BRITISH INDIA STEAM NAVIGATION COMPANY Vs. MUSSMT SAIDUN

JUDGEMENT

(1.) This is an appeal from a judgment and decree on the Original Side of this Court for Rs. 4,757/13 as compensation payable by the Defendant to the Plaintiff under Section 25F(b) of the Industrial Disputes Act.

(2.) The Plaintiff was a cooli sardar who personally worked and arranged for a number of porters or coolies for loading and/or unloading goods from steamers arriving at the port of Calcutta under the instructions of the Defendant. His case as laid in the plaint is that since August 1918, until the termination of his employment by way of retrenchment with effect from August 1, 1955, within the meaning of the Industrial Disputes Act he was a workman within the meaning of the said Act in continuous service under the Defendant at rates of pay which varied from time to time but was Rs. 9/1 as per day at the time of the said termination. His grievance is that he was retrenched from his service without being given one month's notice in writing within the meaning of Section 25F(a) of the said Act or any notice at all and without any payment in lieu of such notice as referred to in Section 25F(a) and further without payment of any retrenchment gratuity within the meaning of Section 25F(b), or any payment at all and without any notice on the appropriate Government within the meaning of Section 25F(c). He claimed that the retrenchment of his employment or service was invalid and prayed for a declaration that he was still in the service of the Defendant. His case further was that if this Court should hold that the retrenchment was valid the Court should find that the Defendant was liable to pay him retrenchment gratuity under Section 25F(b) of the said Act at the rate of 15 days average pay for 37 years from August 1, 1918 to July 31, 1955, at the rate of Rs. 135/15 as for each year totalling Rs. 5,029/11 as.

(3.) The suit was filed on May 1, 1956. The Defendant British India Steam Navigation Company Limited filed its written statement on August 21, 1956. The Defendant's case is that the Plaintiff was employed by it as an independent and casual contractor for the supply of a gang of men comprising mate-khamalis-coolies whenever called upon to do so for work on or in connection with loading and unloading of any of the steamers of the Defendant and that the Plaintiff has been so employed off and on from May 1922 on a casual basis whenever occasion arose without any regularity. In the alternative the Defendant stated that the Plaintiff was employed as a casual employee for a particular ship or for a given time as and when necessity arose and at the sole discretion of the Defendant, the latter being at no time under any obligation to provide work for the Plaintiff. It was stated further that during the early period of the last World War the Plaintiff was not available for employment nor was he given any employment by the Defendant. In para. 5 of the written statement full particulars of the Plaintiff's employment from the year 1942 to 1956 are set out. According to this the highest number of days in a particular year during which the Plaintiff was employed was 148 in 1943, there being no employment in 1944 and only two days employment in 1945. Again in 1949 it was 88 days, in 1950 it was 65 days and 61 days in 1953. In 1946 it was 142 days and the number of days during which the Plaintiff was employed being above 100 days in the years 1947, 1948, 1951 and 1952. In para. 6 of the written statement it is stated that with effect from September 25, 1953 as a result of the introduction of the Calcutta Dock Workers (Regulations of Employment) Scheme, 1951, the services of all Dock labour including the services of the Plaintiff were transferred to and taken over by the Calcutta Dock Labour Board. The Defendant denied that there had been any wrongful termination of the Plaintiff's service and stated that the Plaintiff was employed under the Dock Labour Board and that in any event it ceased to be the employer of the Plaintiff with effect from September 25, 1953. The claim to retrenchment gratuity was also disputed. The issues settled at the hearing of the suit were as follows: