KHATIJA ABDULLA IBRAHIM TAI SMT Vs. NATIONAL TOBACCO COMPANY OF INDIA LIMITED CALCUTTA

JUDGEMENT

(1.) This appeal arises out of an application made by one Bai Khatija Abdullah Ibrahim Tai and her seven children as dependants of deceased Abdullah Ibrahim Tai who died in an accident on 19th October 1962 near Sanand in Ahmedabad rural district. Deceased Abdullah Ibrahim Tai was appointed as a salesman or propagandist by the National Tobacco Company of India Limited Calcutta as per its letter of appointment dated 25th May 1957 on a basic monthly salary of Rs. 56/plus dearness allowance of Rs. 20.00. P. M. As per the terms of the appointment he was to work as salesman or propagandist for expanding the sales of the cigarettes manufactured by the respondent company. The Head Office of he respondent company is situate at Calcutta. According to the applicants Abdullah Ibrahim Tai died in a motor accident while traveling in the jeep belonging to the respondent company on 19th October 1962. According to the appellants as the deceased Tai was an employee of the company and died in an accident arising out of and in the course of his employment he was entitled to receive compensation according to the provisions of the Workmen's Compensation Act 1923 Before filing the application for recovering compensation on 19th August 1963 the appellants served a notice on 8th November 1962. In the course of correspondence the respondent company agreed to pay only Rs. 2000/by way of compensation and the amount standing to the credit of deceased Tai in the provident fund account reserving the right to make certain deductions. The appellants having been dissatisfied with the offer made by the company filed application before the Commissioner for Workmen's Compensation for recovering compensation in the amount of Rs. 7000.00. The respondent company filed what is styled as a preliminary statement which is as vague as vagueness could be suggesting subsequently that deceased Tai was not an employee within the meaning of the Bombay Shops and Establishments Act 1948 (hereinafter referred to as the Act) and that whatever business organisation the respondent company has set up in Ahmedabad it is not a commercial establishment within the meaning of the Act and therefore sec. 38A could not be attracted and therefore the application for compensation could not be maintained. When evidence was being recorded in the case the learned advocate appearing for the respondent company took an objection that until the preliminary contention as to the maintainability of the application is not decided the appellants should not be allowed to lead evidence on the merits of the case. The learned Commissioner overruled the objection and proceeded with recording evidence. The order of the learned Commissioner overruling the objection was challenged in Civil Revision Application No 39G of 1964 in this Court. While rejecting the revision application our learned brother Divan J. Observed that under sec. 38A of the Act the provisions of the Workmen's Compensation Act and the Rules made from time to time thereunder apply mutates mutandis to employees (other than those who are in receipt of monthly wages exceeding four hundred rupees) of an establishment to which the Bombay Shops and Establishment Act applies and in which at least five employees are employed in the date of the accident as if they were workmen within the meaning of the Workmen's Compensation Act Our learned brother suggested that in view of the aforementioned provision the Commissioner will have to examine whether the conditions laid down in the Workmen's Compensation Act are satisfied or not. Accordingly when the matter went back the parties led their evidence. The learned Commissioner framed two issues. First issue was whether the applicants prove that the provisions of the Act applied to the deceased by virtue of sec. 38A of the Bombay Shops and Establishments Act; and second issue was what compensation was payable to the dependants of the deceased. The learned Commissioner observed that in the definition of 4commercial establishment it is implicit that there must be some place premises or location where the establishment is located and in which some employees must be working; and that the respondent company has no such place or premises from where its business organisation is functioning and therefore the respondent company has not set up any commercial establishment in this State and therefore deceased was not an employee working in a commercial establishment in this State and was therefore not an employee within the meaning of the Act and application under sec. 38A for recovering compensation would not be maintainable. On the second issue the learned Commissioner held that looking to the fact that the monthly salary of deceased Tai was Rs. 76/only the applicants would be entitled to compensation in the amount of Rs. 2400/only; but that finding was merely incidental. We would point out that the learned Commissioner has committed serious error in recording the finding on the second issue ignoring the factual aspect of the matter. As the learned Commissioner dismissed the application consistent with the finding on the first issue the appellants preferred First Appeal under sec. 30 of the Workmen's Compensation Act to this Court being First Appeal No. 84 of 1967. This appeal came up for hearing before our learned brother V. R. Shah J. On behalf of the respondent same contention was raised namely that as the respondent company has not set up commercial establishment in this State deceased Tai was not a workman within the meaning of the word in the Workmen's Compensation Act or an employee within the meaning of the Bombay Shops and Establishments Act and therefore the application made by the appellants would not be maintainable. This contention found favour with our learned brother and accordingly the appeal preferred by the appellants was dismissed. The appellants thereupon preferred this appeal under clause 15 of the Letters Patent.

(2.) The only relevant question that falls to be determined in this case it whether deceased Tai was an employee of the respondent company and the respondent company has set up a commercial establishment in this State within the meaning of the words employee and commercial establishment in the Bombay Shops and Establishments Act. That would immediately raise the question as to the true construction of the definition of the expression commercial establishment; and after finding out the meaning of the expression commercial establishment to determine whether the respondent company has any commercial establishment in this State. The facts which are not in dispute lie within a narrow compass. Deceased Tai was employed by the respondent company whose head office is at Calcutta as salesman or a propagandist on a monthly salary of Rs. 56/plus Dearness Allowance at Rs. 20/and traveling allowance at certain rate in the year 1957. The deceased was working at Rajkot and was required to tour certain places in the interior. At the time of his death salary of deceased Tai was Rs. 62/per month plus Rs. 20/D. A. and other allowances. One Mr. R. R. Chopra who has given evidence on behalf of the respondent company has given his designation as circle in charge operating from Ahmedabad and he has stated that there were 15 salesmen like deceased Tai working under him and operating in different districts in this State. On these undisputed facts the question that arises for our consideration is whether there is any commercial establishment of the respondent company within this State within the meaning of that expression in the Act.

(3.) At the outset we should make it distinctly clear that in fact the respondent has not specifically raised the contention now urged by it and therefore it ought not to have permitted to raise the contention at any stage of this litigation. In the written statement. the contention taken was that the application was not legally maintainable and that the deceased was not company's workman as per the provisions of the Workmen's Compensation Act and therefore application is not maintainable. On these averments it was contended that the Commissioner for Workmen's Compensation has no jurisdiction to entertain the petition. From these vague averments it is now sought to be contended that there is no commercial establishment of the company in this State. In fact till the matter was argued before our learned brother Divan J. no contention was taken on behalf of the respondent that the respondent company has not set up any commercial establishment in this State. Probably the clue to take up this contention was for the first time taken from the judgment of our learned brother and if such be the state of pleadings in fairness to the applicants the learned Commissioner ought not to have permitted the respondent to agitate this contention at the initial stage but once a direction was given that this aspect may be inquired into the contention was permitted to be taken. As the contention has been agitated both before the learned Commissioner and before our learned brother V. R. Shah J. it would not be proper to overrule the contention on the technical ground that it was not specifically pleaded in the written statement.