1991 (2) KLT143 - A Criticism

(By P.S. Vasavan Pillai, Advocate)

The Bench consisting of their Lordships Shri K.S. Paripoornan and Shri B.M. Thulasidas has held as reported in 1991 (2) KLT 143 (Joseph Binoy v. Union of India) that Article 134 A of the Constitution of India "does not contemplate the filing of a written application at all". According to Their Lordships certificate for appeal to the Supreme Court can be granted only on oral application made by the aggrieved party instantly on pronouncement of the judgment by the High Court or suo moto by the Court. True, some other Benches of other High Courts cited in the judgment also have ruled so. However, the Supreme Court has not looked into the question so far.

One thinks the decision requires a reappraisal.

Article 134A of the Constitution reads, "Certificate for appeal to the Supreme Court: Every High Court, passing or making a judgment, decree, final order or sentence referred to in clause (1) of Article 132 or clause (1) of Article 133 or clause (1) of Article 134,

a. may, if it deems fit so to do on its own motion; and

b. shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Article 132 or clause (1) of Article 133 or as the case may be, sub-clause (c) of clause (1) of Article 134, may be given in respect of that case".

With due respect, I may state that Article 134 A or for that matter Art.132(1) or 133(1) or 134(1)(c) does not prohibit the grant of the certificate for appeal on a written application. 134A only enunciates that the certificate can be granted on oral application itself without encumbering the party with the necessity of a written application. It is an enabling provision, for an oral application and not a prohibitory provision against a written request. The need of the 44th Amendment by which Article 134A was incorporated arose because Articles 132(1), 133(1) and 134(1)(c) were silent about the oral application.

It does not stand to reason that if a certificate can be granted on an oral application, the same cannot be given on a written request.

The judgment refers to the book 'Constitution Amendment in India' which is only a publication of the Lok Sabha Secretariat and not a compendium of Lok Sabha debates on Amendments. However, even the extracted passage from that book does not preclude a written application.

The Honourable Court has also interpreted the word "immediately" in clause (b)of Article 134, A as to mean the moment just after the pronouncement of the judgment or order. This is too-restricted an interpretation, it is submitted. The word "immediately" can take in itself a few days. One need not mention that Constitutional Provisions require a wide interpretation.

If a party is entitled to get a certificate for appeal, it is not in the interest of justice to deny him that certificate solely on the ground that the application is made a few hours or days after the pronouncement of the judgment or order.

The concerned advocate may not make an oral request soon alter the pronouncement of the judgment or order or sentence because of several genuine reasons, one being the lack of timely instruction from the party. But that should riot come in the way of agitating an important point in the normal course.

'An aggrieved party can even orally apply for a certificate of appeal, the next moment after the pronouncement of the judgment, decree, order or sentence. But he can apply in writing in the immediate future also'. Only this line of interpretation would fully meet the ends of justice.

March of Law

Constitutional Law and Administrative Law

(K.S. Rajamony, Advocate, Ernakulam)

Even though Art.311(2) Second Proviso (b) gives power to the disciplinary authority to dispense with inquiry, if it is satisfied that it is not reasonably practicable to hold an inquiry, this power cannot be exercised arbitrarily and the reasons recorded . will be subjected to judicial review. Jaswant Singh (AIR 1991 SC 385) reiterates this principle. In this case, a police official was dismissed without a departmental inquiry invoking Art.311(2) second proviso (b). The reasons recorded for dispensing with the inquiry were "that he has thrown threats that he with the help of other police employees will not allow holding of any inquiry and they will not hesitate to cause physical injury to the witnesses and inquiry officer". The court found that there were no materials to support those allegations. The decision to dispense with the inquiry cannot be rested solely on the/ipse dixit of the authority concerned and the satisfaction must be based on objective facts, said the Court, in Tulsiram Patel (AIR 1985 S.C. 1416), members of the Industrial Security Force disobeyed orders and resorted to gherao and dharna, shouting threats of violence and bodily harm to the supervisory staff; railway employees struck work and resorted to intimidation and assault of superior officers and loyal workers calling for prompt and immediate action, the decision that the holding of an inquiry was impracticable was upheld. In Subramonian (1984 KLT1084), Kerala High Court pointed out that 'practicability' is not expediency. Public interest was held to be not relevant consideration. The possibility thatan inquiry may whip up feelings among the staff and will result in agitation affecting maintenance of essential services, inquiry will be delayed due to dilatory tactics and resort to go-slow, work-to-rule etc; affecting the running of trains and staff will not come forward to give evidence in view of their close comaraderie, were not considered by the Division Bench as good reasons within the meaning of proviso (b) to dispense with the inquiry. In Chief Security Officer (J.T. 1991 (5) S.C. 117) the ground for dispensing with the inquiry viz., that if witnesses appear, they will suffer personal humiliation and insults with danger even to their family members, was rejected and the punishment was quashed. In Satyavir Singh (AIR 1986 S.C. 555) the Supreme Court dealt with the case of the dismissal without inquiry of some employees of the RAW who indulged in gherao of their superiors, pen-down strike and making inflamatory speeches. Upholding the dismissal orders the Supreme Court said that where the disciplinary authority feels crucial and material evidence will not be available in an inquiry, because, the witnesses who could give such evidence are intimidated and the evidence available would only be peripheral which will render the inquiry a mere farce, the disciplinary authority would be justified in coming to the conclusion that an inquiry is not reasonably practicable. Sawant (AIR 1986 S.C. 617) is another case where the dismissal of a police constable without inquiry was upheld. Identical cyclostyled orders had been passed against 43 others also. This was pointed out as non-application of mind. The Court did not consider it as a vitiating factor because 'in case of collective coercive action of a group, it might not be possible to particularise the acts of each individual. Though prima facie the serving of cyclostyled orders would show non-application of mind, yet it -was not a universal rule and would depend on the fact situation of each case. In Tulsiram Patel also such a contention had been rejected. In Arjun Chaubey (AIR 1984 S.C. 1356), the charge levelled against the civil servant was that he had misbehaved with an officer. The same officer rejected the explanation and passed an order dispensing with the inquiry. The dismissal order was quashed as violative of natural justice because no one can be a judge in his own cause. However, in Ikrammuddin Ahamed Borah (AIR 1988 S.C. 2245), relying on Tulsiram the Supreme Court upheld the dismissal of a Police Sub Inspector without inquiry and said that it would not be reasonably practicable to hold an inquiry where witnesses are terrorised, threatened or intimidated and that in considering the relevancy of the reasons the court will not sit in judgment like a court of first appeal. If two views are possible the court will decline to interfere. On the material on record, the court did not find it possible to hold that there was an abuse of power. From the above decisions two principles emerge: (i) reasons must be recorded, (ii) they must stand an objective test and should not be irrelevant or tainted by mala fides or extraneous considerations. Tulsiram however said that the communication of reasons to the civil servant was not mandatory though the same was desirable to avoid the allegation that reasons were fabricated subsequently. This principle was applied in Bakshi Sardari Lal (AIR 1987 S.C. 2106) in which 18 police men were dismissed by invoking clause (c) of second proviso to Article 311(2). The court after a perusal of the original records held that reasons for dismissal had been recorded though not communicated and that was held to be enough.

In Union of India v. Mohd. Ramzan Khan (AIR 1991 S.C. 471), a three-judge Bench of the Supreme Court has removed the misconception that after the Forty-Second Amendment doing away with the opportunity of showing cause against the proposed punishment under Art.311(2), the delinquent has lost his right to be furnished a copy of the inquiry report. The practice of furnishing copies of the inquiry report, along with the order imposing punishment has been held to be illegal and violative of natural justice. The Court has categorically held that the deletion of the second opportunity has nothing to do with the duty to serve a copy of the inquiry report to the delinquent and that natural justice and fair procedure demand that the inquiry report must be furnished to him. He is not only entitled to a copy of such report but is also, entitled to make a representation against it and such representation has to be taken into consideration by the disciplinary authority not only on the question of guilt, but also in choosing the punishment. This is because, disciplinary proceeding is quasi-judicial and the ultimate decision of the disciplinary authority on the question of guilt and punishment will be influenced by the conclusions of the Inquiry Officer. Decisions of different High Courts and two-judge Benches of the Supreme Court lo the contrary have been held to be no longer good law. On the same principle advice of Public Service Commission, if any, received by the disciplinary authority has also to be furnished to the employee to enable him to make representation against it. This decision dated 20-11-1990 is given only prospective operation so that punishments imposed earlier will not be open to challenge on this ground. With respect, such an unusual direction was unnecessary. What about cases where punishment has been imposed, but the matter is pending in appeal, revision or review?

In Orissa Judicial Services Association v. State of Orissa (JT 1990 (4) S.C. 726 = AIR 1991 S.C. 382), members of the subordinate judicial service challenged direct recruitment of District Judges on two grounds: (i) It adversely affected their chances of promotion resulting in stagnation and frustration and (ii) Rule 7 of the Orissa Superior Judicial Service Rules, 1963 which confers power on the Government in consultation with the High Court to decide as to which vacancy shall be filled up by direct recruitment or promotion is arbitrary and unconstitutional. The first ground was rejected because Art.233 of the Constitution contemplated promotion from the subordinate judicial service as well as by direct recruitment from members of the bar. The Court pointed out that during the period 1961 to 1987 only 12 District Judges were appointed from the Bar while 100 posts were filled by promotion, over and above 10 ex-cadre posts. The grievance of stagnation was thus baseless and invited a caustic comment from the court that, "The members of the judicial service should not in our opinion indulge in this kind of frivolous litigation as it does not bring credit to the judicial administration". Upholding the validity of Rule 7 it was pointed out that by administrative orders a quota of 25% for direct recruitment and 75% for promotion had been fixed. Statutory rules can be supplemented by administrative instructions prescribing quota for the two sources of recruitment. The court however suggested that the provision for quota be made in the rules.

Kumari Shrilekha Vidyarthi v. State of U.P. (AIR 1991 SC 537) marks a welcome deviation from the conservative approach in interfering with State action in contractual matters. Setting aside the en-masse termination of appointments of all Government Counsels in U.P., a two-judge Bench of the Supreme Court held that the power of judicial review is available even in the sphere of contractual matters governed by private law principles. The test of Art.14 has to be satisfied even where rights and obligations flow from a contract. All actions of the State are meant for public good and must be fair and just in any sphere of its activity. This is more so when the modern trend is to examine the unreasonableness of a term in contracts with Government where the bargaining power is unequal and are contained in standard forms. A contract entered into by the State or its instrumentality is no longer a mere private activity scrutiny liable to be tested on the touch stone of Art.14. This decision partially overrules some of the propositions laid down in Geetha Timbers v. State of Kerala (1990 (1) KLT 401 (F.B.) and Joy v. Superintending Engineer (1990 (2) KLT 146) because it will not now be correct to say that if the contract by the State is non-statutory, the rights are not governed by Constitutional provision, but only by the contractual terms. It has however to be mentioned that Kumari Shrilekha has not noticed a somewhat contrary view taken by another Two-Judge Bench decision in Bareilly Development Authority v. Ajai Pal (AIR 1989 SC 1076) and an earlier Five-Judge Bench decision in Har Shankar v. Deputy Commissioner (AIR 1975 SC1121). A precise restatement of the law by a larger bench is required when an appropriate case arises.

In Nally Bharat Engg. Co. v. Bihar (JT 1990 (2) SC 96), a Government order transferring a case from one Labour Court to another on the representation of the workman without notice to the management was quashed as violative of natural justice. It is laid down in this case that even where natural justice is dispensed with in a Statute, courts will ensure administrative justice by applying the test of fairness and fair play in action. Existence of reasonable grounds and application of mind have been held to be essential ingredients of fair procedure.

The evolution of the concept of natural justice in India is indeed fascinating. In the 1950s the quest of the courts was mostly to identify judicial, quasi-judicial and administrative actions and to find out in which types of functions, the administrative authority had a duty to act judicially and apply the principles of natural justice. In the 1960s the concept was becoming increasingly expansive. Objective standards began to be applied and civil consequences visiting on the subject became relevant considerations. Ridge v. Baldwin (1964 AC 40) inspired a number of judgments where the necessity to follow a judicial procedure with consequent application of the principles of natural justice was inferred from the facts and circumstances of each case which were held to be the best guide to show whether a man had been condemned or not and whether grave consequences accrued or not. The next stage was ushered in by Dr. (Miss) Bina Pani Dei (AIR 1967 SC 1269) wherein the Supreme Court emphatically asserted that even an administrative order has to be made consistently with the rules of natural justice. The 1970s were heralded by A.K. Kraipak (AIR 1970 SC 150) which laid down tersely that the requirement of acting judicially is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously and that the principles of natural justice apply to the exercise of administrative power as well. However, the same Judge, Hegde, J. observed in J.N. Sinha (AIR 1971 SC 40) that rules of natural justice can operate only in areas where statutory provisions do not exclude expressly or by necessary implication the application of the rules. The 1980s are dominated by Maneka Gandhi (AIR 1978 SC 597) which held that the principles of reasonableness is an essential ingredient of equality and that even though there are no positive words in the Statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The inquiry must always be: does fairness in action demand that an opportunity to be heard should be given to the person affected? Now the last decade of the 20th century has commenced with the proposition that even when a statute specifically takes away the principles of natural justice, courts will fill the omission by the test of fairness and fair play in action.

Charan Lal Sahu v. U.O.I. (AIR 1990 SC 1480), where the Supreme Court upheld the Constitutional validity of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, is another case where the importance of the audi alteram partem was reiterated as a rule to ensure just decisions and providing a healthy check on abuse of power. It was emphasised in Charan Lal that non-observance of natural justice is itself prejudice and no further proof of prejudice is necessary.

Subhash Sharma v. Union of India (AIR 1991 SC 631) is a case where the Supreme Court Advocates on Record Association, the Bombay Bar Association and an Advocate filed applications under Art.32 by way of Public Interest Litigation for mandamus to the Union of India to fill up vacancies of Judges in the Supreme Court and High Courts. Several interlocutory directions resulted in the filling up of vacancies to a considerable extent. The case, however, contains an illuminating discussion on the v problems facing the Indian Judiciary particularly the heavy back log of cases. The Three-Judge Bench including the Chief Justice presents a number of suggestions such a s the need to treat administration of justice as a plan subject, increasing the Judge strength (the court disapproved the reduction of the sanctioned strength of the Kerala High Court from 24 to 22), the need to complete the selection process of a judge within three to four months and to initiate the process 6 months in advance of the vacancy and the need for a rule or policy that recommendations finalised by the C.J.I., should not be re-opened on a mere change of the Chief Justice or a Chief Minister. The Court observed that the view of the majority in S.P. Gupta's (AIR 1982 SC 149) case denuded the primacy of the Chief Justice in the consultative process and whittled down the significance of consultation envisaged by the constitutional scheme and context. The executive sending up proposals directly to the centre without reference to the C.J. of the State is wholly impermissible, said the court. The court observed that the views of the C.J. of the States and the C.J.I., should be given a decisive import. "Who is able to decide the qualities of Lawyers proposed to be elevated to the Bench more than the Judges of the Courts before whom they practice?", asked the learned Judge. This Three-Judge Bench referred the matter to the Chief Justice for constituting a Bench of nine judges to examine the correctness of the opinion of the majority in S.P. Gupta's case relating to the status and importance of consultation, the primacy of the position of the C.J.I., and the view that fixation of judge strength is not justifiable.

When can an administrative authority be said to be biased? The principles have been reiterated in Hindustan Petroleum Corporation v. Yaswant (JT 1991 (1) SC 38). Merely because the competent authority to determine compensation is an employee of the Corporation, it cannot be said that he will have a bias in deciding the issue. However, in view of litigations pending between the competent authority and the land owner, apprehension of bias was held to be well founded. Quoting Metropolitan Properties Co. (1968 (3) All. E.R. 304) the Supreme Court emphasised that justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking: 'the judge was biased'.

Subhash Kumar (JT 1991 (1) SC 77) is a shocking illustration of how unscrupulous litigants can abuse Public Interest Litigation and demonstrates how, if the veil is lifted, one can discover private interest litigation masquerading as Public Interest Litigation. This is a case where a frustrated contractor who failed to get more and more quantities of slurry from a certain collieries ventured to gain his personal interest by launching a Public Interest Litigation to stop discharge of slurry into the Bocarrow river on the ground of water pollution. The facts alleged by him were totally false and highly motivated. The petition was dismissed with costs of Rs.5000/-, Rugmani v. C. Achutha Menon (JT 1991 (1) SC 265) is yet another case where the court held that Public Interest Litigation should not have been invoked on the mere ground that a Municipality did not get an interim stay vacated. Setting aside the Kerala High Court's judgment, the Supreme Court made the comment "the High Court appears to have been swayed in the wave of Public Interest Litigation". In C.P. M.S. Samiti v. U.P. (AIR 1990 S.C. 2060) the Supreme Court came down heavily on a Public Interest Litigation petitioner whose allegations regarding environmental pollution were found to be the result of a long .history of enmity and hostility. The court gave the warning that the court should deal with Public Interest Litigation with a great deal of circumspection and caution and protect society from the so-called' protectors'.

These are however stray cases of abuse and constitute exceptions. By and large this new jurisdiction is being used effectively by public spirited citizens, the lawyer and an activist judiciary. M.C. Mehtha who is a crusader for good causes is an example. AIR 1991 S.C. 417 is a case where M.C. Mehtha brought the problem of employment of children in match factories of Sivakasi before the Supreme Court. The court gave several directions for the welfare of children and appointed a local committee insisting of the concerned District Judge, District Magistrate and a public activist to oversee the court's directions and also awarded Rs.3000/- to M.C. Mehtha for his expenses to be paid by the Government of Tamil Nadu.

Sachidanand Pandey (AIR 1987 S.C. 1109) and Rural Litigation Kendra (AIR 1987 S.C. 2426) are two cases which show the self-imposed limitations put by the Court on the exercise of Public Interest Litigation jurisdiction. In the first case, two citizens, one of them the Secretary of a trade union of workers of the Zoological garden and the other a life member of the Calcutta Zoo challenged the transfer of four acres of the zoo to the Taj Group of Hotels for i he Construction of a five star Hotel on the ground that it will lead to environmental degradation. The contentions were not countenanced. In the second case the court ordered the closure of some of the lime stone quarries for up-setting ecological balance. In Dahanu Taluka Environment Protection Group (J.T. 1991 (2)S.C. l)it was reaffirmed that when public projects are objected to as endangering ecological balance, the court's role is restricted to see whether Govt., has taken into account all relevant aspects and has not been influenced by extraneous considerations. Even though there are occasionally judicial warnings that proper guidelines should be laid down for PIL cases, there is a massive inflow of PIL cases of diverse varieties which demonstrates a widespread societal belief that the judicial process is capable of proving to be a panacea for all kinds of public miseries. Since most of the genuine PIL cases impinge onArt.21, it is hoped that the judiciary will fulfil the public expectations to the extent possible in this expansive jurisdiction.

What are the limits of judicial power to review the policy options of administrative authorities? When can a development scheme be attacked as unreasonable and hence violative of Art.12? These questions are discussed in Mahajan v. Jalgon Municipal Council (J.T. 1991 (1) S.C. 605). It was held that courts will not interfere in matters of economic policy unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This is recognition of the administrator's right to trial and error as long as it is bona fide and within the limits of authority. The administrative law test of reasonableness is not the court's own standard of reasonableness as it might conceive it in a given situation. A thing is not unreasonable in the legal sense merely because the court thinks it is unwise. Reasonableness in the4egal sense would require judicial scrutiny as to whether there has been abuse of power, whether ii is a decision to which no reasonable authority could have come (what is commonly called 'Wednesbury unreasonableness'), whether irrelevant matters are taken into consideration and the relevant eschewed, whether any rule has been violated, whether the act is in bad faith or for an improper motive etc.

In R.S. Dass (AIR 1987 S.C. 593), K.N. Singh, J. has relied on a rather an annoying unconvincing proposition that when power is exercised by high ranking and responsible officer, there will be a presumption that he will act in a fair and impartial manner. Sabyasachi Mukharji, J. however pointed out that there has been considerable erosion in the intrinsic sense of fairness and justice in senior officers. It is surprising that K.N. Singh, J. should have relied on such an unrealistic proposition because nobody knows better than the Judges about corruption in high places. Let every issue be judged on its merits without such fanciful presumptions.

In Parma Nanda (AIR 1989S.C. 1185),it has been ruled that what punishment would meet the ends of justice is exclusively within the jurisdiction of the disciplinary authority and that the adequacy of penalty, unless it is mala fide, is not for the High Court or the Central Administrative Tribunal. The only exception is where a person is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court as provided in Clause (a) of the second proviso to Article 311(2). With respect, it is submitted that such rigid formulation fettering the Tribunal's power may result in failure of justice. Justice will not be miscarried if power to interfere with penalty is conceded to the Tribunal in cases where the penalty is so disproportionate as to shock the conscience and so arbitrary as to be violative of Art.14. While reserving the right to interfere with the finding of guilt and punishment to itself under Art.136 as in Bhagat Ram (AIR 1983 S.C. 454), the Supreme Court has not conceded the right to the High Court and the Tribunal. This will work serious injustice, because the employee in such appropriate cases has to indulge in the costly and time-consuming exercise of the writ proceeding in the High Court to reach the Supreme Court to get justice. There is no reason why there should be such a total bar of jurisdiction on the High Court and the Tribunal. A court of law is the best forum to adjudicate the civil servant's rights and is characterised by openness, fairness and impartiality as a result of long tradition. Executive justice must always be controlled by judicial justice. In any case, the presence of the Administrative Member along with a Judicial Member in the composition of the Tribunal justifies conceding power to the Tribunal to intervene in the matter of punishment and in the conclusion of guilt.

Regarding the Supreme Court's power to interfere with the punishment, the court said, "this court exercised the equitable jurisdiction under Art.136 and the High Court or Tribunal has no such power or jurisdiction". In the first place, there is no mention of 'equity' in Art. 136. Secondly, if there is equitable jurisdiction under Art.136, it is equally available under Art.226 also. Under the system of jurisprudence we have inherited from the British, our superior courts administer both law and equity. Even assuming that only legality and not merits can be gone into by the High Court, that cannot be said of the Administrative Tribunals created under Art.323A of the Constitution. If it is laid down that the Administrative Tribunal like the High Court can examine only the legality and not the merits, then the very purpose of creation of the Administrative Tribunal and the inclusion of an Administrative Member in its composition will fail in the objective of correcting administrative injustice by an independent body which takes care of both merits and legality. Parma Nand therefore requires reconsideration.

Concept of 'Workman' Under the Workmen's Compensation Act, 1923

(By Valsamma Paul, M.A., LLM., Applied Economics, University of Cochin)

The Workmen's Compensation Act, 1923 is an Act, which provides for the payment of compensation by employer to his workman for injury by accident. It is a legislation, beneficial to workman and hence, the question. 'who is a workman?' assumes significance. In common parlance, a ‘workman' means a person who does manual work. 'Workman' under the Workmen's Compensation Act, 1923, however, has a wider connotation.

The use of the words 'employment' and 'employed' in the definition [1] suggests the existence of a master and servant relationship. This relationship is characterised by a contract of service. The indicia of contract of service are the master's power of selection of his servant, payment of wages or other remuneration, the master's right to control the method of doing the work and the master's right of suspension of dismissal [2].The prima facie test to decide the existence of master and servant relationship could be the master's right to supervise and control the work done by the servant not only in the matter of directing what work the servant was to do, but also the manner, in which it was to be done. The nature or extent of the control might vary from business to business and is by its nature incapable of precise definition [3].

It is the master's right to control the work of the servant that makes the latter a workman and distinguishes him from an independent contractor. In Hasbannessa v. Zahiruddin [4], the Calcutta High Court applied the test of control to the case of drivers. The court admitted that a driver can be a workman. But all drivers cannot be categorized as workmen. The driver, who hires out a car and has complete freedom during the period of hire to use the car for purposes and routes, as he may think best, with no control from the owner, is not a workman. This is because there is no employment and he does not have an employer. He is only a bailee of the taxi.

A contractor is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons. But he will not submit himself to their control in respect of the details of work [5]. There is a clear-cut distinction between a contractor and a workman. An independent contractor is charged with a work, and has to produce a particular result. But the manner, in which the result is to be achieved, is left to him. A workman, on the other hand, may also be charged with a work and asked to produce a particular result. But he is subject to the directions of the master as to the manner, in which the result is to be achieved [6].

But the language of the definition of workman [7] does not import in the contract of employment powers of dismissal or power of direct superintendence or control. A coolie employed by a mistry for a specified remuneration on behalf of the principal to do the work of the principal is, therefore, a ‘workman’ under the Act. His employment by the mistry is a contract of service within the meaning of the definition [8].

The criterion of control came before the Supreme Court in Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments[9]. The Court laid down that for deciding the question of relationship of master and servant, the test of control over the manner of work is unrealistic. In its application to skilled and particularly, the professional work, the control test, in its traditional form, has really broken down.

The main chunk of the definition of 'workman' under the Workmen's Compensation Act focuses on a 'railway servant', who can be said to fall within the concept of 'workman' under the Act [10]. As per the definition, any person, who is a railway servant as defined in S.3 of the Indian Railways Act, 1890 [11], is a workman. But he must not be permanently employed in any administrative, district or sub-divisional office of a railway. Moreover, he must not be employed in any such capacity as is specified in Schedule II [12]. Accordingly, a person employed on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle, is not a workman [13].

The definition excludes a railway servant, who has to work habitually and continuously in the office. If it can be established that the person concerned has to perform out-door duties in addition to his duties in the railway office, he would be a workman. This is manifest from the expression 'not permanently employed' in any administrative, district or sub-divisional office of a railway [14].

In order that a person may claim to be a workman within the meaning of the Act, he must, unless he is a railway servant and is covered under clause (i) of S.2(1)(n), prove that he comes under one or other of the clauses set out in Schedule II [15]. This Schedule gives a list of persons who are workmen within the meaning of clause (ii) of S.2(1)(n) of the Act. The words 'in any such capacity as is specified in Schedule IF clearly indicate that the list given in Schedule II is completely exhaustive and not illustrative. If the employment is one that would not come under any of the categories mentioned in Schedule II, the definition of 'workman' in S.2(1)(n) cannot be applied to that person [16]. It is worth noting that Schedule II excludes persons employed in clerical capacity from the concept of 'workman’ under the Act.

To make a person a 'workman', it is not necessary that his contract of employment must be in writing. It is immaterial whether the contract of employment is express or implied, oral or in writing.

Definition of "workman' includes dependants of a workman also. The need for the inclusion of dependants within the purview of the definition arises, when an injured workman dies. This enables legal proceedings being continued even after the death of the workman.

Any person, working in the capacity of a member of the Armed Forces of the Union, falls outside the purview of S.2(1)(n) of the Act. Therefore, such a person is not a 'workman', entitled to enjoy the protection afforded by the Act.

One of the grounds, on which a person is excluded from being considered a workman under the Act, is that his employment is of a casual nature. The word 'casual' has not been defined in the Act. It may not be possible to define exactly what casual employment is. There are some cases, in which employment is obviously not casual and other cases, in which employment is obviously casual. But there are a number of debatable cases in between. Thus, the question, whether an employment is of a casual nature or not, depends on the circumstances of each particular case. An employment is not of casual nature, if there is regularity or periodicity of employment [17]. When the owner of a coconut garden engaged professional climbers for plucking coconuts from time to time and once in 50 days or so, the climber had to be engaged, it was held that it cannot be said that he was employed casually [18]. Casualness, in the context in which it is used in Act, indicates employment by chance.

The transient or protracted nature of an employment can be the criterion for deciding its casualness or regularity. If an employment is reasonably and normally spread over sometime, how can it be 'casual'? On the other hand, if it is very brief and transitory, it may be a casual employment [19]. But from the mere fact that a person worked for two days only, before he died in an accident, it would not automatically follow that his employment was of a casual nature. The reason is that even a regular employee may meet with an injury immediately after he joined duty [20].

Is the mode or the time of payment conclusive on the question of the casualness of an employment? It cannot determine the question of the casualness of an employment. The mode or the time of payment is only a matter of convenience and mutual adjustment. Merely because a workman is paid on daily basis, his employment cannot be casual [21].

The burden of proof of the casual nature of employment is on the employer [22]. If an employer does not produce the muster roll, the issue as to the employment being casual must go against the employer [23].

But if a person is employed casually, he would be a 'workman' under the Act, if he is employed for the purpose of the employer's trade or business. Trade means exchange of goods for goods or goods for money. It may be any business carried on with a view to making profit. Such business may be manual or mercantile as distinguished from the liberal arts or learned professions [24]. 'Business' is taken to mean anything that occupies the time, attention, and labour of men for the purpose of livelihood or profit [25]. Though the word 'business' is ordinarily more comprehensive than the word 'trade', quite often 'business' is used as synonymous with trade [26].

An agriculturist started boring operations in his well so as to make it fit for purposes of irrigation. A person was employed by him as a labourer for the purpose. It may be true that the labourer in this case is a casual worker. But the agriculturist engaged him for the purpose of his agricultural business. So, he was held to be a ‘workman' [27].

The fact that a person is employed for the purposes of his employer's subsidiary and not principal business cannot affect his claim to be a workman. A person, though working as clerk, was letting out houses to others and deriving benefit therefrom. Letting out of houses was only his subsidiary business. Still, it cannot be denied that his employment of workmen, in the construction of houses to be let out, was for the purposes of his trade or business [28].

In order to exclude a person from the category of 'workman', both the conditions, that is to say (1) that his employment is of a casual nature and (2) that he is not employed for the purpose of employer's trade or business, have to be satisfied [29]. Both these qualifications must be present together [30]. This is because the word 'and' occurring between the above mentioned conditions has been used conjunctively [31].

In view of the Apprentices Act, 1961 [32], the definition of ‘workman' under the Workmen's Compensation Act, 1923 stands modified. Now the definition of ‘workman' includes any person who is engaged as an apprentice as defined in the Apprentices Act, 1961 and who in the course of his apprenticeship training is employed in any such capacity as is specified in Schedule II to the Workmen's Compensation Act [33].

Under the Workmen's Compensation Act, the exercise and performance of the powers and duties of a Government Department are considered to be trade and business of such Department [34]. Therefore, a person engaged for driving a jeep of the Central Excise Department is a workman [35].

Are railway porters workmen? A licensed railway porter has to work under the overall supervision of the officers of the railway according to the roster drawn by the authorities. He is under the disciplinary control of railway. His licence is liable to be cancelled for misconduct, disobedience and inefficient working. There is, therefore, the relationship of employer and employee between the railway and the porter. Hence, a railway porter was held to be a 'workman' [36].

The question, whether workmen employed by contractors are 'workmen' for the purpose of the Workmen's Compensation Act, 1923, has provoked judicial analysis [37]. A building contractor appointed a person to do white washing work on piece-rate basis. He was doing white washing as part of parcel of the contract undertaken by the contractor. The appointee was expected to use the material supplied only under the supervision of the contractor. Because of this control, he was held [37a] to be not an independent contractor, but a workman paid on job basis.

Suppose an agent of a contractor appoints a person to help him in performing the work undertaken by the contractor. Is a person appointed by the agent a 'workman'? If he is, of whom? This question has also come for examination by courts. A contractor had a contract to unload wagons. He employed a maistri who worked under him with the assistance of coolies. One of the coolies met with an accident, while engaged in unloading a wagon and died. The question arose whether the cooly was a workman of the contractor. At the time of the accident, the cooly was employed for the purpose of unloading the wagon, which was the business of the contractor. It is true that the cooly was employed by the maistri and not by the contractor. But he was employed for executing the purpose of the business of the contractor. Therefore, he was held to be a workman of the contractor [38].

Another issue analysed by courts was whether a 'contractor' and his 'coolies' are workmen of the person, whose work the former executes. The work in the coal department of a mill was carried through a contractor. He was paid a fixed monthly sum as per a contract. Out of it, he paid to persons employed as coolies for the work. The contractor and his coolies were granted bonus and annual leave with wages just like the other employees of the mill. This led the court to conclude that the so-called 'contractor and his coolies' were workmen of the employer of the mil [39].

Entries in Schedule II to the Workmen's Compensation Act, in fact, form the fulcrum, around which the broadness of the concept of "workman' under the Workmen's Compensation Act revolves. These entries have also been subject to judicial interpretation, which led to the widening of the concept. A person was employed to operate a tractor. When an accident occurred, the said vehicle was not in operation but was merely loaded on a truck for being sent to another place. Still the operator has to be treated as a person employed in connection with the operation of the said vehicle. This was because the expression "employed.........................in connection with the operation" [40] of the vehicle cannot be construed to be confined to its actual mechanical operation. It extends to other activities connected with it. The emphasis appears to be on the factum of employment, which has to be in connection with the operation or maintenance of a vehicle [41].

A traffic controller had to see that the bus arrived at and departed from the bus-stand at the proper time. He was to count the number of passengers in the bus and verify it with the tickets, and make an endorsement on the way-bill and also make a note in the register maintained in the bus-stand. He was also required to report to the Divisional Manager in the event of any breakdown. These functions were not held to be clerical, in spite of the argument to that effect. The words 'in connection' [42] were held quite wide as to include employees not merely operating the vehicle but also in connection with it otherwise. In view of the fact that the traffic controller was expected to report in the event of any breakdown, his duty was connected with maintenance of the vehicle. Similarly his duties were also connected with the loading of the vehicle, as he was to check the number of passengers in each vehicle. Hence it was held, he would come within the meaning of the term 'workmen' [43].

A watch man was expected to preserve a building against unwarranted interferences from unauthorised persons and cattle. He was to keep it clean by sweeping the premises and dusting it. He was thus engaged in the upkeep of the office for the purpose of keeping it in an efficient state. His services were held to be for the maintenance [44] of the office and building and that he was a 'workman' [45].

A person employed by a farmer for crushing sugarcane on a power driven charkhi was held to be a workman', since 'farming' [46] is not confined to cultivation, but would also mean raising of crops, poultry, sale of chicken and eggs and takes in all operations which a farmer necessarily engages in including crushing of sugarcane. [47].

The condition that to be a 'workman', one's employment should not be of a casual nature and that one should not be employed otherwise than for the employer's trade or business, may appear to curtail the broadening concept of 'workman'. But in fact, the curtailing effect is not so serious. This is because only when a person is both casually employed and employed otherwise than for the purposes of the employer's trade or business, he will fall outside the ambit of the definition of 'workman'. But the requirement for the simultaneous assembling of the two conditions for excluding a person from the category of 'workman' makes the concept play round the expression 'trade or business'. Suppose the work of the employer, for the execution of which a person is employed cannot be labelled as 'trade or business', will the person employed by the employer be a 'workman'? It appears he will not be. This lacunae in the law affects adversely domestic servants, who will be helpful if they sustain injury in the course of their employment. The definition of workman' deprives the clerical staff of a business establishment of the benefits under the Workmen's Compensation Act. All persons employed for the purposes of the employer's trade or business, should be considered as his ‘workmen' entitled to the protection of the Act. A widening of the concept of 'workman' under the Workmen's Compensation Act is called for.

___________________________________________________________________

Footnotes:

1. S.2(1)(n) of the Workmen's Compensation Act, 1923 defines a 'workman' to mean "any person (other than a person, whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is --

(i) a railway servant as defined in S.3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of [the Armed Forces of the Union]; and any reference to a workman who has been injured, shall, where the workman is dead, 'include a reference to his dependants or any of them".

2. Short v. J.W. Henderson Ltd., (1946) AC. 24 (H.L.): 1946 62 T.L.R.427.

3. Dharangadhara Chemicals Ltd. v. State of Saurashtra, AIR 1957 S.C.264; (1957) 1 LLJ.477.

4. AIR 1964 Cal.61: (1963) 1 LLJ.593.

5. Chintaman Rao v. State of Madhya Pradesh, AIR 1958 S.C. 388 :(1958) 2 LLJ. 252.

6. State of Kerala v. V.M. Patel (1961) 1 LLJ.549 (S.C).

7. Supra, n.1.

8. Armugham v. Nagammal, AIR 1949 Mad.462.

9. (1974) 3 SCC.498.

10. Supra, n.1.

11. S.3(7) of the Indian Railways Act 1890defines a 'railway servant' as any person employed by a railway administration in connection with the service of a railway.

12. Supra, n.1.

13. See Schedule II to the Workmen's Compensation Act, 1923.

14. See Supra, n.1

15. See Ibid.

16. Pattammal v. Janakirama Kounder, 1975 Lab.I.C.984.

17. Kochappan v. Krishnan, (1987) 2 LLJ. 174 (176) (Ker.), per Kochu Thommen,J.

18. Kochu Velu v. Joseph, 1980 Lab.LC.902 (Ker.).

19. Mahmoodv. Balwant Singh, 1980 Lab.I.C.300 (AIl). The question before the Court was whether a person employed by agriculturists for thrashing wheat by instrument operated by tractor was a 'workman' as per S.2(1)(n) and Schedule II, Clause (xxix). The act of thrashing with the aid of a device worked by means of a tractor driven by mechanical power was ancillary to farming or agriculture making the case fall under clause (xxix). Hence the person employed for the purpose was held to be a "workman'.

20. Patel Engg. Co. Ltd. v. Commr. For W.C. 1978 Lab.I.C. 1279 (1281) (AP.). The point in dispute here was whether workman employed by contractors, availing themselves of the facility of the Government lorry for coming to the workspot, can claim workmen's compensation, if an accident occurs while availing themselves of the facility. The court held that it is not necessary that the workmen concerned should either travel in a conveyance provided by the employer or that it would be obligatory on their part to do so in order to conclude that they were in the course of employment while travelling in that conveyance. The contractors had no lorry belonging to them for carrying the workers employed by them. Hence they used to avail themselves of the Government lorry. This practice was in force for about four years before the accident. It could be inferred from the circumstances that the contractors expected the workers to avail themselves of the facility of the Government lorry for arriving at the workspot. It could therefore, be concluded that the accident arose out of and in the course of employment, entitling the workmen to compensation.

21. Mahmood v. Balwant Singh, Op. Cit.,

22. Madanlal v. Mangali, AIR 1961 Raj. 45 (47).

23. Ladi Jagannadham v. Smt. Padmabati Baurani, AIR 1962 Orissa 7 (8).

24. The Secretary, Madras Gymkhana Club Employees' Union v. Management, AIR 1968 SC.554 (562,563) : 1968 Lab.LC. 547.

25. S. Mohan Lai v. R. Kondiah, AIR 1979 S.C 1132 (1133): (1979) 2 SCJ. 362.

26. Krishna Kumar v. J. & K. State, AIR 1967 S.C. 1368 (1371): (1967) 2 SCJ. 373.

27. Popatal v. Bai Lakhu, AIR 1952 Sau.72.

28. Madan Lai v. Mangali, Op. cit.

29. Kamala Devi v. Bengal National Textile Mills Ltd. (1975), 2 LLJ. 81, see also Kochappan v. Krishnan, (1987) 2 LLJ. 174 (Ker.) pp. 175-176.

30. Periyakkal v. S.I. Railway, AIR 1935 Mad. 721 (722): Huseinbhai Ahamedbhai Memon v. Mangiben, AIR 1985 (N.O.C) 73 (Guj): 1984 AC.J.701 (705) (DB) (Guj.).

31. Vijay Ram v. Chander Prakash, 1981 Lab. I.C. 359.

32. The Apprentices Act, 1961 is an Act to provide for the regulation and control of training of apprentices and for matters connected therewith.

33. Vide item (l)(d) of the Schedule to the Apprentices Act, 1961, read with S.16 thereof.

34. S.2(2) of the Workmen's Compensation Act, 1923 provides: "The exercise and performance of the powers and duties of a local authority or of any department (acting on behalf of the-Government) shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department".

35. Union of India v. Mohd. Wasi, 1980 Lab. I.C. (NOC) 57 (All.): (1980) 40 Fac. L.R. 17 (All.).

36. K. Narayanan v. Divisional Supdt. Southern Railway 1980 Lab. I.C. 776. The issue to be decided was whether master and servant relationship existed between railway administration and licensed railway porters. The latter being railway servants within S.3(7) of Railways Act, were held to be workmen under S.2(1)(n).

37. S.B. Gurbax Singh v. Dhani Devi, 1981 Lab. I.C. (NOC).

37a. Ibid.

38. Armugam v. Nagammal, Op. cit.

39. Kanpur Mill Mazdoor Union v. Muir Mills Co. Ltd. (1955) 2 LLJ. 537.

40. See Workmen's Compensation Act, 1923, Sch. II, Clause (1).

41. New India Assurance Co. Ltd. v. Smt. Fatmabai, 1982 Lab. I.C. 732.

42  Supra, n.40.

43. Malatibai v. Mysore SRTC, (1968) 2 LLJ.443.

44. See Workmen's Compensation Act, 1923, Sch. II, Clause (viii).

45. Smt. Satiya v. Sub-Divisional Officer, P.W.D. (1974) Lab. I.C. 1516.

On a Contract of Insurance

(Thomas P. Joseph, Advovate, Kottayam)

Insurance is a contract of indemnity whereby, the promisor - called the insurer - undertakes to indemnify the promisee - called the insured - against all sums the later is held liable to pay in respect of risks covered by the policy of insurance. The rights and liabilities of the parties to such a contract has mainly to be decided in accordance with the terms and conditions in the policy of insurance. The provisions of Chapter VIII of the Motor Vehicles Act, 1939, make it obligatory on the part of the owner of a motor vehicle to insure his vehicle against death or bodily injury to third parties. The Certificate of insurance is to be issued in Form A set out in the schedule to the Motor Vehicles (Third party Insurance) Rules, 1946. Chapter VIII of the Act also prescribes the minimum requirements a policy should necessarily contain.

A Division Bench of the Kerala High Court in 'Oriental Insurance Co. Ltd. v. Sivan' reported in 1989 (2) KLT 897 has held that the word 'date of commencement' appearing in form A referred above is synonimous with 'day of commencement' and holding that the word, 'day' means 'the whole or any part of period of 24 hours from midnight to midnight'; has taken the view that even if the policy contains a clause that the risk under it would commence with effect from 11 a.m. on 15-7-1985, the risk would commence from the midnight of 14-7-1985.

True, that Form A contains the words, 'date of commencement' and 'date of expiry'. But there is nothing in the Motor Vehicles Act or the Motor Vehicles (Third -party-Insurance) Rules, which prescribes a minimum period for a contract of insurance. As in the case of ordinary contracts, the parties to a contract of insurance are also free to incorporate in the contract, terms and conditions mutually agreed to by them concerning their respective rights and liabilities, subject of course to the minimum requirements which a policy should have as per the provisions of the Motor Vehicles Act. If so, is it not possible for the contracting parties to specify in the policy of insurance  that the rights and liabilities they have under the policy would commence from a specified time on a particular day? If the view of a Division Bench is accepted, the contracting parties would not be able to do so, even though they wish to do so. This, so far as such specification of time of commencement of risk is not repugnant to any of the provisions of law, will in effect, curtail the rights of the contracting parties. In 'Oriental Insurance Co. Ltd. v. Sivan', the policy did contain a clause that the risk under the policy of insurance would commence with effect from 11 A.M. on 15-7-1985. In this connection, it is useful to refer to a few decisions on the point.

In 'United India Fire & General Insurance Co. Ltd. v. Srinivasan & Others' (reported in 1980 ACJ 413), a Division Bench of the Madras High Court, holding the insurer liable under the policy, in respect of an accident that occurred a few hours before the actual issuance of the policy, said: ".......we are, therefore of the opinion that the appellant, insurance company is liable under the Contract of lnsurance and that it is not possible to accept the contention that the risk in this case has commenced only from the time of issue of the policy of insurance.........". The Supreme Court of India, in a recently reported decision (1990 (1) KLT 817) has also held that the policy taken during any part of the day becomes operative from the commencement of that day. The Supreme Court has also relied on the decision of the Allahabad High Court reported in AIR 1983 All. 87. where again it was not a case where the time of commencement of risk was mentioned in the policy. It has however to be remembered, going through the facts of those cases that the policies in question did not contain any specification concerning the time of commencement of the risk. As such, it was open to the Court to interpret the words 'date of commencement' and hold that the insurer is liable to cover the risk involved in that case.

In 'Jaikishandas v. Chiruthai Ammal and others' (reported in 1984 ACJ 530) where the accident had occurred "at or about 10 a.m. on 30-9-1976", and where also the policy did not contain any specification as to the time of commencement of risk, the Division Bench of the Madras High Court, relying on 1980 ACJ 413, held in para.3 of the Judgment thus: ".........Therefore, we will proceed to consider the legal question on the basis that the proposal form was sent on 30th September, 1976, sometime after 10-30 a.m. and the acceptance was also subsequent to the accident. But, as seen from the original insurance policy produced, which does not mention anything about the time, the period of insurance covered is from 30th September 1976 to 29th September, 1977. Clearly, therefore, the policy shall be deemed to cover from the midnight of 29/30th September, 1976, which will cover the time of accident, also......" (underline supplied). It has to be noted that the Division Bench held so, because the policy had not contained anything about the time from which the risk covered by it commenced. Commenting on similar facts, the Madras High Court in 'Srinivasan v. Rajalakshmi & Others' reported in AIR 1975 Mad. 263, held in para.5 of its Judgment; "...........It is open to the Company to have stated that the contract would be effective from 11a.m. on 6-6-1969 upto 11 a.m. on 6-6-1970, in which case it could certainly escape liability for an accident which had taken place a few hours before the conclusion of the contract..........". In para.6 A of the judgment, the Court again held: ".........It was open to the Insurance Company to have stipulated that the contract would come into force only from 11 a.m. on that day. Instead of doing so, the insurance company has undertaken to cover any risk for the entirety of the year.........".The observations above referred make it clear that it is open to the insurer to specify in the policy of insurance the time from which the risk under it would commence and that in that case, the insurer cannot be held liable with respect to an accident that occurred prior to such time specified in the policy. In short, if the parties to a contract of insurance have chosen to contract between them that the risk under it shall commence from a specified time on a particular day, there is no real scope for entering into an interpretation of the Form of the certificate and then hold that the policy would be effective not merely from the time specified, but from the previous midnight of that day. This is so because, it is not for courts to interpret and make a new contract for the parties which they might not even have thought of. The Supreme Court in "General lnsurance Society Ltd. v. Chandmull Jain" (AIR 1966 SC 1644) said thus:.............In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves........The incipient terms and conditions of the contract later merge in the policy and the terms and conditions become express.......". The view adopted may create anomalies also. A contract of insurance requires utmost good faith from the contracting parties. Assume a situation where immediately after an accident, the owner, whether or not aware of the accident - and probably even before a criminal case is registered, concerning the accident -- gets his vehicle insured and the insurer on its part specifies the time from which the risk covered under the policy is to commence which is after the time of accident, should in that case also the insurer be held liable? When the policy contains the time of commencement of risk, the words "effective date of commencement" used in 'Form A' can only mean the effective time from which the risk covered under the policy is to commence. The shorter Oxford English Dictionary (Vol.1) defines the word, 'date' thus: "1. The specification of time (and often place) of execution of a writing or inscription, affixed to it: 2. The precise time at which anything takes place or is to take place". In Venkata Ramaiya's 'Law Lexicon', 2nd Edn., Vol.1, defining word 'day', it is thus stated: "The term 'day' is used in more senses than one. A day is strictly the period of time which begins with one midnight and ends with the next. It may also denote any period of 24 hours and it may denote the period of time between sunrise and sunset. (Halsbury's Laws of England, 3rd Edn., Vol. 37 at P.84)". The above decisions, it appears, were not brought to the notice of the Division Bench, while deciding "Oriental Insurance Co. Ltd. v. Sivan'. The words, "Effective date of commencement....." in form A does not, therefore, in any way derogate from the intention of the parties to a contract of insurance, as expressed in the policy, specifying the time of commencement of risk covered under the policy. The correctness of the decision in Sivan's case was challenged in "United India Insurance Co. Ltd. v. Gopinathan" (reported in 1990 (1) KLT 713) also on the ground that the interpretation of the Division Bench in "Sivan's case' would deprive the vehicle owners of the incentive to insure their vehicles against third party risks. The Division Bench (see para.4 of 1990 (1) KLT 713) though was of the view that the argument required consideration, did not refer those cases to a larger bench as they could be disposed of without that point. A decision by a larger bench, in the circumstances, would be useful to settle the controversy.

Note on 'Editor's Note' (1990 (1) KLT 903)

(Thomas P. Joseph, Advocate, Kottayam)

The Editor of the Kerala Law Times, while reporting the decision of the Supreme Court in 'Unni v. Nirmala Industries' (reported in 1990(1) KLT 903) has made a note that in the light of the decision of the Supreme Court, the decision of the Kerala High Court reported in 1990(1) KLT 596 is not good law. The Supreme Court, in the reported decision has held that the time for making the deposit for setting aside the sale at the instance of the judgment debtor, is 30 days from the date of sale as provided under Order 21 Rule 92(2) of the Code of Civil Procedure, though the time limit for making such an application is 60 days in view of Article 127 of the Limitation Act, 1963, as amended by C.P.C. (Amendment) Act 1976 (104 of 1976). The Division Bench decision of the Kerala High Court-1990(1) KLT 596-- is to the effect that the deposit made after 30 days but within 60 days of the sale is valid and that the Amendment to Rule 92(2) is retrospective. The editor of the KLT says that in the light of the Supreme Court decision 1990 (1) KLT 596 is not good law.

A close study of the above decisions as well as the concerned provisions would show that the editor's note is incorrect. The decision in 1990 (1) KLT 596 is not at all affected by the decision of the Supreme Court.

It has to be noted that the decision of the Supreme Court was made on an appeal that arose from the judgment of the Madras High Court (reported in 1987 (2) MLJ 3V The Supreme Court was considering the provisions of Article 127 of the Limitation Act, 1963, as amended by Act 104 of 1976 (whereby the period of "Thirty days" prescribed for making application to set aside the sale including an application by the J.D. was substituted by the period of "Sixty days".) and Order 21 Rule 92(2), CPC, amended by the High Court of Madras. The time provided by the said Rule as applicable to the High Court of Madras was 'thirty days' from the date of sale. Construing the provisions, the Supreme Court has held -rejecting the argument that the two provision are inconsistent as the two provisions prescribe different periods of limitation -- that there is no inconsistency between the two provisions, and that since the legislative intent is clear from the explicit and unambiguous words, there is little scope for any interpretation. The Supreme Court has also given its approval to the decision reported in AIR 1982 Ker. 126.

The time limit for deposit of the amount in the case of an application under Rule 89, as far as we are concerned, is 60 days from the date of sale, in view of the Kerala Amendment to Order 21 Rule 92(2) (Amendment dated 8.10.1987 and published Kerala Gazette No.6 dated 9.2.1988). The amendment was made to make the time for deposit, corresponding to the time for making the application under Art.127 of the Limitation Act (by the amendment made to that article as per Act 104 of 1976). In 1990 (1) KLT 596, the Kerala High Court was considering effect of the Kerala Amendment to Rule 92 (2). The Court held that the amendment made is only declaratory and therefore the same would take effect retrospectively. In holding so, the Court also held that AIR 1982 Ker. 126 (which has been approved by the Supreme Court in 1990 (1) KLT 903) is not good law. It has however to be noted that the decision in AIR 1982 Ker. 126 related to the unamended provision in Rule 92(2) which provided for 'Thirty days time for deposit. The Court also noticed (See para.1 of AIR 1982 Ker. 126) that "it is a very clear case of omission on the part of the Legislature to notice that a period corresponding to the period specified in Article 127 had to be stipulated as a period within which deposit is to be made in the provision in Order 21, Rule 92(2) of the Code......" As the function of the Court was to interpret law as it is made, the Court held that the time for deposit was 'thirty days'. The Supreme Court has approved the said decision because, in the case it was deciding also, the time for deposit was only thirty days as provided under Rule 92(2). In other words, the Supreme Court was not at all considering the Kerala Amendment to Rule 92(2) of the Code and whether the said amendment is retrospective.

As far as the provisions of Rule 92(2) of the Code as amended by C.P.C. Amendment dated 8.10.87 as applicable to Kerala is concerned, the decision in 1990 (1) KLT596 stands good and there is no conflict with the decision of the Supreme Court reported in 1990 (1) KLT 903.