The Management of the New India Insurance Company Ltd. vs Pathiram and Another

The first respondent was appointed as a watchman of the appellant company originally on a temporary basis by an order dated 3rd September,

1964 with effect from 5th August, 1964 and later permanently on probation by another order dated 10th July, 1965. As per these appointment

orders he has to report for duty daily at 5 p.m. and watch the office premises till 6.30 a.m. the next day or until such time in the morning when he

would be relieved by any of the officers of the company or the peon when the office opens. The other terms and conditions of appointment are not

very material for the purpose of disposal of this writ appeal. The General Secretary of the New India Insurance Co. Ltd., S. R. Employees

Association made a demand on behalf of the First Respondent for payment of overtime wages, on the ground that he had worked beyond the

normal working hours and that therefore he is entitled to be paid overtime wages under S. 31 of the Tamil Nadu Shops and Establishments Act

1947 (hereinafter called the Act). The Appellant company did not comply with this demand. Thereafter the first respondent preferred a claim

petition under S. 33-C(2) of the Industrial Disputes Act before the second Respondent claiming a sum of Rs. 31,074/- the details of which were

given in the Annexure to the petition as overtime wages at double the rate for the work done beyond his normal working hours. A copy was filed

on behalf of the Appellant in which among others, they contended that though the first Respondent is described as a watchman in the appointment

orders, he is only a caretaker within the meaning by S. 4(1)(b) of the Act and that therefore he was not entitled to the benefits of the Act. The

Labour Court accepted this contention of the appellant and held that the First Respondent functioned only as a caretaker and that therefore under

the exception to the provisions of S. 4(1)(b) of the Act he was not entitled to the benefits of the Act. In that view he did not go into the other

contentions of the first Respondent. It may be mentioned that the appellant also raised defences on merits and contended that even if he is a

watchman and therefore as employee of the company he will not be entitled to any overtime payment on the ground that his normal working hours

is from 5 p.m. to 6.30 a.m. Against the order of the Labour Court the first Respondent preferred W.P. No. 4111 of 1978 and contended that he

is a watchman of the Appellate company and not a caretaker within the meaning of S. 4(1)(b) of the Act and the finding of the Labour Court that

he is a caretaker is contrary to Law. The Learned Judge who heard the writ petition accepted the contention of the First Respondent and held that

he is a watchman and not a caretaker and that therefore the exemption provision contained in the S. 4(1)(b) is not applicable. In that view he

allowed the writ petition, set aside the order of the Labour Court and remitted the matter back to the Labour Court for disposing of the same after

considering the other questions raised on merits, and in accordance with law. It is against this judgment the present writ appeal has been filed.

The short point that arises for consideration in this writ appeal is whether the first respondent is a watchman or caretaker. Neither the Industrial

Dispute Act nor the Act defines the words ""watchman"" and ''caretaker''. We have therefore to understand the meaning of the words with reference

to the meaning attributed to it in standard dictionaries and encyclopaedia. In shorter Oxford dictionary the meaning of the word ''caretaker'' is given

an ""one put in charge of anything or person"". In Websters dictionary the meaning is given as (1) one that is placed usually as occupant in charge of

upkeep, repairs and protection of the house estate or farm of an owner who may be absent (2) one fulfilling the functions of office on a temporary

or a provisional basis. In Random House dictionary the meaning of caretaker is given as ""a person who is in charge of the maintenance of the

building estate etc."" In Corpus Juris Secunduum it is defined as one employed to watch or keep in order property or a house in the absence of the

family or one employed in a building or estate during the absence of the owner to look after goods or property of any kind. It may be seen from

these meanings given, that caretaker is essentially one who is put not merely in charge of the building but also one whose duty is to upkeep, repair,

maintain and protect the house or estate which was put in his charge. The meaning of the word, ""watchman"" given in Websters as ""one who keeps

watch; guard sentinel; one who is employed to stand watch over or to patrol property for the purpose of protecting it against theft, fire or other

damage, one who keeps guard at a particular place to warn person of imminent danger"". Shorter Oxford dictionary gives the meaning as one who

keeps vigil; one who watches over or guards a person or thing, one of the body of men formerly appointed to keep watch and ward in all towns

from sunset to sunrise, later a constable of the watch who before the Police Act of 1839 patrolled the streets by nights to safeguard life and

property. Random - House dictionary gives the meaning as ""a person who keeps guard over a building at night to protect it from fire or thieves;

formerly a person who guards or patrols streets at night"". The New encyclopaedia Britanica defines ""watchman"" as one who keeps watch i.e.

guard before notice forces were formed, a watchman was a peon assigned to guard the streets of a city at night. The term is now most often used

of a person employed to stand watch over or to patrol, private property to protect it against theft, fire or other damages. It may be seen from the

meaning given for watchman he is one who merely keeps watch or guard over a building or an Establishment or other property and neither he

could be said to occupy in the sense of a caretaker nor has he any duty in the matter of the property upkeep repair, maintenance or protection.

Therefore functionally both the caretaker and the watchman are different, though with respect to protection of property from theft or other

transpass, the functions may overlap. These two expressions are normally also understood only in this sense in common parlance. Having regard to

this meaning if we trace the duties of the first respondent, we have no doubt that he is merely a watchman and not a caretaker. The Learned

counsel for the appellant relied on the oral evidence of the first respondent wherein he had stated ""at the start of my duty hours, the cashier shows

me the locked cash box and I verify it. After that I respond to the calls of each of the officers who stay in the office even after 5 p.m. until they go

away. I carry the papers from table to table whenever asked to. After all the staff leave I switch off all the lights fans etc. close the windows, fill up

the three overhead water tanks, by switching on the motor, receive telegram after office hour and keep watch on the entire premises during night

by making frequent rounds. Hardly these functions could be termed as the function of a caretaker. The fact that he attends to odd jobs which are

normally done by peons more by way of courtesy to the staff could not bring him anywhere within the meaning of ''caretaker'' as such. In fact the

orders of appointment show that he is to watch the premises from 5 p.m. to 6.30 a.m. or till someone comes to the office and take charge of the

office. Even with reference to the functions of the first respondent, as referred to in his evidence, he could not be termed as a ''caretaker''. The

learned counsel for the appellant drew our attention to the decision In Re: Srinivasa Ayyar (P.S.), . In that case, a Learned Single Judge held that

the mere use of the word ''caretaker or watchman'' in the order of appointment will not be decisive of the character of the employment but it will

have to depend on the facts in each case. In this view we are in agreement with the Learned Judge. However we respectfully disagree with the

Learned Judge when he said that a watchman of a bank whose duty was to guard the premises of the bank during night time between 6 p.m. to 6.

a.m., would only be a caretaker to claim exemption under S. 4(1)(b) of the Act. We have already held that the functions of a person who is

appointed to guard the premises during non-office hours of the office premises should not be considered as that of a caretaker within the meaning

of S. 4(1)(b) of the Act and that it would only be that of a watchman. In this view, we confirm the judgment of the Learned Judge and dismiss the

writ appeal. However we make it clear that even as a watchman whether he would be a person employed within the meaning of S. 2(12)(iii) of the

Act and whether he would be entitled to any overtime payment, is left open to be decided by the Labour Court in the proceedings that have been

remitted back. We also leave open the question whether the appellate company will come within the purview of S. 4(1)(c)(f) of the Act and that

also will have to be considered by the Labour Court. With these observations, the writ appeal is dismissed. There will however be no order as to

costs.