The Last Kiss

(T. G. John, Advocate, Trichur)

On the night of June 3, 1973, a Chevrolet Caprice driven by a woman was forced off the road by a car carrying four men at Cook County, Illinois, USA. One of them pointed a 12 - guage pump shotgun at her, ordered her to strip and then to climb through a barbed wire fence at the side of the road. As she begged for her life, her assailant thrust the shotgun barrel into her vagina and fired. After watching her agonies for several minutes, he finished her off with a blast to the throat. Less than an hour later, the marauding motorists stopped another car and told the man and the woman inside it to get out and lie down on the road. When the couple saw the shotgun, they pleaded for mercy saying that they were engaged to be married in six months. The man with the gun said 'Kiss your last kiss', then shot both of them in the back, killing them. No sexual assault and the total take from these three murders were two wrist watches, an engagement ring and a wedding band!

Twenty eight year old Henry Brisbon who accomplished these cold blooded murders escaped the death penalty because death penalty was invalidated in Illinois in 1972. Brisbon took the sentence like chicken soup. While in prison, he stabbed and killed a fellow inmate with the sharpened handle of a ladle. In 1977, Illinois had restored its death penalty and now the same man is facing death penalty for the last crime - a walking testimonial for the non-abolition of death penalty.

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It has become a fashion to decry the awarding of death sentences and much controversy is raging round, how these sentences are to be carried out. By the standards, of history, the execution of Socrates in 399 B.C. was singularly humane. He was found guilty of heresy and 'corruption of the young' and was condemned to drink a cup of hemlock - a relatively honourable and painless death.

In ancient China, an occasional penalty was death by 'thousand cuts', the slow slicing away of bits of the body. A 19th century French traveller described an excruciating method in our own country during the rule of the Rajahs. "The culprit bound hand and foot, is fastened by a long cord, passed round his waist, to the elephant' s hind leg. The latter is urged into a rapid trot through the streets of the city and every step gives the cord and body of the condemned a violent jerk. He is then released and by a refinement of cruelty, a glass of water is given to him. Then his head is placed upon a stone and the elephant executioner crushes the head beneath his enormous foot!"

The Romans decreed death for arson, perjury and murder, but also for disturbing the city's nocturnal peace, the condemned were often hurled 100 feet to their death from the top of the TARPEIAN ROCK, which overlooked the Forum. A medieval German code decreed "should a coiner (counterfeiter) be caught in the act, then let him be stewed in the pan or a cauldron".

The English meted out the death penalty for more than 200 offences including stealing of turnips, associating with gypsies, cutting down a tree or picking pockets. Hanging days were public holidays and in 1807 a crowd of 40,000 became so frenzied at an execution that nearly a hundred were trampled to death. Frequently, both the victims and executioners were drunk and occasionally the condemned man had to be hanged two or even three times. Afterwards, the crowd surged towards the corpse, because the dead body and the scaffold were believed to have curative powers!

One of history's most spectacular executions was that of Damiens, the unsuccessful assassin of Louis XV in Paris in 1757. His flesh was torn with red hot pincers, his right hand was burned with sulphur, his wounds were drenched with molten lead, his body was drawn and quartered by four horses, his parts were set afire and his ashes scattered to the winds. The execution was accomplished before a large crowd.

Not until the enlightenment 200 years ago did societies seriously question the State's right to kill. Until then the only dilemma had been to find the most ingenious cruel methods of execution. Boiling, burning, beheading, crucifying, stoning, burying alive - all were in vogue at various times. The crucifixion of Jesus Christ was, for its day, only a routine execution. By the late 18th century, a reform movement had taken hold in Europe, aided by the invention of such humane devices as the hanging machine and the guillotine. Since then, similar movements in many countries have succeeded in banning the ultimate penalty.

The idea of total abolition of death penalty still requires reconsideration.

As the State Prosecutor in Henry Brisbon's case remarked 'Henry Brisbon is a terrible human being........ On the day he dies in the electric chair at Stateville, I plan to be there to see that it is done. Nobody I have heard of deserves the death penalty more than Hentry Brisbon'.

Love's Labours Lost!

(T.G. John, Advocate, Trichur)

Sri. Hitendra Desai was a fair, tall young man of apparently languid and sleepy disposition. He was a school teacher in one of the suburban High Schools of Bombay where he was teaching Gujarati, a compulsory vernacular subject. Being the teacher of a vernacular subject he was a low-paid employee of the school and it was with great difficulty that he was making both ends meet.

His family was not a large one but nevertheless it was not a happy one either. His wife Urmilla was a fair complexioned, good looking girl of 24 and she had all the general comely features of a Gujarati girl of good family. She was of medium height with glistening curls of hair and her gait and deportment were equally elegant. Her relations with her husband seemed to be quite cordial when they were by themselves.

The couple had no children. But the fire in Hitendra's restless eyes, the drooping corner of his tightly closed mouth and frequent twitches of his face muscles showed that he was frustrated in life. There were only three members in his family, himself, his wife Urmilla and his mother Anasuiya. He had married Urmilla when his first wife Nalini died in a tragic accident in which her sari caught fire while she was cooking the family lunch over a kerosene stove.

It has been sometimes that Eve was able to get on so well with Adam in the Garden of Eden, because of the absence of a mother-in-law! Urmilla and Hitendra's mother never got on well. The mere sight of the mother-in-law would pucker up Urmilla's brow, the comer of her mouth would turn up in a defiant gesture and she would unconsciously grind her teeth as if in a fit of rage. But she would say nothing until the other side opened up her volley of invectives in a high pitched clatter.

A sample of their conversation was as follows:

Mother-in-law:

"You daughter of an owl, you dare say all these things boldly! Let my son come back from the school. I will throw you out of the house. I will the n make my son marry a nice docile girl, respectful to her superiors."

Daughter-in-law:

"At the time of my marriage only a year ago my father had given so much cash and ornaments in the form of dowry, but you and your son have contrived to cat up everything in the course of a single year and now there seems to be nothing left. The family had been plunged into poverty due to your spendthrift habit".

The gulf of estrangement between the daughter-in-law and mother-in-law became wider and wider. Hitendra seemed to be kindly and affectionate towards Urmilla, but in the presence of his mother he took up a stern attitude towards Urmilla. The situation was becoming explosive and that day came soon enough!

On a dull morning in mid-June, the sky was over-cast with clouds, a gentle moisture-ladenbreeze was blowing. It was about 8 O'clock in the morning. Hitendra had already gone to the School. Urmilla was still asleep. Since the previous night was hot and stuffy, Urmill a could not get a wink of sleep during the whole night although she was very tired doing the house work the previous day. She was feeling drowsy early in the morning with the cool wind blowing. Imagine the rage of her mother-in-law seeing Urmilla asleep even after her son had gone to work! She got hold of Urmilla's large bunch of hair, dangling from the edge of the bed and pulling hard at it dragged her down from the bed and pushed her on the floor. The daughter-in-law woke up with a shock and seeing her mother-in-law running away got hold of an umbrella nearby and with the bent handle of the same, caught her fleeting mother-in-law's ankle. The mother-in-law fell forward and badly cut her fore-head on the door ledge. Pandemonium broke out and the whole neighbourhood shifted to the scene. Peace however was restored and Urmilla signified to the neighbours her intention to leave the house and go to her parents next morning.

Next morning news was flashed in the neighbourhood that Urmilla had committed suicide! The police were already on the spot and took the body for post-mortem examination. To the Police Hitendra gave a statement according to which he found Urmilla lying dead on the floor of the latrine early in the morning with a kitchen knife struck into the right side of her abdomen and that she had apparently committed suicide.

The post-mortem examination revealed a different story. The wound was of such a nature that it could not have caused death so congested quickly. The lungs were congested with signs of asphyxiation and the thoracid cavity was emanating a fragrant odour. In the mouth of the dead body there were bits of cloth with strands of whitefibre attached. The bladder was congested and full of urine with a peculiar sweet smell. On further examination the urine was found to contain chloroform. And the smell noticed in the thoracic cavity was due to the chloroform vapour. The bits of cloth found in the mouth were identified to be those bitten out from a pillow case and its long cloth cover and the attached fibres to be silk cotton.

On a search of Hitendra' a bed room, a pillow was recovered from which a portion seemed to have been bitten off by rats. But the bitten off portion fitted exactly with the portion found in the bitten mouth. A 4 Oz. bottle of B.P. Chloroform made by Boots Pure Drug Co., was found in the kitchen cupboard. A cash memo of the local Pharmacy for the purchase of the chloroform was also recovered. Hitendra could not explain the presence of these things and the Police arrested Hitendra and his mother on suspicion. The mother was later let off for want of evidence. After a preliminary examination the Magistrate committed Hitendra to the Sessions to stand his trial for the murder of his wife Urmilla by asphyxating and poisoning her with chloroform.

Although Hitendra denied all charges, his guilt was proved to the hilt in the Sessions Court. His defence that chloroform was only an anaesthetic was not accepted. According to Taylors's Medical Jurisprudence "when chloroform vapour undiluted with much air and oxygen is inhaled for some lime the patient passes into a stage of paralysis. The muscular tone is abolished and consequently the muscles become quite flaccid. The respiration becomes slow and irregular, the pulse becomes weak. Death occurs from the stoppage of the heart's action or from respiratory paralysis or closure of the epiglottis by pressure of the tongue caused by involuntary spasms". The knife thrust had evidently been made after death.

The Sessions Judge found Hitendra guilty of the pre-meditated murder of his wife Urmilla and sentenced him to death. The High Court confirmed the sentence and a prayer for commuting the death sentence to one of life imprisonment was rejected.

Can Single Bench Override Division Bench

(By Shahul Hameed Moopan, Advocate, Ernakulam)

1. Myself being a junior member of Bar, first of all beg pardon of respectful readers for the mistakes likely to be crept-in in this attempt. I was quiet astonished to read the judgment in O.P. No.2882 of Kerala High Court, reported in 1995 (2) KLT page 794 (Abdul Rahiman v. Hameed Hassan Peruvad & Ors.). By the said judgment learned Single Judge expressed his view inter-alia that S. 5 of the Limitation Act is applicable in considering a belated application for setting aside exparte order passed by the Rent Control Court under Kerala Buildings (Lease & Rent Control) Act 1965 (hereinafter referred to as Act). The learned Single Judge was substantially relying on a Supreme Court Decision reported in 1995 (2) KLT 205 (Gopalan v. Aboobacker) in order to arrive at the above conclusion.

2. I am very much reluctant to observe that, while concluding his views apropos the application of Limitation Act before Rent Control Court, a Division Bench ruling of this Hon'ble High Court, happened to escape the notice of the learned single Judge i.e., the ruling in Selvi v. Nataraja Mudaliar (1994 (1) KLT 82).

3. In Abdul Rahiman v. Hameed Hassan Peruvad & Ors. (supra) the learned Single Judge had adopted the principles laid down by Hon'ble Supreme Court in Gopalan v. Aboobacker (supra) to arrive at the conclusion that the Presiding Officer of a Rent Control Court is not a 'persona designata' and that S.5 of the Limitation Act will help the Rent Control Court to entertain a belated application u/r. 13(3) of Kerala Buildings (Lease and Rent Control) Rules 1979. On the other hand, Supreme Court in Gopalan v. Aboobacker (supra) found that Appellate Authority under the Act is not a 'persona designata' and provisions of Limitation Act will apply to belated Appeals filed under the Act in appropriate cases.

4. Before proceeding further, let me place before the respected readers the following provisions of the Act:

Section 3(1): The Government may by notification in the Gazette appoint a person who is or is qualified to be appointed, a Munsiff to be the Rent Control Court for such local areas as may be specified therein.

Section 18(1)(2): The Government may, by general or special order notified in Gazette confer on such officers and authorities not below the rank of a Subordinate Judge the power of Appellate Authorities for the purpose of this Act in such areas or in such classes as may be specified in the order.

5. A comparative analysis of the above provisions will make it clear that only Sub-Judges and above are competent to be appointed as Appellate Authorities, but Munsiffs and persons qualified to be appointed as Munsiffs could be appointed as Presiding Officers of a Rent Control Court. According to me, even persons other than Munsiffs, but qualified to be appointed as Munsiffs could be appointed in Rent Control Court. The recent constitution of 3 independent Rent Control Courts in our State doesn't rule out the appointment of persons other than Munsiffs, but equally qualified hands from Bar as Presiding Officers of Rent Control Court. The respectful observations of our Hon'ble High Court in Sahadevan v. Sreedharan reported in 1996 (1) KLT 42 will, I think, support my reasoning. Here learned Single Judge was analysing the provisions of Consumer Protection Act, 1986. S.10(1) a of Consumer Protection Act prescribes the qualifications for the President of the "District Forum" as, a person who is, or has been, or is qualified to be a District Judge. In that case, in para.7, the learned Single Judge observes that, the argument of learned counsel for the petitioner that the person qualified to be a District Judge is normally confined to Advocates with sufficient standing who are complete to be appointed as District Judge cannot be brushed aside as untenable. Accordingly the Presiding Officer of a Rent Control Court can be described as an individual and the need not necessarily be a member of a Class (Munsiff). The observation of the learned Single Judge in Abdul Rahiman v. Hameed Hassan P. (Supra), that Rent Control Court is not a persona designata, as the decision rendered by Rent Control Court has finality and authoritativeness between landlord and tenant, and it has power to give a definite judgment, does not appear to be wholly correct. I am sure that quasi -judicial bodies and persona designata's constituted under other Acts, are equally competent to pass final orders and decisions in so far they are competent to pass such orders/decisions, unless they are varied or modified by Appellate or Revisional Authorities, if any.

As the Division Bench ruling in Selvi v. Nataraja Mudaliar (supra) is neither expressly nor impliedly overruled by Supreme Court in Gopalan v. Aboobacker (supra), my observation is that our High Court's view in the above matter is that S.5 of the Limitation Act cannot be made applicable to Rent Control Court for considering a petition to set aside exparte order filed beyond the time prescribed by the rules. Of course, before Appellate Authority application of Limitation Act will govern by Gopalan v. Aboobacker (supra).

'HIPPY-HALLET'

(V.K. Babu Prakash, Judl. I Class Magistrate-Ill, Thiruvananthapuram)

The title of the article is gathered from one of the land mark cases Jones v. National Coal Board decided by His Lordship Alfred Thompson Denning. His Lordship is illustriously known in his abbreviated name, Lord Denning. Denning is the family's name. The case stated above is narrated by his Lordship in his book 'Due process of Law' published by Butterworths.

Lord Denning was retired as the Master of Rolls. Who is the master of rolls? In India we do not have such a title either in the High Courts or in the Supreme Court.

The Master of Rolls is the Presiding head of the civil division of the court of appeal. The criminal division is presided over by the Lord Chief Justice. The court of the master of rolls is the court of record.

Lord Denning was retired in 1982, after along judicial career of Thirty eight cars. He had been the master of rolls for twenty years.

Precisely speaking, Lord Denning did not retire attaining his superannuation. But retired on voluntary motion of his own due to some unhappy incidents.

He had delivered a judgment in ‘Bristol riot case' which had a black history in his career as master of rolls. That was a case in which Lord Denning had to make some observations against some black jury members.

Trial by jury dominated the administration of justice in England upto the end of 19th century. Jurors were selected from the common people. They are not selected at random. They were chosen from a select band of the middle classes. They were responsible heads of households, who came without any pay, not so much even as their expenses. Never was any one of them challenged. Each was worthy representative of the reasonable man so well respected by the law.

The observation of Lord Denning resulted a hue and cry among the black community. They said it was an observation against the black as a race. The Times, Observer, and Guardian the mighty press of England gave vide exaltations against Lord Denning.

The period was a turmoil in his mind. His Lordship never foresaw the implications and its after math. The sad melancholy in his mind precipitated from the observation, later his Lordship chalks out in the book "The closing chapter'. It was written after the retirement. Lord Denning confesses in it that he had never intended the implications as had been promulgated by the press as well as the black community.

After deep thinking and burning the midnight soil in his candle Lordship came out with his decision to spill the beans. He decided to retire voluntarily. The decision was sent to the Lord Chancellor. Lord Chancellor accepted it but proposed a date. Thus Lord Denning retired on 29-9-1982 after his eloquent and exquisite career as the Master of Rolls.

Now come to the case decided by Lord Denning as the appeal lord which has given rise to the tide of the article.

There was a judge named Sir Hugh Imbert Periaim Hallet in the county court. The initials of his long name gave rise to the nickname 'Hippy Hallet'. Before his elevation he took start as a junior at the Bar. Later he got silk in his early career which made him to appear in the privy council. Lord Maugham appreciated his talent so he became the judge.

There was one difficulty with Sir Hallet. He talked too much. He was a sort of loquacious. He got interested in every case which came up before him, so that he divided deep into every details of it. He asked too many questions. Of witnesses in the box. Of counsel in their submissions.

One day, a widow, named Mrs. Jones knocked at his court. She had a brief. That, the roof of a coal-mine had fallen in. The minor child of the widow crushed under it. She came with a writ for damages. The case is known as Jones v. National Coal Board.

During the trial Sir Hallet let off his enthusiasm. He made cross cuts in the smooth flow of examinations and submissions with interruptions one after another. At last the widow's claim was rejected. Probably the National Coal Board would be happy since the plaintiff was non suited with, their cost.

Mrs. Jones preferred appeal. Curiously the board also made a cross appeal. One may wonder what for? The appeal and cross appeal con fined on a common point. That, the Judge's interruptions' were like putting the cart before the running horse, or the interruptions prevented a fair trial.

Eminent jurists came on each side. For the widow Mr. Gerald Gardiner who later became the Lord Chancellor. He was a shrewd lawyer famous for his clarity in submissions. For the respondent board, Mr. Edmund Davies who later became Lord Edmund Davies. He was also a resourceful lawyer. Arguments took at length.

Lord Denning delivered the judgment for the whole court. It laid land mark propositions and self restraints which the judges should keep in the bench.

His lordship said "we much regret that it has fallen to our lot to consider such a complaint against one of her Majesty's judges. No one can doubt that the judge, in intervening as he did, was actuated by best motives. He was anxious to-understand the details and asked questions to get them clear in his mind. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.

Nevertheless, we are quite clear that the interventions taken together, were far more than they should have been. In the system of trial, the judge sits to hear and determine the issues-raised, not to conduct an investigation or examination on behalf of society at large. However a judge is not a mere umpire to answer the question "How's that". His task is to find out the truth to do justice.

Lord Denning quotes Lord Eldon to say' that truth is best discovered by powerful statements on both sides of the question'.

Again quotes, Lord Greene the master of rolls to say that justice is best done by a judge who holds the balance between the contending parties without himself taking part in it. If a judge himself conducts examinations, he descends into the arena and is liable to have his vision clouded by the dust of conflict.

Yes, he must keep his vision unclouded. It is all very well to point justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth and the less dust there is about the better. Let the advocates one after another put the weights into the scales. But the judges at the end decides which way the balance tilts.

If a judge goes beyond the limit he dropes the mantle of a judge and assumes the robe of an advocate.

To quote Francis Becon the Lord Chancellor, patience and gravity of hearing is an essential part of justice, and on over speaking judge is no well turned symbol.

On the conclusion, Lord Denning allowed both the appeal and cross appeal and granted a New Trial.

But the interesting part is that Sir Hallet resigned his judgeship soon after the verdict.

By the decision Lord Denning reminds the lesson.' Beware too much intervention from the bench'.

A Note on 'Velukutty Achary - v. - H.M.Ltd. :

1992 (2) K.L.T. 622'

(By H.B. Shenoy & Ashok B. Shenoy, Advocates, Ernakulam)

Who is an "employee" under the Payment of Gratuity Act 1972? The Kerala High Court propounds its dicta on this particular question in the recent decision in "Velukutty Achary v. H.M. Ltd. (1992 (2) KLT 622)", rendered by a Division Bench. Here, the Hon'ble Court held that a person must be employed as an employee as stated in S.2(e) upon a particular salary per mensem. It also went on to say that a person is an ‘employee' who is supposed to work under the terms of the employment continuously from day to day and further held that a person who is offered work whenever available is not an "employee". In short, according to the dicta in Velukutty Achary's case (supra), any person to be an "employee" under the Payment of Gratuity Act, 1972 must be employed on a monthly salary and he must be supposed to work continuously from day to day. Thereby, the temporary employees and casual employees would not fall within the ambit of the term "employee" under the Act and they will not be able to claim gratuity. This view of the Kerala High Court seems rather confusing and inconsistent with the express provisions of the Act.

Admittedly, S.2(e) of the Act defines the term "employee" for the purpose of the Act. No doubt, a person should be an "employee" as defined thereunder to claim the gratuity under the Act. Therefore, the answer to the question as to who is an employee, is to be gathered on an interpretation of S.2(e). S.2(e) of the Act reads as under.

"Employee means any person (other than an apprentice) employed on wages, not exceeding two thousand and live hundred rupees per mensum, or such higher amount as the Central Government may, having regard to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."

From the above words it can be seen that the definition of "employee" in the section falls in two main parts. The first part of the definition gives the statutory meaning of the "employee". This part of the definition determines an employee by reference to a person (other than an apprentice) employed on wages, not exceeding two thousand and five hundred rupees per mensum or such higher amount as the Central Government may specify, in any establishment, factory, mine, oilfield, plantation, railway company or. shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work. This part determines who an "employee" means. For that one should be employed on wages; wages should not exceed the specified amount; and must be employed in any of the specified nature of work in any establishment, factory, mine, oilfield, plantation, railway company or shop. This is the signification or denotation of the word or what the word, "employee" denotes. The second part of the definition specifically excludes the categories of persons who hold a post under the Central Government or a State Government governed by any other Act or rules providing for payment of gratuity. No doubt, the first part of the definition brings in the concept of contract of employment between the employer of an industrial establishment and the employee. Unless there is a contract of employment between the two or, in other words there is a relationship of employer and employee between them, the definition "employee" will not come into play. But once the relationship of employment is established, its duration would not be material. Even a temporary or casual employee would fall within the ambit of this part of the definition of employee. The definition does not state that a person, in order to be employed should be employed in a substantive capacity or continuously from day to day. Nowhere in the Section or any provisions of the Act is it expressly or impliedly stated that a person should be employed continuously from day to day or should be employed as permanent employee, to be an "employee" thereunder and to claim the gratuity under the Act. There is no warrant whatever to restrict the scope of the term "employee" by deliberately reading into it a limitation that the person to be an employee should be employed continuously from day to day. Such an interpretation which would amount to addition into the Section, words which are not there and which are not contemplated by the legislature has to be avoided particularly in the matter of construction of a piece of social legislation intended to confer retiral benefits in favour of employees. In fact, a reading of S.2A(2) of the Act would lead us to the conclusion that the legislature intended to bring under the purview of the Act those employees also who are not required to work continuously from day to day for the entire 365 days in a year viz., the temporary and casual employees. S.2A(2) brings in a deeming provision whereby an employee who is not employed for the entire 365 days and who is actually employed during a period of 12 calendar months only for 190 days in a mine or in an establishment which works for less than 6 days in a week or 240 days in any other establishments, is deemed to have put in one completed years of service. This deeming provision would clearly show that the legislature intended to bring under the ambit of the Act, those employees also who are not employed continuously from day to day. The thrust of this deeming provision is that an employee need not be in employment or service under the employer continuously from day to day for a whole period of 12 months and that appears to be the plain meaning without gloss from any source. In short, it is not essential that a person should be supposed to work continuously from day to day under an employer, so as to be an "employee" under the Payment of Gratuity Act, 1972. Any "employee" irrespective of the fact whether he is temporary or casual or employed intermittently, would be entitled to gratuity under the Payment of Gratuity Act, provided, of course he satisfies the conditions in S.4 read with S.2A. It can be seen that there is not even a slightest implication either in the definition clause or other provisions of the Act, to support the contrary view upheld by the Hon'ble Kerala High Court in Velukutty Achary's case (supra). In fact, the very implication in S.2A(2) seems to contradict the dicta of the Hon'ble High Court. In short, the view upheld by the High Court that a person who is supposed to work under the terms of the employment continuously from day to day alone is an "employee", it is respectfully submitted, is incorrect.

Further, the Hon'ble High Court seems to have gone wrong w line holding that a person must be employed as an employee as slated in S.2(e) upon a particular salary per mensum. Of course, no doubt, the person should be an employee as stated in S. 2(e). Also, there can be no doubt that he should be employed on wages. But should he be employed on monthly wages itself to be an "employee" under S.2(e). Does the Section insist so? The Hon'ble High Court has answered it in the affirmative on the strength of the words, "per mensem" appearing in the Section.

Let us examine the definition clause. The opening words, ".......... any person (other than an apprentice) employed on wages ..." reveal that the person should be employed on wages. Thus, once the employment of a person on wages is established, the definition clause strikes into action. However, it is not material that the wages should be monthly based. The basis or the system of payment of wages does not find a place in the definition. It does not contemplate that the wages should be on monthly basis or weekly basis or daily basis or piece rated basis. Of course, it is true that it lays down a limitation as to the quantum of wages payable at Rs.2,500/- per mensem or such higher amount as the Central Government may specify. That is brought in only to exclude employees drawing higher amount of wages. The exclusionary words, "...... not exceeding two thousand and five hundred rupees per mensem,..." brought in' for the aforesaid purpose, does not seem to give even a slightest implication that the employee should be employed on monthly wages. It escaped the attention of the Hon'ble High Court that the opening words and exclusionary words form two distinct parts. Here it is pertinent to note the presence of a comma just after the word, "wages" and just before the exclusionary words begin. It is also worth considering that the first proviso to S.4(2) of the Act lays down the mode of calculating the daily wages of a piece-rated employee for the purpose of calculating the gratuity payable to him the rounder. This proviso which also escaped the attention of the Hon'ble High Court, no doubt, leads to an irresistible conclusion that all persons employed on wages irrespective of whether they are monthly rated, daily rated, weekly rated or piece-rated are "employees" under the Act. As could be gathered from S.2(e), it is not necessary that a person should be employed on monthly wages itself to be an "employee" thereunder. He could be a monthly rated, daily rated, weekly rated or piece-rated employee. The only restriction is that his wages should not exceed Rs.2,500/- per mensem or such higher amount as may be notified. By holding otherwise, the Hon'ble High Court has legislated and amended the opening words,"... employed on wages ...." to "employed on monthly wages".

Though the legal points upheld by the Hon’ble Kerala High Court in Velukutty Achary's case (supra) does not enunciate the correct position of law, the dismissal of the appeal thereto seems to be right on the facts of the case. The Hon'ble High Court went wrong in holding that Shri. Velukutty Achary was not an employee on the pretext that he was called by the employer only whenever there is work and paid wages; that he is not subject to any contract of employment and therefore he cannot comeunder S.2-A(1). Simply because he was called and employed intermittently by the employer only whenever there is work would not result in his ceasing to be an employee. In such case also there is contract of employment for a fixed tenure or period. No doubt, he may be a casual or temporary employee. But still he is an "employee" under S.2(c) which does not make any distinction between temporary, casual or permanent employees and thereby he would also be entitled to the benefit of S.2-A of the Act. However, from the facts it can be seen that Shri Velukutty did not satisfy the conditions in S.2-A read with S.4 of .the Act inasmuch as he does not have five years continuous, service under the employer as was rightly held by the Controlling Authority and Appellate Authority . under the Act and it is on this count, the appeal deserved to be dismissed. In short, the diet as laid down on the legal points in the instant case, it is respectfully submitted, require reconsideration.