DANNI DEVI v. GURBUX SINGH — 1973 DIGILAW 12 (DEL)

JUDGMENT : Rajinder Sachar, J. 1. This is an appeal u/s 30 of the Workmen's Compensation Act (thereinafter called the Act) against the order of the Commissioner dated 20.10.1966 dismissing the application filed by the Appellant for the grant of compensation. 2. The Appellants filed an application before the Commissioner on the allegation that they are dependants of one Gokal Ram (deceased) who was employed by the Respondent Gurbux Singh. It was alleged that on 25th March, 1964 Gokal Ram received personal injuries in an accident arising out of and in the course of his employment. The cause of the accident was that on 25th March, 1964 while working on the premises and white-washing the floor on which he had got his support gave way with the result that he fell down and died after he had been removed to the hospital. It was pleaded that the monthly wages of Gokal Ram amounted to Rs. 125/- per mensem and the Appellant was entitled to a lump sum payment of Rs. 7,000/- as compensation. The Respondent Gurbux Singh in his reply, denied that the deceased was his employee. The plea taken was that Gokal Ram (deceased) had taken a sub-contract of white washing and colour washing from Respondent Gurbux Singh. It was also denied that any parapet gave way and that the accident to Gokal Ram took place during the course of the employment. On the pleadings of the parties the following issues were framed: (1) Whether the deceased was a workman within the meaning of Workmen's Compensation Act ? (2) Whether the deceased died as a result of accident arising out of and during the course of this employment with the Respondent ? (3) Whether the Petitioners are entitled to any compensation. If so to what amount ? (4) Relief. 3. The Commissioner came to the conclusion that the Appellants have failed to establish that the deceased was a workman within the meaning of the Act. In that view of the matter he found that even if the deceased had died as a result of the accident arising out of and during the course of his employment with the Respondent no compensation was payable because he was not a workman. Against his order, the present appeal has been filed. 4. In that view of the matter he found that even if the deceased had died as a result of the accident arising out of and during the course of his employment with the Respondent no compensation was payable because he was not a workman. Against his order, the present appeal has been filed. 4. The main question that arises in this appeal is whether the deceased was a workman within the meaning of the Act. Section 2(n) of the Act defines "workman" to mean 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 employed on monthly wages not exceeding five hundred rupees in any such capacity as is specified in Schedule II. The application by the Appellants was based on the allegation that the deceased was employed on a monthly wages of Rs. 125/- per mensem. The Commissioner, however, has found that is not correct and the deceased was merely a sub-contractor of a main contract which had been taken by Respondent Gurbux Singh. It is clear from the evidence of RW1 Partap Singh that a contract for the construction work of D. T. U. quarters had been taken by Respondent Gurbux Singh. The case of the Respondent, as deposed to by him as RW is that deceased had taken white washing job by way of subcontract in respect of D. T. U., quarter's contract. It may be mentioned that the accident by which deceased died took place while white washing was being done of these very D. T. U. quarters. According to the Respondent the terms of sub-contract was that deceased was to be paid Rs. 6/- for each one thousand sq. feet completed work of three coats. It was on the basis of this assertion that it was maintained by the Respondent, that the deceased was not a workman, within the meaning of the Act. The Appellants, however, had pleaded that the deceased was employed on a monthly wages of Rs. 125/- per mensem. But the evidence on record does not support this assertion. In this connection a perusal of an application Ex. Rl under Order 33, Rule 1 C.P.C. dated 10th November, 1961 filed by the present Appellants for the recovery of Rs. The Appellants, however, had pleaded that the deceased was employed on a monthly wages of Rs. 125/- per mensem. But the evidence on record does not support this assertion. In this connection a perusal of an application Ex. Rl under Order 33, Rule 1 C.P.C. dated 10th November, 1961 filed by the present Appellants for the recovery of Rs. 1397.50 from Respondent had alleged that Gokal Ram had been engaged by the Defendant Gurbux Singh in the job of white washing the D. T. U. staff quarters at G. T. Road and the stipulation was to pay Gokal Rs. 7/- per thousand, sq. feet for three coats of whitewashing after deducting the cost of material supplied by the Respondent for the white washing. It was alleged that at the time of death two coats had been applied and after deducting the material supplied a suit for the balance of Rs. 1397.50 was being filed. Similar allegation had been made in the notice Ex. R2 dated 2nd June, 1964 given by the counsel of the Appellant. There also the mode of payment was said to be Rs. 7/- per thousand sq. feet and for the cost of material to be adjusted from this payment. AW4 the widow of Gokal Ram has admitted para 2 of Ex. Rl which gives this mode of payment to Gokal Ram. In that view of the matter the finding of the Commissioner that the deceased was not employed on a fixed monthly wages of Rs. 125/- per mensem urged in the application, is not open to objection. But that does not necessarily lead to the result that Gokal Ram deceased was not a workman within the meaning of the Act. A person may still be a workman and not an independent contractor even if he is paid by piece work. It is not possible to accept the contention that simply because a persons has not been paid fixed wages per day or per month he ceases to be a workman. The position in this case is that contract to construct the D. T. U. Staff quarters at the G. T. Road was undoubtedly taken by Respondent Gurbux Singh. It is not possible to accept the contention that simply because a persons has not been paid fixed wages per day or per month he ceases to be a workman. The position in this case is that contract to construct the D. T. U. Staff quarters at the G. T. Road was undoubtedly taken by Respondent Gurbux Singh. It is also clear from the evidence of AW 3 who has proved letter Exhibit Al that the Department only recognised Respondent as a contractor and that he never approached the Executive Engineer, nor were they approached by anybody else to engage sub-contractor for the execution of any item of the contracted work. It is true as mentioned by AW 3 that no permission is officially required if the contractor chooses to get the work done through anybody else but he has also stated that the contractor alone is liable so far as the Department is concerned. The position thus is that contract was taken by Respondent Gurbux Singh which contract required white washing work to be done as one of the terms of contract. This work of white washing was done by Gokal Ram. It is proved from the evidence of RW2 Khyali Ram, Store Keeper of the Respondent that the material was supplied to Gokal Ram by the contractor and that the material was taken under his supervision. Now Gokal Ram would be a workman if it was shown that Respondent Gurbux Singh exercised control over the method of doing the work and had the right to supervise the work performed by Gokal Ram. The test for determination of relationship between a master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of contract of the work the servant is to do but also in the manner in which he shall do his work Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors. In that case dispute arose whether agarias who worked on the Salt mines with their families were workmen of the lessees of the same works. In that case dispute arose whether agarias who worked on the Salt mines with their families were workmen of the lessees of the same works. In that case also the facts admitted were that the agarias were free to engage extra labour; that there were no prescribed hours for work for them no master roll was maintained and the lessees did not control for how many hours a day or how many days a month the agarias will work. It was also admitted that the company had the right to supervise over the work of pan-holders as to the proper quality as per requirement of the company and as per the standard determined by the Government in the matter of salt. On these facts the Supreme Court came to the conclusion that the agarias were not independent contractors but workman within the meaning of the Industrial Disputes Act. An argument was raised in that case that as the agarias were under no obligation to work under fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate, the very basis on Which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. This argument was negatived by the Supreme Court which observed that a person can be a workman even though he is paid not per day but by the Job. The argument that the agarias could also engage other persons to work with them was destructive of their claim to be workmen was also negatived by the Supreme Court which observed that if a person who agrees himself to work and does so work and is, therefore, a workman does not cease to be such by reason mainly of the fact that he gets other persons to work along with him and that if a person has agreed to work himself he is a workman and that he takes assistance of the other persons would not effect his status, In the present case the evidence on record shows that a contract of building of quarters which had been taken by Respondent Gurbux Singh required white washing job to be done. It was this item which Respondent got performed from Gokal Ram on payment which was to be paid as per measurements. It was this item which Respondent got performed from Gokal Ram on payment which was to be paid as per measurements. AW2 who was also employed as a mason at the site has deposed that Gokal Ram was also working there; Even if, therefore, it be accepted that Gokal Ram was to be paid per measurement and he could have engaged some other" persons to help, yet as Gokal Ram had agreed to work personally he will not cease to be a workman as laid down in Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors. The Commissioner in coming to the conclusion that Gokal Ram had taken a contract for white washing from the Respondent relied on Ex. R3 which was a statement made by one Chatroo in the proceedings under Order 33 C. P. C. filed in 1964 before the Sub-judge, Third Class. Chatroo was not examined in the proceeding before the Commissioner and it is not understood on what principles of law could Ex. R3 be considered admissible evidence. It is well settled that a fact sought to be proved must be supported by the statement made in the presence of persons against whom it is made and that a statement made by a person cannot be treated as a substantive evidence unless that person appears and affirm the truth of that statement as a witness and is further available for cross-examination. Chatroo whose statement in Ex. R3 is relied upon by the Commissioner was not examined as a witness in the proceedings before him and his previous statement was merely a hearsay and it could not have been relied upon for holding that it had been admitted that Gokal deceased had taken the work of contract from Respondent. That a workman employed on the white washing the walls and ceiling of buildings, is a workman employed in the repair of building and is a workman within the meaning of the Act was held in Bachia Mistri Vs. Shanti, The onus of proving that an employee was a casual employee and was not in trade or business under the Act lies on employer vide Smt. Raj Rani W/o Jagdev Dutt and Anr. v. Firm Narsing Das Mela Ram and Anr. AIR 1964 p&h. 315 . 5. Mr. Shanti, The onus of proving that an employee was a casual employee and was not in trade or business under the Act lies on employer vide Smt. Raj Rani W/o Jagdev Dutt and Anr. v. Firm Narsing Das Mela Ram and Anr. AIR 1964 p&h. 315 . 5. Mr. Charya, the learned Counsel for the Respondent urged that the ratio of the case of Dharangadhra Chemical Works was not applicable as the definition of the workmen under the Industrial Disputes Act and that under the Workman Compensation Act is different. I do not find that principles laid down in Supreme Court to determine whether a person is a workman were given on any peculiar definition under Industrial Disputes Act. The case was decided on the broad principles as to what is a contract of service and under what circumstances a person can be said to be a workman or an independent contractor. The test laid down is that where there is a supervision control by one person over the work, done by the other, the latter is a workman and there is the contract of service. Mr. Charya referred me to U. Lir. Nyo. v. Ma Mya Khin and Ors. AIR 1940 Rang. 219 That case is clearly distinguishable because in that case it was held that the deceased was a mere licensee from the mine-owner and worked on his own account and not on account of the mine-owner though the licence could be revoked if all the conditions were not fulfilled. In that case it was observed that it is quite possible for a workman to be paid by piece work and still remain as employee with the management, but on the facts of that case it was held that there was no contract with the mine owner that licensee was to work under the contract of service and, therefore, it could not be held that they were workmen. The next case referred to by Charya was Mst. Hasbanness v. Quazi Zahiruddin Mohammad Barber 1963 (I) L.L.J. 593 In that case the deceased used to hire a taxi from the owner of the taxi-cab. He was free to take the taxi on hire to any place he liked and he used to ply wherever he liked. The next case referred to by Charya was Mst. Hasbanness v. Quazi Zahiruddin Mohammad Barber 1963 (I) L.L.J. 593 In that case the deceased used to hire a taxi from the owner of the taxi-cab. He was free to take the taxi on hire to any place he liked and he used to ply wherever he liked. There was no evidence to show as to whether he had to take and return the taxi at a particular time or whether he was free to come or not or whether he could remain absent for any number of days consecutively or otherwise. It was in that view that it was held that the taxi driver was not a workman employed by the owner. That case is quite distinguishable. I was also referred to- Golden Soap Factory (P) Ltd. Vs. Nakul Chandra Mondal, It is stated in that authority that an employer is he who controls the services of workmen and control the workmen in the manner of performing the work. It was also held that the Act should be given a benevolent construction and should be interpreted with sympathetic leniency. The purpose probably why this authority was referred by Mr. Charya was to show that under the Act a workman can recover compensation from his employer but an exception has been made in Section 12(1) which gives to workman a right to recover from a person who has entered into the contract with the workman's immediate employer and in that case Section 12(2) of the Act becomes operative and the principle who has engaged the contractor has a right to recover from the contractor by way of indemnity. The submission was that enough protection has been given under the Act to safeguard the workman of sub-contractor who may be entitled to recover compensation either from the sub-contractor or the principal contractor. I do not see how Section 12 has any relevancy to the point before me. If Gokal Ram was an independent contractor it is apparent that he would not be covered within the meaning of the Act. But if as I hold Gokal Ram was subject to the supervision control of Respondent he would be a workman and entitled to compensation from the Respondent. 6. The present case falls within the ratio of the case of Dharangadhra Chemical Works. But if as I hold Gokal Ram was subject to the supervision control of Respondent he would be a workman and entitled to compensation from the Respondent. 6. The present case falls within the ratio of the case of Dharangadhra Chemical Works. On the evidence it is clear that the deceased was to be paid by the measure of work performed by him. It is also clear that the contract was taken by Respondent and it was his trade and business and Gokal Ram was employed for the purpose of that. It also cannot be disputed that the respond dent had control over the nature and the quality of the work to be performed by the deceased. Surely it is not suggested that Gokal Ram was only to do three coats of white-washing of whatever quality without being answerable and subject to the control and supervision of Respondent as to the nature and quality of it. It is common practice that when people like deceased are employed to do particular work like white-washing the quoting and the quality of them is subject to the supervision and control by the contractor who alone is responsible to the department for execution of full contract including whitewashing. The Respondent could not have absolved himself of his liability by taking the plea that white washing was done by the deceased. I am thus satisfied that Gokal Ram was a workman within the meaning of the Act and it is not, therefore, possible to uphold the finding of the Commissioner on this issue. 7. Unfortunately as the Commissioner came to the conclusion that the deceased was not a workman he did not consider it necessary to find as to what compensation would be payable if deceased was a workman. It is true that the compensation that is claimed by the Appellant is on the basis of payment of fixed monthly wages of Rs. 125/- per mensem. But I have not believed that part of the story as in my opinion he was not employed on fixed pay of Rs. 125/- per mensem, but was to be paid on the basis of the measurement of work performed by him. Now the amount of compensation payable u/s 4 of the Act where death results from injury and the deceased was in receipt of monthly wages is shown in the first column of Schedule IV of the Act. 125/- per mensem, but was to be paid on the basis of the measurement of work performed by him. Now the amount of compensation payable u/s 4 of the Act where death results from injury and the deceased was in receipt of monthly wages is shown in the first column of Schedule IV of the Act. It was apparently by applying this that an amount of Rs. 7,000/- was claimed as that is the amount mentioned in Schedule IV if the monthly wages are between Rs. 100/- and Rs. 150/-. Monthly wages are defined in Section 5 of the Act to mean the amount of wages deemed to be payable for a month's service (whether the wages are payable by the month or by the month or by whatever other period or at place rates) and calculated in the manner given therein. As the Commissioner held that the deceased was not a workman he had no occasion to calculate the monthly wages of the deceased in terms of Section 5 because it is that section which will be applicable as the deceased was to be paid as per piece rates. I would, therefore, set aside the findings of the Commissioner on issue 1 and hold that the deceased was a workman within the meaning of the Act. 8. So far as the issue 2 is concerned, evidence is abundant and there is no escape from the conclusion that the deceased did die as a result of accident arising out of and in the course of his employment with the Respondent Issue 2 is decided in favour of the Appellants. As already indicated above, issue No. 3 regarding compensation was decided against Appellants because the Commissioner had found issue No. 1 against them. But as I have reversed the finding of issue No. 1, the result will be that the matter has to be remanded back to the Commissioner for deciding issue Nos. 3 and 4 and to give a finding as to the amount of compensation to which the Appellants are entitled. As a result of the above I would allow the appeal and set aside the finding of the Commissioner and remand the case as indicated above. In the circumstances the parties will bear their own costs. 9. 3 and 4 and to give a finding as to the amount of compensation to which the Appellants are entitled. As a result of the above I would allow the appeal and set aside the finding of the Commissioner and remand the case as indicated above. In the circumstances the parties will bear their own costs. 9. I need hardly mention that the matter has been pending for a number of years and one can only express the hope that the parties may instead of continuing the litigation after remand arrive at some arrangement to the mutual satisfaction.