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.

Order for Maintenance u/S. 125 Cr. P.C

(P. Rajan, Advocate, Tellicherry)

Courts allowing applications under Section 125 of the Code of Criminal Procedure of wives, children and parents, could direct the amount payable by the opposite party either from the date of the order or from the date of application. Monthly allowance from the date of presentation of the petition had been the rule considering the object behind Chapter IX of the Code. By making radical changes to S.488 of the old Code, S.125 Cr. P.C. has been introduced as a speedy measure of social justice to protect the cause and interests of destitute who are the neglected class. It has the seal of constitutional empathy; so also the express consent of the apex court for open exhibition of judicial sympathy to protect the weaker group. Supreme Court even went to the extent of saying that Courts could even be choosy and selective while arriving at judicial conclusions under the above section in order to serve the purpose of the derelicts (AIR 1978 S.C. 1807).

Trial courts have a free hand in giving direction at the time of disposal of petitions, to pay the allowance from the date of application. Often petitions u/S.125 Cr. P.C. takes years for the final verdict, especially if the opposite party decides to take time-consuming contentions or approaches higher Courts with different requests for causing maximum delay and even in such cases rarely courts resort to S.126(3) of the Code to award costs. Hence claimant had sigh of relief by getting the allowance from the date of institution of the petition. This view has been fortified further by His Lordship Bhat's decision reported in 1980 KLT 969.

But later decision of our High Court reported in 1989 (2) KLT 503, even though reaffirms judicial discretion vested with trial courts, says' ordinarily the allowance shall be from the date of the order'. It is pertinent to note even now Chapter IX needs timely changes in order to achieve desired results. Rs.500/- is the maximum one could get per mensem whatever may be his or her need. Affluence of the husband coupled with claimant's pressing needs, educational or medical expenses, house rent etc. are no reasons since maximum is fixed by the Statute. Luxury is not the intention of the law makers - so goes the reply to this. Process is really cumbersome to execute the order duly passed for realisation of the amount, even though procedure contemplated is just like levying of fine as contemplated u/S.421 Cr. P.C. In spite of express provision, pendency of execution petitions is on its escalation. Our High Court was constrained to exhibit its displeasure considering the sad state of affairs relating to pendency of realisation petitions and gave its worth-considering opinions for insertion in the Section. (1980 (1) KLT 654). Then only realisation of the arrears could be made at the earliest.

Supreme Court in AIR 1986 S.C. 984 held that to deserving parties, interim maintenance even could be granted u/S.125 Cr. P.C. So, in short, it goes without saying that Statute, as it stands, and judicial pronouncements which are plethora, raise the voice to protect the interests of the neglected class who come within the purview of S.125 Cr. P.C. But now the Courts, even Sessions Courts exercising revisional powers, are tempted to follow 1989 (2) KLT 503 and direct payment from the date of the order. This being the later decision of the Kerala High Court so far, second thought could not be made by the lower courts even if interests of the destitutes are to be protected in ordinary cases. Rarely, as His Lordship has observed, maintenance could be given from the date of the petition. It is more desirable to pass the award from the date of the application ordinarily; just contra in exceptional cases if the contesting side places materials to strengthen that. Larger Benches' verdict alone could resolve the issue to achieve finality.

Maintenance on Attaining Majority

(S.A. Karim, M. Com., LL.B., Advocate, Thiruvananthapuram)

Section 125 of the Criminal Procedure Code, 1973, speaks about order for maintenance of wives, children and parents. Sub-section (1)(c) deals with maintenance to major child and unmarried daughter, who is unable to maintain oneself. The subsection attracts only if the major child has physical or mental abnormality or injury unable to maintain oneself. The unmarried daughter is an exception. The statutory expression of S.125(1)(c) is "his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of physical or mental abnormality or injury unable to maintain itself. The old code does not contain any provision equivalent to S.125(1)(c).

There cannot be any difference of opinion about the meaning of physical or mental abnormality in sub-section (1)(c). The word 'injury' contained in the sub-section has been interpreted by His Lordship Justice Arunachalam of Madras High Court in T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana reported in 1989 Criminal Law Journal. According to the learned Judge, the word "injury" in S. 125(1) (c) is the physical or mental abnormality occasioned after attaining majority. With all humility, the interpretation of the learned Judge seems out of place. If the intention of the legislature was as reported, the expression of physical or mental abnormality would have been sufficient with any word that denotes future incident.

As per the Chambers Twentieth Century Dictionary, injure means to harm, to damage, to hurt and so on. Injury is that which injures. The plain dictionary meaning does not agree with the learned Judge. S.44 of Indian Penal Code defines the word 'injury'. It has no relevance in the maintenance proceedings. Therefore, the word 'injury' assumes special significance in S.125(1)(c).

The word "injury" cannot be interpreted devoid of the object of maintenance provisions. The object is to protect wives, helpless and deserted children and destitute parents and to secure the much needed relief. Such unfortunates shall not be tempted to commit crime or to tempt others to commit crime and as such prevent vagrancy and destitution. To bring them up as useful and better citizens, the Government interferes and forces the persons who are bound to protect.

I have a typical case in hand. An unmarried college going girl attained majority. Her father, a well placed person, divorced her mother years back. The girl has been residing with the mother. She has no source of income. Her mother finds it difficult to make both ends meet. If her well placed father refuses to maintain the girl on the plea of attaining majority, she will be nowhere in life and the solemn ideals of maintenance provisions will be defeated. The girl is not responsible for the stated contingencies. It is the creation of the society and the girl is the victim. In the instant case, her condition is nothing but 'injury' inflicted by the Society. Therefore, her plight is due to social injury. This may be the injury stated in sub-section (1)(c) of S.125 of the Code. It is the basic principle when a statute or a statutory expression is interpreted, the purpose of that piece of legislation deserves utmost consideration.

The Differed Woes

(T.M. Rajasekharan, Advocate, Calicut)

Lawyer I am, tired by evening

More by the ordeal of convincing

The Judge, than the friend opposing.

Sat on the chair, no time for relaxing

For the clients wait for briefing

With their woes baffling.

Cry, my wife and children aloud,

"Throw Your records around

And come to the beach for a round".

How charming my better half was

With promises on her playful eyes

Years ago, when rang the wedding bells.

Music to the ears, the kids' first sounds,

The young wife learning mother's rounds

While I probed the practising grounds.

Choice to the bench I declined

'Cause it is one for the dejected

And life's challenges rejected.

Bring I home amounts plentiful,

Loose I home's charms bountiful,

Immersed in stories woeful.

Burn I the oil at midnight

For the judgments I can't digest

The wordings therein disgust.

Dawn I wake up and prepare

For you can't seek to repair

A bad pleading in despair.

Illness and Ill health I brave

For you can't avail leave

On grounds flimsy, feint or naive.

Donations big and small,

Collections galore full,

Never a moment dull.

Taxmen, they don't leave my door

For tax at source they adore

Than truthful disclose bear.

Bad or wrong comments I forebear

For 'am not a judge but a lawyer

Of a class not mediocre.

Clamour my household for an hour

Of joy, freedom and leisure

That I can't afford as a lawyer.