The first respondent filed an application for compensation under Section 10(1) of the Workmen's Compensation Act. (hereinafter referred to as 'Act'). The allegations contained in the claim petition are as follows:
2. The applicant is a workman employed by the opposite party (appellant herein) for constructing shed for water pumpset for irrigation to lands and for proper maintenance of pumping equipments used for lifting the water from well. On 07.02.2000, at about 2.30 p.m when the applicant was in the construction of the pumpset, opposite party No.1 came and requested opposite party No.2 to look into her oil pumpset nearby as the running pump-set engine which was running, could not be stopped. Hence the opposite party No.2 directed the applicant to go and look into the same. The applicant, in obedience to the direction of the opposite party No.2 and for the benefit of the opposite party No.1 proceeded towards oil pump-set nearby in the field of opposite party No.1. Even as the applicant was nearing, the oil pump-set burst and hit on his right knee which chipped off the right knee cap resulting in bleeding injuries. The opposite parties and others present, admitted him to C.M.C. Hospital. The monthly wages of the applicant is Rs.3,000/-. Hence a sum of Rs.2,36,472/- has been claimed as compensation from the second opposite party.
3. In the counter filed by the second opposite party (appellant herein), the following are stated:-
The claim petition is not sustainable. It is incorrect to state that on 07.02.2000 at about 2.30 p.m when the applicant was engaged in the construction of the pum-set, the opposite party No.1 requested this opposite party to look into her oil pump-set nearby which was running and could not be stopped, that this opposite party directed the applicant to go and look into the same and in obedience to the direction, he went to the pump-set and on the way he met with the accident, are all false. This opposite party, no doubt employed the applicant for constructing the pump-set near his well since 02.02.2000. On the forenoon on 07.02.2000, the applicant was doing construction work. At 1.30 p.m he stopped the work for lunch and during lunch recess, in the absence of this opposite party, the applicant on the request of the first opposite party went to stop the diesel engine which was running in an erratic manner since the belt got disconnected. The applicant had ventured to help the first opposite party without the consent/knowledge of this opposite party. The accident did not arise out of and in the course of employment. The applicant was neither directed nor authorised by this opposite party to stop the pump-set engine. The accident has got nothing to do with the applicant's employment under this opposite party. The applicant was purely engaged for construction work and he voluntarily invited the accident out of his own accord. Since the accident was not in the course of employment or incidental to his employment, this opposite party is not liable to pay compensation. Two days later FIR was lodged, twisting the facts and suppressing the truth. The petitioner has not sustained any permanent disability. He is perfectly normal and attending to masonry work as usual. The petition is malafide, motivated and devoid of merits and hence the petition has to be dismissed.
4. The authority below, after scrutinising the evidence on record, both oral and documentary, reached a conclusion that the first respondent was the employee of this appellant and he sustained injury in an accident during the course of and out of employment and hence he is entitled for compensation to the tune of Rs.94,589/- under the following formula:-
Age : 36 Years Factor : 197.06 Monthly Income : Rs.2,000/- (consolidated) Loss of earning capacity : 40% Compensation : 60 x 2000 x 197.06 x 40 100 100 : Rs.94,589/-
5. The above said award passed by the Commissioner of Workmen's Compensation is under challenge before this Court in this appeal.
6. The following substantial question of law was framed at the time of admission of the appeal.
"Is not the order of the Commissioner vitiated by exercise of jurisdiction not vested in him under the statue while assessing the loss of earning power on his own and by failure to exercise such jurisdiction when he failed to make provision for indemnify under Section 12 and
13 of the Act?"
7. The learned counsel for the appellant Mr.S.Manohar would strenuously contend that inasmuch as the facts and evidence on record are otherwise, the authority below has wrongly concluded that the first respondent is an employee under the appellant and hence he is entitled for compensation, that the first respondent would not come within the purview of "workman" as defined in the Workmen's Compensation Act and that the authority below has miserably failed to appreciate the evidence on record in a proper perspective.
8. Arguing on the other side of the coin, the learned counsel for the first respondent/claimant would submit that the factual findings of the Commissioner, based on the materials available on record are more appropriate and the appellate court cannot go deep into the oral testimonies on record, that even if the first respondent is termed to be a 'casual labourer', still he should be made entitled to get compensation under the Workmen's Compensation Act since he fulfills the statutory requirements and that the work undertaken by him at the time of accident was incidental to the work of his employer, namely the appellant and hence there is no need to disturb the findings of the authority below.
9. In order to have a thorough glimpse of the matter in issue, it is more advantageous to have re-appraisal of the evidence on record before the authority below to some extent, without which there could be no just decision.
10. The second respondent herein, though, remained exparte before the authority below, posed as RW-1 and deposed in the cross-examination that she did not call the claimant, that he did not lay his hand on pump-set and that she was monitoring the pump-set. She, in her chief examination had deposed that she did not ask the claimant to go to her land and that he did not even go near her land. In the cross-examination, this appellant has stated that Mohanambal asked the claimant to stop the pump-set.
11. Ex.A7, is a xerox copy of a letter reportedly written by this appellant addressed to one Dakshinamoorthy, a trustee of Abdullapuram temple, in which it is stated that on humanitarian grounds, at the request of Mohanambal made to the claimant, he (appellant) permitted him to go to stop the engine. This xerox copy was marked through PW-1, the claimant and in his cross-examination it is denied on the side of this appellant that he has not written any such letter and no panchayat was held in this regard. Ex.A7 is a xerox copy and there is no impediment for the claimant to examine the said Dakshinamoorthy before the authority below to prove Ex.A7. Since the existence of document itself is denied by this appellant, it is incumbent upon the first respondent to prove it, but as it was not done, Ex.A7 remains unproved.
12. For better understanding of the matter involved in this proceedings, it is profitable to have extraction of Section 2(1)(n) of the Act which reads as follows:-
" 'workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is-
(i) a railway servant as defined in Section 2(34) of the Indian Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office or a railway and not employed in any such capacity as is specified in Schedule II, or (i-a)(a) a master, seaman or other member of the crew of a ship,
(b) a captain or other member of the crew of an aircraft,
(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or;
(ii) employed in any such capacity as is specified in Schedule II, Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependents or any of them."
13. The learned counsel for the appellant would argue that the first respondent was only a casual labourer and he could not avail the benefits proposed under the Act. On the strength of earlier authorities of the Supreme Court, in 2001 ACJ 1561 - Lakshminarayana Shetty V. Shantha and another, the Supreme Court while dealt with a matter in which a labourer when working under a contract of work of painting the house died. The High Court entertained the claim petition under Workmen's Compensation Act. But the Supreme Court is of the view that such a person could not come under the category of an 'employee' as defined under the Act and hence no compensation is available to the heirs of such labourer. The judgment of the Supreme Court runs as follows:
" 3. The respondents are the daughters and wife of the deceased Ramu who was engaged by the appellant to paint the house. While he was doing this work, he unfortunately fell down and died. The claim for compensation under the Workmen's Compensation Act was denied, but on a writ petition being filed the High Court has allowed the same claim.
4. No reasons have been given by the High Court for coming to the conclusion that this was a case which fell within the domain of the Workmen's Compensation Act. There was apparently a contract between the appellant and Ramu whereby Ramu had undertaken the work of painting the house. Whether the action of the appellant by engaging a person in this manner makes him employee or a workman of the appellant was a question to be decided. The case did not fall within the four corners of the said Act and, therefore, the decision of the High Court was incorrect. We, therefore, allow the appeal and set aside the decision of the High Court."
14. In 2006 ACJ 521 Central Mine Planning & Design Institute Ltd. v. Ramu Pasi & another, the Apex Court while specifically determining the proposition as to the rights of a casual worker, has held that when he was not employed for the purpose of employer's trade or business, if he sustains injury during the course of his employment he could not be treated to be a 'workman' within the definition of Section 2(1)(n) of the Act and the claim was not maintainable before the Commissioner. Their Lordships have expressed a view that "a bare reading of the Act shows that the expression 'workman' as defined in the Act does not cover a casual worker and that there was also no definite material adduced to show that the claimant was employed for the employer's trade or business." In the said case, the employee suffered injury on his left ring finger when he was working in the factory of the appellant. The Labour Court allowed the claim by stating that he was a casual worker. On appeal, the High Court confirmed the said award and the matter was carried before the Supreme Court, in which the above said opinion was rendered.
15. In order to bring an individual to the terms 'casual worker' it must be shown that he was not employed for a work to be done which was incidental or connected to the trade or business of the employer. If the work assigned to him and undertaken by him is found to have been any nexus or incidental to the trade or business of the employer, then, eventhough he is a casual labourer, then he could be termed to be a 'workman' as defined in the Act.
16. The learned counsel for the appellant also placed much reliance upon a decision of the Supreme Court reported in 2008(2) CCC 297(SC) Om Prakash Batish versus Ranjit @ Ranbir Kaur and others, in which the Apex Court has held that the workman was employed for a limited period for carrying our repair work in a residential house, could not come within the description of a workman as contained in the provisions of the Act.
17. The learned counsel for the first respondent would garner support from a Division Bench judgment of the Kerala High Court in which the learned judges have expressed their opinion that a person to be excluded from the definition of 'workman' as defined in the clause must not only be one "whose employment is of a casual nature" but also one who is employed otherwise than for the purpose of the employer's trade or business and that both these qualifications must be satisfied in order to exclude a person from the category of workman under the Act."
18. As per this court, as reported in 1988 II LLN 521 between Sri Padmanabha Theatre and Commissioner for Workmen's Compensation and others, a person though employed to clean the roof, may be occasional, it cannot be said that it was otherwise than for the purpose of employer's trade or business and under such circumstances, it cannot be taken out of the definition of 'workman' under the Act and it is to be held that he was employed for the purpose of employer's trade or business and he sustained injuries during the accident that occurred during and in the course of the employment."
19. The learned counsel for the e appellant placed reliance upon a Division Bench of this court reported in 2003-4-L.W.522 The Dean, Agricultural College and Research Institute, Kilikulam, Vallanad 627 252 Vs. 1. Tmt.S.Sakilabanu, 2. Thiru.S.Mani Contractor; 3. The Executive Engineer, PWD (Private Housing Division), Tuticorin-2, 4.V.Sudalaimuthu had occasion to have a discussion with reference to the definitions of employer and workman under the Act, held that the Principal employer of the workman has to be held liable when the work was entrusted to a contractor by the PWD which was for the building required for Agricultural College who in turn entrusted the work of constructing with the Public Works Department. The operative portion of the judgment goes thus:-
" In this case also, the construction put up by the Dean is not for his business and it is only an educational institution. However, construction has been entrusted to a building contractor through PWD and therefore it is the PWD Contractor, who is the principal employer under whom the workman was engaged and therefore it is the contractor, it at all, who is liable as the principal employer, and the sub-contractor under the immediate employer may also be proceeded. Considering the pronouncement of the Supreme court to proceed against the Dean of the College it has to be pointed out that the Dean may not fall within the four corners of the Workmen's Compensation Act and to bring it within the four corners the workman has to proceed only against the principal employer, namely, the PWD Contractor and the immediate employer, the fourth respondent herein as the case may be. The view taken by the Commissioner for Workmen's Compensation holding that the Dean is the Principal employer and against him a claim under the Act is maintainable cannot be sustained at all and it has to therefore be set aside.
20.(i) Repelling the contention of the appellant, the first respondent's learned counsel distinguished the above said decision, as to the facts and circumstances and relied upon a subsequent Division Bench decision of this court which has distinguished the above said decision bearing in mind the facts available in both cases i.e. in 2004 (3) CTC 770 K.Kamalaveni and another Vs. The Managing Director, Subbathal Spinning Mills (P) Limited, 128 Bhavani Main Road, Ashokapuram, Erode and another, the facts of the case are that the deceased was a labourer under a contractor but entered into a contract with the first respondent, a spinning mill for construction of a roof of the godown in the mills and the deceased was working for the purpose of construction in the roof of the godown, on 19.01.1993, he fell and sustained injuries who later on died. The Commissioner found that he was not a workman and that he did not sustain injuries in the accident which arose out of and in the course of his employment, rejecting the claim. On appeal, the Division Bench of this court found the deceased as 'workman' as described under the Act and allowed the appeal.
20.(ii) In Kamalaveni's case, this court has held that the first respondent managmement Mills on whose instruction the godown was constructed for the purpose of their business have to be construed as Principal employer though the deceased was immediately employed by the second respondent contractor and hence the mills are liable to pay compensation to the claimants according to Section 12 of the Act. The Division Bench has distinguished the facts in Sakila Banu's case by stating that since the deceased worked under a Sub-contractor who took up the work from the contractor with whom the Agricultural College entrusted the construction of ladies hostel. In that case it was held that the Dean of the college was not liable to pay compensation, but PWD contractor who is the Principal employer is liable, who in turn could get it reimbursed from his immediate employer.
21. Adverting to the facts of the present case, the work assigned to the first respondent was to construct shed for water pump set for irrigation to lands and for proper maintenance of pumping equipment used for lifting water from well. Excepting the ipse dixit of the first respondent, there is no material to show that he was deputed by this appellant to go to the field of the second respondent herein and to look into the pump set in her well. Of course, the Court could not accept any evidence other than the parties to the proceedings in the site of occurrence. The second respondent has stated unequivocal terms that she did not make any request to the claimant to come to her land and that he did not even go near her land. But the appellant in his cross examination would say that at the request of the second respondent, the first respondent had gone to her pump set. When the oral evidence on record are carefully dissected, it transpires that the appellant did not direct the first respondent to go to second respondent's land to do anything. But the first respondent was prompted to go to her land by the request of the second respondent and hence he proceeded. In this context, this Court sees no role on the part of the appellant and it is difficult to hold that he directed or deputed the first respondent to go to the second respondent's land.
22. It is further observed that if the first respondent has sustained employment injury while he undertakes any work connected either directly or incidentally to the business of the appellant alone, he could be brought under the ambit of "workman". This Court is at loss to find out that the first respondent went as per the desire and direction of the appellant. In this regard, even if the first respondent is a workman or a casual labourer under appellant, he could not be held entitled to compensation from the appellant for the reason that he did not do any act which was incidental or connected to the employment, which was assigned by the appellant. Hence the first respondent is not entitled for the relief.
23. In view of the above said observations, in the light of the settled position of law, the order impugned, challenged before this Court, has to be set aside and it is accordingly set aside.
24. In fine the Civil Miscellaneous Appeal is allowed. No costs. Connected M.P. is closed.
asr/ggs To The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour-I), Chennai