/- to Rs. 70/- per month. We are informed that on the basis of that rate of wages, the proper amount of compensation would be Rs. 2,940/-.

20. In the result, the appeal succeeds. The judgment and order of the Commissioner are set aside and the appellant's application for compensation is allowed. There will be an order for payment to him by the respondent as compensation of a sum of Rs. 2,940/- with the costs of this appeal, the hearing-fee of which we assess at three gold mohurs.

21. In view of the difficulty of the point, we would not make any order for costs of the trial Court.

Das Gupta, J.

22. I agree.


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