Kurian Joseph, J. 1. The following two questions of law arise for consideration in this appeal:
"1. Whether the substitute (Badli Worker) engaged and paid directly by a permanent labourer is a "workman" as defined in the Workmen's Compensation Act, 1923.
2. Whether the opposite parties, namely the principal employer and the contractor, are liable to pay compensation to a substitute (Badli worker) engaged by the permanent labourer, for the injuries sustained by the substitute."
2. The brief facts leading to the case are: October 25, 1989 was a tragic day to the then 23-year old first respondent herein. While he was doing the work of loading foodgrains on behalf of the appellant at the premises of the; F.C.I, godown at Kazhakkuttom, a pile of stacked sacks toppled and fell on his back. As can be seen from Ext. A4 medical certificate, having sustained fracture of spine and other serious injuries, "he is suffering from paraplegia with pressure sore and urinary tract infection. He has got a permanent partial disability of 80%". In spite of prolonged medical treatment at Medical College Hospital, Thiruvananthapuram and Christian Medical College Hospital, Vellore he is practically immobilised. Therefore, he claimed compensation under Section 4 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') to the tune of Rs. 1,09,975/-.
3. The appellant, the Trivandrum Port and Headload Workers Co-operative Society Ltd. (hereinafter referred to as the Society) contended that the applicant was not a permanent labourers employed by them, though they admitted that there was an agreement by the society with the F.C.I, for clearance of foodgrains arriving at Kazhakkuttom Goods Shed. According to them, the applicant was only a substitute (badli) workman in the place of one of their permanent labourer. The 2nd respondent F.C.I. contended that handling and transportation of foodgrains was entrusted to the Society under an agreement and that all the labourers employed in the godown for the purpose of execution of the work covered by the agreement were under the direct control of the Society. In short, both the society and the F.C.I, denied employer-employee relationship with the applicant and contended that they were not liable for payment of any compensation to the applicant.
4. Before the Commissioner for Workmen's Compensation (hereinafter referred to as the Commissioner) the following issues were raised:
"(1) Whether the applicant was a workman coming under the term 'workman' as defined in Section 2(1)(n) of the Workmen's Compensation Act, 1923. :
(ii) Whether the applicant was a workman engaged for the work in the F.C.I, godown, Kazhakuttom by the first opposite party on the date of the accident.
(iii) If so, whether the applicant is entitled to get lumpsum payment of compensation towards workmen's compensation under Section 4 of the Workmen's Compensation Act, 1923.
(iv) Whether any of the opposite parties in this case is liable to pay workmen's compensation to the applicant".
The evidence consisted of the oral testimony of the applicant as AW. 1 and Exts. Al to A4 pertaining to his treatment, injuries etc. On the part of the Society, two witnesses were examined as DWs. 1 and 2. DW. 1 was the Work Supervisor employed by the Society and DW.2 was the President of the Society. Exts. D1 and D2 produced by the Society pertain to the Register of Workers of the Society and the file relating to their Provident Fund contribution respectively. Ext. D3 was copy of the appointment order of DW. 1 as Work Supervisor.
5. On appreciating the evidence tendered by the parties, the Commissioner came to the conclusion that the applicant was a workman engaged by the Society for the F.C.I. Since it was admitted by the parties that the accident on October 25, 1989 leading to the injuries of the applicant occurred in the course of his work in the godown, it was held that the applicant was entitled for compensation under the Act to the tune of Rs. 1,09,975/- and deducting the lumpsum payment of Rs. 15,000/- already made by the Society, he was entitled to an amount of Rs. 94,975/- with 6% interest with effect from October 25, 1989. Dealing with the fourth issue, the Commissioner directed the F.C.I., the principal employer to make the payment and ordered that the F.C.I, should be indemnified by the Society. Aggrieved by the said order, the Society has preferred the appeal raising the abovementioned questions of law.
6. Before dealing with the legal aspects of the case, we feel it necessary to advert to the evidence of the parties so as to have a clear picture of the facts involved in the case. In the written statement filed by the Society before the Commissioner, it is stated thus (in paras. 2 and 3):
"2. The averments contained in paragraph 1 of the Application are admitted to the limited extent that the applicant had received personal injuries in an accident which occurred on October 25, 1989 at Kazhakkuttom F.C.I. Goods Shed. Applicant is not an employee of this Respondent. The contention that the Applicant is a Workman is denied.
3. It is submitted that this Respondent is the Contractor appointed by the 2nd respondent for clearance of grain arriving at the Kazhakkuttom Goods Shed. The employees of this Respondent at the goods shed are as per various agreements with the Food Corporation of India, Trade Unions, fixed by number. A roll of permanent labourers, exists and the Applicant is not a permanent labourer attached to the Kazhakkuttom goods shed only."
In the counter-statement of the F.C.I, it is stated in paragraphs 4, 5 and 9(a) as follows:
"(4) The applicant, it seems, was a casual employee under the 1st respondent Society and 1st respondent Society is liable if at all any liability to pay compensation.
(5) The applicant being a casual employee, employed by the 1st respondent Society, is a worker under the 1st respondent and the 2nd respondent is not the employer.
XX XX XX (9) The 2nd respondent submits the following as the counter-statement relating to paragraphs (1) and (2) of the application.
(a) The Trivandrum Port and Headload Workers Labour Contract Co-operative Society Ltd. No.4245, Trivandrum was the handling and Transport Contractor for Food :
Storage Depot, Kazhakkuttom during the period from October 21, 1987 to January 31, 1990. The said society had executed a contract agreement with the Food Corporation of India. The Contractor Society (1st respondent) employs labourers for carrying out the handling operations at the depot and the above labourers will be under the control of the Contractor Society, the 1st respondent."
It is further stated in paragraph 13 as follows:
"13. As per the terms and conditions of the contract agreement the contractor society is liable for payment of compensation under the Workmen's Compensation Act, 1923 in consequence of any accident or injury sustained by any workman or other persons whether in the employment of the contractor or not."
DW. 1, Work Supervisor of the Society has admitted the accident. He also stated that "in order to enter the godown of the FCI, permission should be obtained from the FCI. Without instruction from FCI officials, nobody can do any work in the godown. Without permission from the society nobody can work in the FCI godown" (translated version). DW2, President of the Society deposed as follows: "At Kazhakkuttom, apart from the headload workers who are members in the Society, casual employees were also engaged for work........ If the permanent labourers were on leave, substitutes deputed by the permanent labourers used to work....... Only that workman permitted by the society can work in the FCI depot." (translated version).
7. From the abovestated evidence the position clearly emerges that the applicant in the instant case, even admitting the case of the appellant that he was a labourer substituted by another permanent labourer, worked in the FCI godown on the fatal day only with the knowledge and permission of the Society and the FCI. As stated by DW1 and DW 2, there was a system of casual employees being engaged in the godown and also substitutes being employed for the work. It is in the above factual matrix, we have to analyse whether the applicant was a workman.
8. Section 2(1)(n) of the Act defines 'workman' as follows:
"(n) "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 xx xx xx
(ii) employed in any such capacity as is specified in Schedule II...."
Clause (xxvi) of Schedule II to the Act reads as follows:
"The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is, xx xx xx (xxvi) employed in the handling or transport of goods in, or within the precincts of,
(a) any warehouse or other place in which goods are stored, and in which on any one day of the preceding twelve months ten or more persons have been so employed...."
9. In the decision reported in In Re. Workmen's Compensation Act AIR 1936 All. 690, a Division Bench of the Allahabad High Court considered the case of a person officiating in a leave vacancy while answering the reference under the Act and held as follows:
"The mere fact that he was officiating in a leave vacancy would not take him out of the definition of a workman. Persons excluded from the definition are those whose employment is not only of a casual nature, but who are employed otherwise than for purposes of the employer's trade or business."
10. In Arumugham v. Nagammal AIR 1949 Mad. 462, dealing with the question as to whether a coolie engaged by a maistry of a contractor was a workman of the principal employer, it was held as follows: "A coolie employed by a maistry for a specified remuneration on behalf of the principal to do the work of the principal is a "workman". The employment of the coolie by the maistry is a contract of service within the meaning of the definition."
11. In K. Saraswathi v. S, Narayanaswami and Ors. reported in 1985 ACJ 38, the Madras High Court held that a person employed only for 2 or 3 days as a substitute driver for a lorry would be a workman under Section 2(1)(n) of the Act.
12. From the above decisions, the legal position that clearly emerges is that if one is a workman, it does not matter whether he is a substitute, even if he has no direct relation with the principal employer. In other words, even if there is no employer-employee relationship with the principal employer, a substitute will be a workman if he is engaged for the service of the principal employer and he is occupied in the performance of work or duties for the principal employer or if he is retained for the service of the principal employer. What is of paramount importance is whether the person is engaged for the purposes of the trade or business of the principal employer. Such a person can even be a casual employee, as has been settled by a catena of decisions of this Court in Kochu Velu v. Joseph, 1980-II-LLJ-220 (Ker-DB), Kochappan v. Krishnan 1987-II-LLJ-174 (Ker-DB) and Kerala Balagram v. Kochumon 1998-I-LLJ-744 (Ker-DB) which was a judgment delivered by one of us (ABDUL GAFOOR, J.). The crux of all those decisions is seen in the words of K.T. THOMAS, J. (as he then was) in the Bench decision in Moideen v. Gopalan, 1996-I-LLJ-1027 at 1028 (Ker-DB) :
"7. Even assuming that claimant's employment on that day was of a casual nature, that by itself is not enough to push him out of the ambit of the definition of the workman. If a person has to be ousted out of the contours of the definition, the casual nature of his engagement must couple with the succeeding postulate in the definition that such employment should not be for the trade or business of the employer. The word "and" used in the definition is for the conjunction of the two postulates together in one person. No interpretation to make the two postulates disjunctive is warranted in the context."
13. Another decision of the appellant is that the labourer was not a person employed by the Society. As already stated, if the accident occurs while a person is engaged for the service of the principal employer, or when he is occupied in the performance of the work or duties of the principal employer, or when he is retained for the service of the principal employer it has to be held that the accident occurred during the course of the employment land the principal employer is liable to compensate the workman. As stated in Kamala v. Madras Port Trust 1966-I-LLJ-690 (Mad) "An activity is related to the employment, if it carries out the employers purposes or advances this interest directly or indirectly." In holding thus, we are guided by the observation of V.R. KRISHNA IYER, J. in Hussain Bhai v. Alath Factory Thozhilali Union's case AIR 1978 SC 1410 : 1978 (4) SCC 257 : 1978-II-LLJ-397 that "The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances". Certainly, the purpose of law is to reach for the assistance of a workman who is disabled or deceased in the course of his work for principal employer.
14. True, there are defences for the principal employer. But all those defences are answered in Section 12(2) of the Act which reads as follows:
"(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor ;
from whom the workman could have recovered compensation, and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner."
15. Thus, it can be seen that the law-makers were fully aware of such defences like absence of employer-employee relationship, 'not directly employed' etc. and only in that context this indemnity clause was incorporated in the statute. In the instant case even otherwise the appellant cannot shirk from their liability, as there is already an agreement as noted above between the Society and the FCI that in the event of any accident at the premises of the godown during the period of subsistence of the agreement, the society is liable, should it be any accident or injury sustained by any workman or other persons, whether in the employment of the contractor or not.
16. In view of what is stated above, we see no merit in the appeal and it is accordingly dismissed. In the circumstances of the case there will be no order as to costs.