British India Steam Navigation Company vs Mussmt. Saidun

Mitter, J.—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 u/s 25F(b) of the Industrial Disputes Act.

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 u/s 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.

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:

(1) Was the Plaintiff, at all material times, a workman under the Defendant company within the meaning of the Industrial Disputes Act?

(2) Was the Plaintiff''s employment continuous within the meaning, of the Act?

(3) Was the Plaintiff retrenched as alleged or at all?

(4) Were the Plaintiff''s services transferred to or taken over by the Dock Labour Board as alleged in the written statement? If so, what is the effect thereof?

(5) To what relief, if any, is the Plaintiff entitled?

The learned trial Judge found that the Plaintiff''s employment Was continuous within the meaning of the Industrial Disputes Act, that he was retrenched by the Defendant on October 26, 1953 and as such he was entitled to retrenchment gratuity for the period of his service, namely 35 years and three months calculated on the basis of the commencement on August 18, 1918.

Before dealing with the evidence adduced, oral and documentary, it will be useful to take a note of the provisions of the Industrial Disputes Act relevant to the Plaintiff''s claim.

u/s 2(ccc) of the Act "continuous service" means uninterrupted service and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock out or a cessation of work which is not due to any fault on the part of the workman.

u/s 2(kkk) "lay-off" means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.

Explanation: Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid off for that day within the meaning of this clause;

Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid off only for one half of that day;

Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid off for the second half of the shift for the day and shall be entitled to full basic wages and dear-ness allowance for that period of the day.

u/s 2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(c) termination of the service of a workman on the ground of continued ill health.

Section 25F provides as follows:

No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until

(a) the workman has been given one month''s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service:

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days'' average pay for every completed year of service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government.

Continuous service for the purpose of Section 25F has a special significance as will appear from Section 25B which provides as follows:

For the purposes of Sections 25C and 25F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.

Explanation: In computing the number of days on which a workman has actually worked in an industry, the days on which

(a) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, (XX of 1946) or under this Act or under any other law applicable to the industrial establishment the largest number of days during which he has been so laid off being taken into account for the purposes of this clause;

(b) he has been on leave with full wages, earned in the previous year; and

(c) in the case of a, female she has been on maternity leave; so however that the total period of much maternity leave shall not exceed twelve weeks, shall be included.

It is not disputed by the Appellant that the Plaintiff was a workman on those days when he was given work but it is the Appellant''s case that judging by the number of days in a year during which he worked as stated in para. 5 of the written statement which was substantiated at, the trial, the Plaintiff''s employment could not be termed as "continuous service" within the meaning of the Act and that the Plaintiff was given work at the discretion of the Defendant as and when it required his service, which in no year came up to 240 days. Although there was no pleading as to "lay off" nor any issue raised thereon the learned trial Judge took the view

that there was not only an implied agreement to provide reasonable work for the Plaintiff and his men but also an implied agreement for Plaintiff and his men being laid off.

Further the learned Judge noted that

according to the Defendant, the Plaintiff was given work for varying days, but never for more than 148 days in a year.

He held that

in the circumstances of the case, the balance of the days required for continuous service may properly be regarded as the days of lay-off.

On this basis he held that the Plaintiff was in continuous service and gave a decree in his favour.

On behalf of the Plaintiff two witnesses were examined besides himself. The first witness was one J. Section Gomes who had been a "gunner-in-charge" under the Defendant for 28 years before he became an employee of Calcutta Dock Labour Board in August 1955. The second witness was another coolie sardar by the name of Ali Hussain and the third was the Plaintiff himself. The sum and substance of the Plaintiff''s evidence was:

(1) He had been working as a coolie sardar since 1918 and worked for the company till 1953 when he along with others were asked to go over to the Calcutta Dock Labour Board for three months. He did this in pursuance of the orders of the Defendant in September 1953. Even thereafter he worked exclusively on the ships of the Defendant for two months.

(2) During the period of his service with the Defendant he had to attend every day. After 1943 he always worked in the night shift. Even when there was no work he as well as the other sardars had to put in their attendance daily.

(3) He had been working for the company for the entire period 1918 to 1953. His evidence as to the number of days in the year he worked is rather unsatisfactory. At one place (Q. No. 18) he said that he worked for 240 days in 1953 but in answer to Q. No. 40 he said it could be more than 61 days and in answer to Q. No. 41 it could be no less than 90 days in the year.

(4) He knew that attendance registers were maintained by the company in respect of the cooli sardars.

(5) He could not work under any other stevedore except B.I.S.N. Company Neither could he go and claim work to be given to him as of right.

(6) In September 1953, all the sardars were sent to the Dock Labour Board and since that time he as well as the ether sardars used to be paid by the said Board. Even for the two months after September 1953 when he worked on the ship of B.I.S.N. Company he received his wages from the Dock Labour Board.

(7) He never received any notice either verbal or in writing terminating his service with the Defendant. This is contra dieted by his own solicitor''s letter, dated December 17, 1955, to Mackinnon Mackenzie and Company, to the effect that the Plaintiff''s service had been terminated as from August 1, 1955.

Ali Hussain Sardar, the second witness on behalf of the Plaintiff was a coolie sardar who too had deposited Rs. 25 as guarantee of good faith for the performance of his duties as also that of his men as recorded in a letter of January 1, 1936. He said that he had to attend the company''s office at Room No., 8 on Strand Road at 3 P.M. and used to get a booking order at 5 P.M. Like the Plaintiff he had to give daily attendance whether he received work or not and had to take leave if he wanted to absent himself. Before 1953 he could not work for anybody else. Like the Plaintiff he worked for two months on the Defendant''s ship even after going over to the Dock Labour Board in 1953. For the days when no work was given no payment was received. He never claimed that work should be given to him. From September 25, 1953, he was working under the Board and receiving payment from the Board although he worked for two months after September 1953 for the company. It was Mr. Hopkins, Cargo Superintendent of the Defendant, who had asked Mr. O''Reilly, another employee of the Defendant, to take all the coolie sardars to the Dock Labour Board and get them registered there. This direction was obeyed and all the sardars, mates, khamalis and roller men were registered with the Board and put their thumb impressions on documents prepared by the Board.

The first witness on behalf of the Plaintiff was one Gomes. His evidence was that he had to supervise the labour employed in loading and unloading of the Defendant''s ships. The Defendant used to act as stevedors and ship''s agents. The Defendant company had about 170 gangs consisting of 9 men in each gang with its sardar at the head doing the work of loading and unloading of ships. He had known the Plaintiff from 1927 to 1955. He did not know the terms of the employment of the sardars by the Defendant but he was aware of the procedure followed in respect of their attendances. The sardars used to go to the cargo department every day to get booking. If they were booked they were sent on to the ships and if they were not booked their attendance was noted. He produced a document which purported to be a daily register of the sardars attendance. It related to the period September 1950 and was written up by O''Reilly, Labour Officer of the Defendant company. He said that the names of the sardars were to be found in the book which according to him was kept in the ordinary course of business. The story of his getting the custody of the document was rather fantastic. He said that he had found it in the dustbin next to the cargo department and as he happened to pass by he had picked it up. This document and another of the kind for November 1950 were marked Exs. D and D(1) even though objected to by counsel for the Defendant. In my opinion, the proper custody of the document was not proved. It was not shown that Gomes had anything to do with the recording of any entries in the document although he might have come across it during his employment with the Defendant. It does not appear that any notice to produce this document was served on the Defendant. The witness Gomes was not competent to speak about the contents of the document because his duty was to supervise the work of the labourers including the cooli sardars but not to record their attendance. He only knew that the documents were in the handwriting of two persons by the name of O''Reilly and Mr. Moitra. The other documents of that kind were also marked exhibits for other purposes. The witness further said that the sardars were entitled to one month''s leave in the year if they worked right throughout the year that they had to take permission from the company to go away and had to produce their deposit receipts when they wanted leave. He did not know whether the sardars were permanent or temporary workers and said that they would receive payments only for the days they worked. The sardars were not free to work for any other stevedores excepting the Defendant. Later on in answer to a question put by the Court he said that the Plaintiff was a temporary man but he could give no reason as to why he had formed this conclusion. He corroborated the testimony of the other witnesses that although the sardars were taken over by the Dock Labour Board sometime in September 1953 they worked exclusively on the Defendant''s ships for about three months from that date. He also said that the sardars were given retrenchment orders in September 1953 and they got themselves registered with the Dock Labour Board under the instructions of Hopkins of the Defendant company. So far as he himself was concerned his service had been terminated by a document dated August 1955. In cross-examination he said that he was not concerned with the columns in the attendance register and it was no part of his duty to see whether the sardars attended the office or not. He knew that after September 1953 the sardars were getting payment from the Dock Labour Board and that they were working under the control of the said Board from September, 1953.

Four witnesses were examined on behalf of the Defendant. They were (1) S.S. Aiyer, Office Superintendent of the Calcutta Dock Labour Board, (2) P.C. Sen, an employee of Mackinnon Mackenzie and Company, (3) B.C. Rakshit, head clerk in the cargo department and (4) P.B. Moitra, a bill checking clerk of the Defendant. Aiyer explained the origin and work of the Calcutta Dock Labour Board. He said that under the scheme of the Board all dock workers who were under the employment of stevedores on the date the scheme came into force, were required to appear before the Board for registration as dock workers. He produced the scheme dated February 10, 1951, which was marked as Ex. 3. He also produced certain circulars issued by the Board. The first of these was, dated September 18, 1953, according to which all the gangs of dock labourers were immediately to be transferred to the Board to give them booking by rotation on the ships of the respective stevedores to start with and that the workers were to be informed that from and after the dates specified in the schedule to the circular allotment of work would be done by the Board alone. The schedule to the circular shows that the date fixed for the transfer of the gangs employed by the Defendant was September 25, 1953. According to the witness every employer registered with the Dock Labour Board had to send in a requisition for the labour required by them. The registered employer had however to pay for the work done to the Board and it was the Board which paid the workmen in its turn. This system came into force from September 25, 1953. Further, he said that the system of stevedores choosing their own men continued down to October 25, 1953. He produced the circular of the Board which purported to show that the Board would commence to give rotational booking to all the gangs registered under the Board from Sunday, October 25, 1953.

The second witness P.C. Sen was called to support the version of Aiyer in some particulars. His testimony was, however, not referred to at the hearing of the appeal and does not seem to be material.

The third witness Rakshit had been working in the cargo department of the Defendant from 1941 to 1951. According to him the company had 198 gangs of men loading and unloading the Defendant''s ships in 1951. These were divided into two batches who used to attend everyday in the office at 5 o''clock for their posting. There was a booking clerk who used to call out the names of the sardars and used to inform the men as to whether they would be employed or not. The person who used to keep attendance register was the witness Moitra working under his supervision. He said that the company had its attendance registers from 1942. He also said that he had seen the records which would go to show that the Plaintiff had been employed by the Defendant in 1922. He referred to para. 5 of the Defendant''s written statement and said that it was he who had compiled the figures from the attendance books of the Defendant. According to him a sardar was bound to attend every day to find out whether work was available or not. It was for the company to allot work to the sardars and no payment was made if work was not allotted. He said that the attendance sheets produced by Gomes were genuine but they were only rough ones maintained by the Defendant, that they could not have been thrown into a dustbin but had been removed from the office. He could not be sure as to whether the sweeper had thrown them away. According to him the Plaintiff had started working in the Dock Labour Board from September 25, 1953, in pursuance of the Board''s circular of September 18, 1953. The rate of payment to the sardars varied from time to time. It was Rs. 5/13 as per day from 1947 to 1951, when it was raised to Rs. 9/1 as, per day. In cross-examination he was shown the attendance book for October 1953 and referred to an entry which purported to show that from October 26, 1953, all stevedoring business of the company had ceased.

Moitra said that he had been working in the Labour Department of the Defendant since 1944. He along with one S.K. Dutta used to write up the attendance register. The system of noting on the register was to put the letter ''I'' against the name when work was given and the letter ''P'' when he was present, but got no work. The letter ''A'' was used against the name when a man was absent. Shown the attendance register from March 1944 to July 1946, he said that it was in his handwriting.

In order to succeed in the suit the Plaintiff had to establish that he was Workman within the meaning of the Industrial Disputes Act for the period during which he claimed retrenchment compensation. He also had to allege and prove that he was in "continuous service" within the meaning of the Act before he could claim the said compensation. The last hurdle which he had to cross was to allege and prove that he was retrenched by his employer. As it was not disputed that the Plaintiff was a workman for the days on which he worked for the Defendant we need not examine issue I in greater detail. It will be sufficient for the Plaintiff to prove that he was in continuous service until the Industrial Disputes Act came into force and that he was retrenched so as to give rise to the cause of action for compensation which became due to him on such retrenchment. To be in "continuous service" he had to prove that he had worked for no less than 240 days in the year. The burden of proof of this might be, discharged by showing that he was a permanent servant of the Defendant and had to render such service as the Defendant wanted to take from him or that although he was not in permanent service, he had been "laid off" within the meaning of the Act so that the number of days during which the "lay-off" was in force could be added to the number of days he actually worked for the Defendant to make up the total of 240 days in the year. Unfortunately for us no issue was raised before the learned trial Judge as to the terms of employment of the Plaintiff under the Defendant--the only relevant issue being whether he was in continuous service of the Defendant. The evidence of the Plaintiff as already summarised above was to the effect that he had to attend at the office of the Defendant everyday in the month but that work was given to him only when it suited the Defendant and that he had no right to claim work to be given to him. The Defendant did maintain an attendance register in which the presence or absence of the cooli sardars were noted down everyday. Payment was, however, to be made only for the days on which the actual loading and unloading of the ships was done by the Plaintiff. The attendance registers of the Defendant company were before the Court and the sum and substance of the evidence as to the attendance of the Defendant at least from the year 1944 to 1953 was as shown in para. 5 of the Defendant''s written statement. This falls far short of 240 days in the year. The document dated May 19, 1922, was relied on by both the parties as the guiding factor in this case. According to the Plaintiff it went to show that he was a permanent employee of the Defendant while according to the latter it constituted only a continuing offer to render service to the Defendant whenever called upon to do so.

The document dated May 19, 1922, runs as follows:

I, Sobrathi agree to serve Messrs. Mackinnon Mackenzie and Company, as cooli sardar and to supply that firm with a gang of men comprising mate-khamalies-coolies whenever called upon to do so for work on, or in connection with any of the British India Steam Navigation Company Ltd. steamers, for, wages in force at the time or at a fixed rate which may be agreed upon by the Managing Agents and ourselves and as a guarantee of good faith for the performance of my duties, as, also that of the men comprising my gang during the period and they are employed by Mackinnon Mackenzie and Company, I deposit Rs. 25 to be placed to my credit with the company and to be refunded to me in full on receiving one month''s notice of my services being no longer required.

I also agree to forfeit the entire Rs. 25, as afore-mentioned paid by me, in the event of my misconducting myself in any way, or in the event of my failing to supply the company with the gang as detailed above at any time when called upon to do so.

In support of the argument that the letter of 1922 was a continuing offer, reliance was placed on a passage in Cheshire and Fifoot''s law of Contract, 6th ed., p. 37 where the learned authors deal with the question of acceptance of tenders so as to constitute a contract. According to Learned Counsel the case bears a close resemblance to that of Great Northern Railway Company v. Whitham (1873) L.R. 9 Com Ple, 16. There the Defendant sent in a tender worded as follows:

I, the undersigned, hereby undertake to supply the Great Northern Railway Company, for 12 months from November 1, 1871 to October 31, 1872, with such quantities of each or any of the several articles named in the attached specification as the company''s store-keeper may order from time to time, at the price set opposite each article respectively and agree to abide by the conditions stated on the other side.

The company''s officer wrote in reply:

I am instructed to inform you that my Directors have accepted your tender, to supply this company at Doncaster Station any quantity they may order during the period ending October 31, 1872, of the descriptions of iron mentioned on the in closed list, at the prices specified therein. The terms of the contract must be strictly adhered to.

The Defendant did not deliver the goods and an action was brought for refusal to deliver them. The objection was that the contract was unilateral. Both the learned Judges Keating and Brett, JJ., held that the Defendant was obliged to supply the goods. Brett, J. said,

So, here, the company having given the Defendant an order at his request, his acceptance of the order would bind them.

It was argued that the document of May 1922, was nothing but an offer on the part of the Plaintiff to supply the Defendant with a gang of men whenever called upon to do so and that a contract would only result on the acceptance of the Defendant by asking the Plaintiff to work for it on a particular day. Our attention was also drawn to Article 121 of Halsbury''s Laws of England, vol. VIII, 3rd. ed. p. 70 which reads:

a tender for work and labour, even though in the form of an estimate, amounts to an offer, which, when accepted, constitutes a binding contract. An advertisement inviting tenders for the supply of goods extending over a period of time is not an offer, but an invitation for offers. A tender for the supply of such goods as may be required no quantity being specified, is not an offer which may be accepted generally so as to form a binding contract, but is a continuing offer, which is accepted from time to time whenever an order is given for any of the goods specified in the tender. An acceptance of such a tender merely, amounts to an intimation that the offer will be considered to remain open during the period specified and that it will be accepted from time to time by orders for specified quantities and does not bind either party unless and until such orders are given.

Our attention was also drawn to the case of Percival Lim v. London County Council Asylums and Mental Deficiency Committee (1918) 87 L.B. K.B. 677. There the Plaintiffs had made a tender to the Defendant undertaking and agreeing on the acceptance of the tender by the committee if and to the extent the same shall be ordered by the committee and in accordance with the conditions of the contract stated and in any quantity and for the period mentioned, to supply all or any of the goods named in the schedule annexed, of the respective qualities or sorts and at the respective rates or prices specified in the schedule. Condition 3 showed that the quantities stated in the schedule were those which were estimated as the probable requirements for the period of the contract, but the committee might, at their option require the supply and delivery under any item in the schedule of any quantity greater than the quantity specified of such item. There was an arbitration clause providing for the settlement of disputes. The contractors had tendered for all the items amounting altogether to about �10,000 for the period of five months. The committee accepted the said tender in writing. The committee, however, did not in fact order the amounts specified as to some of the items and obtained some items from other source. The Plaintiff made a claim which went to arbitration that the asylum committee did not in fact, as to some of the items, order the amounts specified in the schedule. The arbitrator made an award in favour of the Plaintiff. This was set aside by Atkin, J. who was of the view that the contract was not a firm contract to take the whole of the goods which were required. According to him

these tenders are very often in a form under which the purchasing body is not bound to give the tenderer any order at all in other words, the contractor offers to supply goods at a price and if the purchasing body chooses to give him an order for goods during the stipulated time, then he is under ah obligation to supply the goods in accordance with the order; but apart from that nobody is bound.

The learned Judge referred to the decision in Great Northern Railway v. Whitham (Supra) and said that that case afforded an instance of the kind of contract being entered into by business people and that sometimes it so happened that they were disappointed but that was a business risk which a person who signed a contract in express language must put up with

On behalf of the Respondent our attention was drawn to a passage in Cheshire and Fifoot''s Law of Contract, 6th ed., p. 34, reading,

the task of the Courts is to extract the intention of the parties both from the terms of their correspondence and from the circumstances which surround and follow it and the question of interpretation may thus be stated: Is the preparation of a further document a condition precedent to the creation of a contract or is it an incident in the performance of an already binding obligation?

Reliance was placed by counsel for the Respondent on the case of Devonald v. Rosser and Sons (1906) 2 K.B. 728. There the Plaintiff was employed as a roller man at the Defendants'' tin plate works. He had been in their regular employment for thirteen years and was employed upon the terms of certain rules, which were applicable to workmen in all departments of the Defendants'' works. Rule 1 provided that no person regularly employed shall quit or be discharged without giving or receiving twenty-eight days'' notice in writing, such notice to be given on the first Monday of any calendar month before 12 o''clock at noon. Rule 11 provided that every workman in the various departments of the works will when required by the manager or agent perform such duties as may be deemed necessary in case of emergency other than the special work he may be engaged in. The Plaintiff was paid by piece work at so much per box of 112 tin plates. In July, 1903, the Defendants found that owing to the state of the trade they could not keep their works running at a profit and on July 20, they closed the works. On August 3, 1903, they gave the Plaintiff notice under Rule 1 to terminate his employment on August 31. The action was brought to recover damages for breach of an implied agreement by the Defendants to provide the Plaintiff with work during the six weeks between July 20 and August 31. The Defendants, by way of defence, contended as matter of law that as the Plaintiff was employed on the terms of being paid for piece work there was no obligation upon them to find him work if they had none for him to do and in the alternative, they contended that it was a custom of the tin plate trade that the masters should be at liberty to close their works without notice in the event of lack of orders or specifications for orders at remunerative prices. Jelf, J. held that on the facts the Plaintiff had an implied right to be provided, while the contract lasted, with a reasonable amount of work for otherwise the bargain was of a very one-sided character and said,

The workman must be at the beck and call of the master whenever required to do so and yet he cannot, though ready and willing to work and to earn his pay, earn a single penny unless the master chooses; and this state of things may go on for a period of nearly two months, as the twenty eight days'' notice to quit the service can only be given on the first Monday in the month.

This judgment Was upheld in appeal and Lord Alverstone, C.J. observed that

the implication which is to be drawn from this contract is one which is raised from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have.

The learned Chief Justice further said,

the only facts that are material to be considered are that the Plaintiff was in the Defendants'' regular employment, that he was paid by piece work and that he was employed upon the terms of a rule which provided that no person regularly employed shall quit or be discharged from these works without giving or receiving twenty eight days'' notice in writing, such notice to be given on the first Monday of any calendar month...No distinction in principle can be drawn between wages by time and wages by piece. Piece work is only a method of ascertaining the amount of the wages which is to be paid to the workman....

In my opinion the necessary implication to be drawn from this contract is at least that the master will find a reasonable amount of work up to the expiration of a notice given in accordance with the contract. On the strength of this it was contended that the document of 1922 read in the light of the evidence adduced went to show that the Defendant was under an implied obligation to provide the Plaintiff with a reasonable amount of work so long as he was not informed that his services were no longer required. It was further argued that the document by itself cast an obligation on the Defendant to give the Plaintiff regular work.

Let us now consider the document of 1922 in the light of the evidence adduced of the surrounding circumstances and the propositions of law contended for by the parties. The document bears a stamp of eight annas and an endorsement at the top right hand corner reading "M.M. 2001". Very probably M.M. refers to Mackinnon Mackenzie and Company The document is in English, a language which the Plaintiff did not know as is evident from the fact that he was unable even to sign his name at the foot of the plaint.

The Plaintiff''s case that he had been working for the Defendant company ever since 1918 receives support from a document dated August 23, 1918, acknowledging receipt of Rs. 25 from the Plaintiff

as a guarantee of good faith for the performance of his duties as also that of the men comprising his gang and as a guarantee that he supplied men whenever called upon to do so.

I find myself unable to accept in full the argument on behalf of the Appellant that the document of 1922 was only an offer made by the Plaintiff to the Defendant which the latter was free to accept or not by giving work to the Plaintiff if and when it thought fit to do so. The circumstances in which the document came to be executed must be borne in mind. On one side there was a vast inter-continental organisation and on the other a poor illiterate cooli sardar who had to deposit Rs. 25 as guarantee of good faith for the performance of his duties as also that of the men comprising his gang. It is evident that the Defendant attached some importance to this document by taking it on a paper bearing stamp for an agreement. It is hardly reasonable to think in circumstances like these that the Plaintiff could of his own accord put his signature to a document expressed in a language which he did not know simply to make an offer of his services. It would be more correct to say that the document was in the form in which the Defendant wanted it and the text of it had not only the approval of the Defendant but was at its dictation. Although the express acceptance of the terms of the document is not to be found in the text it would be safe to hold that the Defendant was responsible for the wording of the document and accepted whatever is to be found there. The salient features of the document are as follows:

(a) The Plaintiff agreed to serve (i) Mackinnon Mackenzie and Company as a cooli sardar and (ii) to supply that firm with a gang of men whenever called upon to do so for work;

(b) the Plaintiff was to receive wages in force at the time or at a fixed rate which might be agreed upon later;

(c) the Plaintiff had to deposit Rs. 25 as a guarantee of good faith for the performance of his duties as also that of his men during the period they would be employed by Mackinnon Mackenzie and Company

(d) the said sum of money was to be refunded to the Plaintiff in case the Defendant felt that it no longer required his services and gave him one month''s notice in respect of this;

(e) the Plaintiff was liable to forfeit the entire sum of money in the event of his misconducting himself in any way or in the event of his failure to supply the company with the gang of men when called upon to do so.

The subsequent conduct of the parties makes it clear beyond any doubt that the Plaintiff was obliged to attend at the office of the Defendant everyday in the month and that his attendance was regularly noted down in the Defendant''s books. If the Plaintiff wanted to go away from Calcutta he had to obtain sanction of the Defendant. Reading the document in the light of this conduct from 1922 to 1953, it is my view that the parties regarded each other as bound by certain obligations. It was the duty of the Plaintiff to present himself at the Defendant''s office everyday while there was a corresponding duty on the Defendant to inform him whether there was work for him or not. If there was work the Plaintiff had to do it along with his men and on his failure to'' supply the men or on his misconducting himself in any way in his duties he was likely to lose the deposit of Rs. 25. The Plaintiff was to be paid wages which were in force at the time or such wages as might be agreed upon. The Plaintiff would be released from his obligation to be ready to work for the firm along with his gang of men comprising mates, khamalies, coolies on a month''s notice. The document does not create a right in the Plaintiff to get work for any stated number of days in a month or a year although he was under an obligation to be ready to work whenever called upon to do so. If there was a rush of work the Plaintiff might be called upon to work for 30 days in a month and if there was no work or little work in the hands of the Defendant he might not have an opportunity to render any service or receive any wages. The agreement certainly was one-sided in that although it cast no express obligation on the Defendant to furnish any work to the Plaintiff the latter had to keep himself ready to serve at the beck and call of the former. This is quite consonant with the exigencies of the situation, namely, that the Defendant had no less then 200 cooli sardars like the Plaintiff at its beck and call who had executed documents on identical terms in favour of the Defendant. It was to cure this unhappy situation that the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, was formed to ensure greater regularity of employment of dock workers and to secure that an adequate number of dock workers was available for the efficient performance of dock work.

If we delete the words "whenever called upon to do so" from the document a contract binding upon both the parties clearly emerges from it. In that case the Plaintiff had to work for the Defendant at wages in force or which might be agreed upon although his service might be terminated on a month''s notice. He had to deposit Rs. 25 for the faithful performance of his duties etc: he would lose the money in the event of misconduct. The real significance of the words "whenever called upon to do so", in my view is that the Plaintiff was not to get work with any regularity or from day to day but was to wait the convenience of the Defendant in the light of the fact that there were many others like him with similar claims on the Defendant for rendering service. In this context I cannot read the words "I agree to serve" as meaning "I offer to serve". If the document was merely an offer giving the offered one month''s notice that his services would no longer be required would be meaningless.

In my view considered in the light of the surrounding circumstances the document recorded an agreement between the parties obliging the Plaintiff to attend everyday in the month and find out whether there was work for him and the Defendant to give him work if there was any, keeping in mind that there were at least about 200 people like the Plaintiff who depended on the Defendant for their livelihood. But effective service which had to be paid for was to be rendered only when the Defendant informed the Plaintiff that he and his men should work on a particular ship. How long the employment would last would depend upon various factors, to wait, the quantity of loading and unloading to be done, the time within which it had to be done and the number of gangs employed for the purpose. As soon as the job on a particular ship was over the Plaintiff would have to wait for further work until another ship came into the docks. Even then there was no certainty that the Plaintiff would be given work on the next ship if there were other sardars like him who had not been given any work on the previous ship. I cannot read the document to mean that the Defendant was obliged to provide the Plaintiff with a reasonable amount of work so that he could maintain himself on the wages which he might receive. It was an agreement which fully served the convenience of the Defendant because of the surplus of labour but paid scant regard to the needs of the Plaintiff. While it lasted the agreement bound the Plaintiff not to work elsewhere but to wait the Defendant''s pleasure for being assigned some work. There was however no corresponding obligation on the Defendant to provide the Plaintiff even with a minimum number of days'' work in a month. How much work the Plaintiff would get depend entirely on the volume of trade done by the Defendant whose obligation at best was to give work to every cooli sardar like the Plaintiff turn and turn about so that the work could be said to have been evenly distributed. By the very nature of things the service of the Plaintiff could not be continuous in point of time but could only be fitful or intermittent.

On the evidence it is clear that the service of the Plaintiff with the Defendant was not uninterrupted and continuous nor was it interrupted on account of sickness or authorised leave or accident or strike or lock out or cessation of work not due to any fault on the part of the Plaintiff within the meaning of Section 2(ccc) of the Act. Notwithstanding this the service could be continuous within the meaning of Sections 25C and 25F if it was shown that the Plaintiff had actually worked for the Defendant for not less than 240 days in a year by reason of the provisions of Section 25B. Under the explanation to Section 25B, 240 days may be made up of the actual number of days on which a workman works, for the employer together with the number of days he had been laid off under an agreement with the employer or as provided by standing orders made under, the Industrial Employment (Standing Orders) Act, 1946, or under any other law applicable to the relevant industrial establishment. It J has not been suggested in this case that there was any lay off of the Plaintiff under any agreement or standing orders of the Defendant or any other law. The learned trial Judge, however, took the view that though there was no lay off under an express agreement the circumstances of the case were such that an agreement to lay off should be implied whenever the Defendant had no work for the Plaintiff. I find myself unable to concur in that view. According to the Shorter Oxford English Dictionary "lay off" means a period during which a workman is temporarily discharged. But "lay off" has a special meaning u/s 2(kkk) of the Industrial Disputes Act. Before a workman can be said to have been laid off within the meaning of the Industrial Disputes Act the circumstances of the case have to be examined to find out whether the master''s inability to give employment arose through the failure, refusal or inability ipi assign him work on account of shortage of coal, power or raw materials or accumulation of stocks or break down of machinery or for any other reason. It has been held by the Supreme Court in Management of Kairbetta Estate, Kotagiri Vs. Rajamanickam and Others, , that the expression "any other reason" must refer to a reason which is allied or analogous to reasons already specified. Insufficiency of work in the business of a stevedore cannot therefore be a reason for "lay off" and if there was failure or inability of such an employer to provide a workman with a job because he had not sufficient business on his hands the workman could not be said to have been laid off within the meaning of Section 2(kkk) of the Act.

This would be sufficient to dispose of the appeal because in the light of the evidence adduced and the discussions above it must be held that the Plaintiff''s employment was not continuous service within the meaning of the Industrial Disputes Act. Even if the Plaintiff had rendered continuous service to the Defendant within the meaning of the Act he would have to show that he had been retrenched by the Defendant within the meaning of Section 2(ooo) of that Act so as to be able to get retrenchment compensation u/s 25F of the Act. There can be no retrenchment unless the service of the workman is terminated by the employer. The Plaintiff''s evidence in his examination in chief was that in September, 1953, he and the other cooli sardars were asked to go over to the Calcutta Dock Labour Board for three months and it was in obedience to the order of the Defendant that they went to the Dock Labour Board but even then worked for two months afterwards exclusively on the ships of the Defendant. He admitted, however, that since September, 1953, he and the other sardars had been paid by the Dock Labour Board. He also admitted having had no knowledge of the termination of his employment by any notice of the Defendant in 1955. The evidence of the other cooli sardar Ali Hossain was much to the same effect. The evidence of Gomes was that sardars were taken over by the Dock Labour Board in September, 1953 and that the sardars were given retrenchment ''orders and Hopkins, the Cargo Superintendent of the Defendant, had taken them to the Dock Labour Board and got them registered there.

The evidence of Sundaram Subramaniam Aiyer, Office Superintendent of the Calcutta Dock Labour Board was, however, somewhat different. According to him the scheme of the Dock Labour Board necessitated the registration of all dock workers by the Board and after such registration the workers became the employees of the Board. The Scheme which was marked Ex. 3 shows that its object was to ensure greater regularity of employment for dock workers and to secure that a sufficient number of such workers was available for the efficient performance of the dock works. The Scheme was to apply to registered dock workers and registered employers. Paragraph 7 of the Scheme shows that it was for the Board to allocate registered dock workers to registered employers. Paragraph 8 shows that the Board was to work as an agent for the employer and pay to each daily worker all earnings properly due to him from the employer as his agent. Workers who were on the reserve pool were paid minimum wages for at least 12 days in a month and were paid attendance wages at the rate Re. 1 per day for the days on which no work was found for them. Under para. 29(2) a registered dock worker was to be deemed to be under the employment of the Board and was not to engage himself for employment under any registered employer unless he was allocated to him by the administrative body. The registered employer had to accept the obligation of the Scheme and pay to the administrative body of the Board the total amount of the gross wages due to daily workers specified in the return made under sub-para. (5) of para. 30. Paragraph 31 provides for the termination of employment of a registered dock worker.

The circular dated September 18, 1953, Ex. 4 in this case shows that all the gangs of coolies were to be transferred to the Board in terms of the circular dated September 9, 1953 and it was the Board which was to give them work by rotation in the ships of the respective stevedores initially. The circular further shows that the workers had to go over to the Board on the date specified as allotment of the work was to be done by the Board. From the Scheme and the circulars and the evidence of Aiyer and Pradip Chandra Sen on behalf of the Defendant it would appear that the Defendant, a registered employer in terms of the Dock Labour Board Scheme, was not free to engage anybody like the Plaintiff after the Scheme was put in force and the Plaintiff who got himself registered under the Scheme was not free to accept any work except under the direction of the Dock Labour Board. From this it would follow that registration with the Dock Labour Board and acting in terms of the circular put an end to the contract of employment of the Plaintiff with the Defendant. Even if it be true that Hopkins had taken over all sardars to the Dock Labour Board and got them registered there it would only mean that the sardars had voluntarily gone over because they thought they would get work more regularly under the Board than they were getting under the Defendant. From the evidence adduced it is not possible to hold the Plaintiff was retrenched as alleged by him in the Plaintiff would be correct to say that by getting himself registered with the Dock Labour Board the Plaintiff severed his connection with the Defendant.

In view of the above the judgment and decree of the learned trial Judge cannot be sustained. Assuming that the Plaintiff was at all material times a workman under the Defendant company for the days he rendered service to it, his employment was not continuous within the meaning of the said Act. Further there was no retrenchment as alleged by him and his services were not terminated by the Defendant.

In the result, the appeal must be allowed but in view of the relative positions of the parties and the circumstances of the case it would be fit and proper that there should be no order as to costs of this appeal and the order for costs in favour of the Plaintiff by the learned trial Judge will be set aside.

Sinha, J.

I agree.