E I RY CO Vs. SHEWBUX ROY GHANSHYAMDAS

JUDGEMENT

(1.) This appeal has arisen out of a suit in which the plaintiffs Shew Bux Roy Ghaneshyamdas claimed damages for non delivery of 17 tins of ghee out of a consignment of 104 tins dispatched from Daltongunge by Luchmi Narain Mahadeo Lal on 4 February 1922 to be delivered to the plaintiffs are Barakar. The consignment was covered by a risk-note in Form B. The trial Court dismissed the suit. That decision was reversed and the suit was decreed in favour of the plaintiffs by the Subordinate Judge on appeal. The defendant the E.I. Ry. Co. and the Secretary of State for India in Council have preferred this appeal.

(2.) The facts as found by the trial Court and as far as they are necessary to be stated are these : A general strike of the railway servants, mostly menials, commenced on 15 February and work on the line was at a dead-stop. The van containing the consignment arrived at Dhanbad on 12 February and was left in charge of a choukidar at the goods yard to be taken along with other vans to the goods shed. The goods yard is about three miles off the goods shed. The van was next noticed at the goods shed on 16 February the door being ajar and the seal broken. The contents feeing examined 11 tins were found missing. The door was then sealed, but on 18 February the door was again found open and 6 more tins were found short. Daring all this time the work of the railway was in a paralyzed state on account of the general strike. These findings of fact have not been reversed by 4he Subordinate Judge. The Subordinate Judge, however, has recorded two findings on which he has rested his decision. They are that the 17 tins of ghee were Sooted by the strikers at Dhanbad partly on 16 and partly on 18 February, that the strike was an unforeseen event and, therefore, by reason of the proviso mentioned in the risk-note was not within the meaning of the words "wilful neglect," as mentioned in the exception provided by the risk-note. I confess I find it somewhat difficult to follow what the learned Subordinate Judge meant when from these two findings he concluded as follows : "So the defendants are liable, if there has been theft by railway servants." Beading his Judgment as a whole, however, it seems to me fairly plain that he has proceeded of the view that the defendants are not protected by the risk-note as the case comes within the exception mentioned in it, and because the tins were stolen or looted by the servants of the railway, at he defendants are liable.

(3.) The decision of the learned Subordinate Judge has been challenged before us upon several grounds, some of which may be disposed of quite soon. It has been argued that his finding that the tins were looted by railway servants is unsupportable as an inference deducible from the materials that are on the record or the facts that have been found. This argument I may say is not altogether without substance, and were I asked to come to my own conclusion on the point I would perhaps find it extremely difficult to arrive at the same conclusion as the learned Subordinate Judge. On a second appeal, however, we are in quite a different position, as it is not possible for us to say that the finding is based on no materials. It has also been argued that the strikers can-not be regarded as servants of the railway and in support of this position reliance has been placed upon the case of G.I.P. Ry. Co. V/s. Gurdayal Badaridas A.I.R. 1927 Pat. 337. With all respect to the learned Judges of the Patna High Court who decided that case I am unable to agree in all that has been said therein. I am of opinion that the mere proclamation of a strike does not terminate the relationship of master and servant and make the servant lose his character as a servant. There may of course be additional circumstances consequent on a strike which may determine that relationship "Strike" as pointed out by Lord James of Hereford in Denaby and Gadeby Main Collieries Ltd. v Yorkshire Miners Association [1906] A.C. 384, is a word of an artificial character, and does not represent any legal definition or description. It is an agreement between persons who are working for a particular employer not to continue working for him (per Kay, Lord Justice", in Lyons and Sons V/s. Wilkins [1896] 1 Ch. 811. Cessation of work does not necessarily mean termination of the relationship as master and servant, but other circumstances attendant or concomitant are necessary to put an end to that relationship. When we come to examine the circumstances we see that the findings of the Subordinate Judge are that the strikers were living in the railway quarters, they had not given up their1 appointments, but were pressing for higher wages and that they had not in fact been discharged, but notices had been served on them to resume work failing which they were to be discharged. Between strikers such as these and the Railway Administration the relationship had not terminated, though after one has struck work, it may be important to consider, whether one can be regarded as acting in the course or within the scope of his employment a question which might arise in cases of this description.