JASIMUDDIN v. MOSST. HAFIZA BIBI — 1973 DIGILAW 26 (PAT)

JUDGMENT : Shambhu Prasad Singh, J. These two appeals are under Section 30 of the Workmen's Compensation Act (hereinafter referred to as 'the Act'). Questions which arise for decision in the two appeals are the same and the ORDER :s which are subject matter of appeals are also identical. The appellant in both the appeals is the same person. Hence they have been heard together and are being disposed of by this common JUDGMENT :. 2. The appellant got dug up a well more than 35 feet deep within the compound of his residential house. He was getting the walls of the well plastered. For this purpose he had engaged several masons and labourers. Safizuddin and SK. Mannan were two of these masons. They were working on wages at the rate of Rs. 4.50. P. per day with food in kind three times a day. After they had continuously worked for 8 days, on 30th of April, 1965, at about 4 p.m. while they were working inside the well at a depth of 35 feet, the earth of the well started collapsing. They raised an alarm for dropping a rope inside the well, but that could not be done for want of adequate arrangement. They were buried in the well due to collapse of the earth. When their bodies were ultimately taken out on 2nd of May, 1965, at about 4. P. M., they were found dead. Hafiza Bibi and Khojani Bewa, widows of Safizuddin and SK. Mannan respectively, made applications before the Commissioner under the Act at Pakul in the district of Santhal Parganas praying that they and their children who were dependent on them may be allowed compensation as contemplated under the Act. The petitions were filed on 13th of September, 1965. The petition of Hafiza Bibi was registered as Workmen's Compensation Case No.2 of 1965 and that of Khojani Bewa as Workmen's Compensation Case No.1 of 1965. 3. After Service of notice on him, appellant appeared before the Commissioner and filed his show cause in both the cases alleging that the dispute had' been settled amicably by paying compensation to the widows for which each of them executed an Ekrarnama admitting the full satisfaction of her claim. The Ekrarnamas which are on the record show that the compensation paid to the two widows was Rs. 250/- each. 4. The Ekrarnamas which are on the record show that the compensation paid to the two widows was Rs. 250/- each. 4. At the time of the hearing of the petitions, the widows denied to have received any compensation and made out a case that the Ekrarnamas were fraudulently obtained. Both parties led evidence in support of their cases. 5. The learned Commissioner bas held as follows : (i) The widows and their children were entitled to get compensation. (ii) The compensation allegedly paid to the widows was inadequate and such a com promise outside court was not permissible in view of Section 8(1) of the Act. (iii) The onus was on the appellant to prove that the nature of the employment of the two masons who died was casual and he having led no evidence to prove it, they were workmen within the meaning of the definition of the term in the Act. (iv) The widows were entitled to a compensation of Rs. 6,700/- 'each. 6. Miscellaneous Appeal No. 73 of 1969 arises out of Workmen's Compensation Case No.2 of 1965. The other Miscellaneous Appeal No. 74 of 1969 arises out of Workmen's Compensation Case No. 1 of 1965. 7. Mr. Kailash Rai, appearing for the appellant in both the appeals, has made the following submissions: (a) The deceased husbands of the respondent in each of the appeal were not workmen for (i) they were not employed for the purposes of the appellant's trade or business; (ii) their employment was of casual nature and (iii) they were not employed in any capacity as specified in Schedule II. The Commissioner has wrongly placed the onus on the appellant to prove that the employment of the deceased masons was of casual nature; it was for the claimant to prove that the deceased were workmen. (b) In view of the fact that there was an agreement between the appellant and the respondent of each of the appeal, the Commissioner had no jurisdiction to proceed with the determination of the amount of compensation under Section 19 of the Act. (c) In this case monthly wages of the deceased masons could be calculated only under Section 5 (b) of the Act and the respondent in each of the appeals having failed to place the necessary materials on the records for the purpose, no compensation could be awarded to them. (d) The compensation awarded was excessive. (c) In this case monthly wages of the deceased masons could be calculated only under Section 5 (b) of the Act and the respondent in each of the appeals having failed to place the necessary materials on the records for the purpose, no compensation could be awarded to them. (d) The compensation awarded was excessive. The arguments between the appellant and the respondent of each of the appeals could not be ignored and, at any rate, in absence of a finding that the agreements were fraudulent, the Commissioner ought to have deducted a sum of Rs. 100/- horn the compensation determined by him. 8. Mr. Rash Bihari Singh for the respondents has contended that there is no substance in any of the aforesaid submissions of learned counsel for the appellant. According to him, the deceased husbands of the respondents were workmen for they were employed in capacity as specified in Clause (xvi) of Schedule II of the Act. He has urged that a person employed in any capacity as specified in Schedule II is a workman even if he is not employed for the purposes of employer's trade or business if the employment is not of casual nature, and that in the instant case, the nature of employment of the deceased husbands of the respondents under the appellant cannot be held to be casual, specially when he has led no evidence to show casual nature of the employment. He has submitted that the onus was on the appellant to prove that the nature of employment was casual. He has further contended that Section 19 of the Act was no bar to the Commissioner proceeding with determination of the amount of compensation as he has held that the amount of Rs. 250/- allegedly paid to the respondents in each of the appeal as compensation was inadequate and that the amount of monthly wages was to be calculated in this case under Section 5 (c) and not 5 (b) of the Act. He has also urged that the compensation awarded by the Commissioner was not excessive and the Commissioner has rightly refused to deduct even a sum of Rs. 100/- from the compensation determined by him in each case as he was not inclined to accept the case of the appellant about payment of compensation. 9. "Workman" has been defined in Section 2 (1) (n) of the Act. 100/- from the compensation determined by him in each case as he was not inclined to accept the case of the appellant about payment of compensation. 9. "Workman" has been defined in Section 2 (1) (n) of the Act. The definition 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." According to learned counsel for the respondents, 'and' between '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' has been used conjunctively, and therefore, both the conditions must co-exist to take out an employee from the definition of workman. In other words, according to Mr. Sinha, a person employed for the purposes of employer's trade or business is a workman even if his employment is of casual nature and similarly a person whose employment is not of casual nature is a workman even if he is employed otherwise than for the purposes of Employer's trade or business. He has contended that if the definition has to be interpreted otherwise than as submitted by him, there was no necessity of having the words 'a person whose employment is of a casual nature in it. In support of his contention, he bas drawn our attention to the fact that the expression 'in connection with the employer's trade or business has been used in Clause (iv) of Schedule II of the Act and no such expression has been used in any of the other clauses of that Schedule, and bas urged that this shows that so far other clauses of Schedule II are concerned, the employee is a workman even if his employment is not in connection with the employer's trade or business. On the other hand according to learned counsel for the appellant, the Act is to apply only to cases of such employers who do some trade or business. It is not intended to apply to employers not doing any trade or business. He has relied on the statements of objects and reasons for the enactment of the Act as published in the Gazette of India, dated September 16, 1962. It is not intended to apply to employers not doing any trade or business. He has relied on the statements of objects and reasons for the enactment of the Act as published in the Gazette of India, dated September 16, 1962. In Clause 6 of the statements of objects and reasons it is stated that two criteria, namely, "(i) that the bill should be confined to industries which are more or less organised; (ii) that the workmen whose occupation is hazarducus" were followed in the determination of the classes to be included and specified in Schedule II. Learned counsel for the appellant has also drawn our attention to various clauses of Schedule II and has taken pains to point out that nature of employment referred to therein are possible only in trade and business. It is now well established by judicial decisions that the expression 'and' in the definition connecting two conditions as to the casual nature of employment and employment otherwise than for the purposes of employer's trade or business had been used conjunctively. The decisions are (1) T. N. Sitharama Reddiar V.A. Ayyaswami Gounder (A.I.R. 1956 Madras 212, (2) Ghasiram Motiram Kulmi and others V. Smt. Nannibai Nathulal and another (A.I.R. 1960 Madhya Pradesh 267), (3) Madanlal V. Mangali (A.I.R. 1961 Rajasthan 45) and (4) Adabala Pattabhiramiah and others V. Yaleti Padmaraju : [1972] 42 Factories Journal Reports 344. It may be stated here that in Section 13 of the Workmen's Compensation Act, 1906 of Great Britain, which also defined the expression 'workman', the language used was identical to the language used in the defil1ition of the expression in the Act. In (5) Manton V. Cantwell (1920 Appeal Cases 781), the House of Lords held that even a casual labourer employed for the purposes of the employer's trade or business was entitled to compensation under the Act for the injury suffered by him during the course of employment. In other words, the Law Lords held that both the conditions must be fulfilled for excluding a person from the definition of workman. This case also supports the view that the expression 'and' has been used conjunctively. It indirectly follows from these decisions that mere employment otherwise than for the purposes of employer's trade on business is not enough to exclude a person from the definition of workman. This case also supports the view that the expression 'and' has been used conjunctively. It indirectly follows from these decisions that mere employment otherwise than for the purposes of employer's trade on business is not enough to exclude a person from the definition of workman. If mere such in employment would have been enough to exclude a person from the definition the legislature would not have imposed the other condition about the casual nature of the employment in it. In my opinion, therefore, the contention of learned counsel for the respondents that a person employed otherwise than for the purposes of employer's trade or business may also be a workman for the purposes of the Act prima facie appears to be correct. The plain interpretation following from the language of the definition cannot be ruled out merely on account of the passage in the statements of objects and reasons relied on by learned counsel for the appellant. Further, it may not be possible to hold that the construction put upon that passage by learned counsel for the appellant is correct. The passage do{s not necessarily mean that only such classes of employers were included in Schedule II who fulfilled both the criteria. Fulfillment of anyone of the two criteria was sufficient for inclusion in the Schedule. Classes of such employees whose occupation was not hazardous have been included in the schedule if the industries in which they were employed were more or less organised. However, for the purposes of these appeals, I do not consider it necessary to record a definite finding on the question discussed above. 10. The conditions mentioned in the definition of 'workman’ if fulfilled, take out an employee outside the scope of the definition are in the nature of exceptions. Therefore, the onus is on the person who wants to rely on the expectations to prove that the employee is not a workman. This is also well established by various decisions of different High Courts of the country. Reference may be made to decisions in (6) Ebrahim Haji Jusab V. Jainibi Anuddin (A.I.R. 1933 Bombay 270) and in (3) Madanlal's case, already referred to above, wherein it bas been held that it is for the employer to prove that the nature of employment is casual. Reference may be made to decisions in (6) Ebrahim Haji Jusab V. Jainibi Anuddin (A.I.R. 1933 Bombay 270) and in (3) Madanlal's case, already referred to above, wherein it bas been held that it is for the employer to prove that the nature of employment is casual. It was, therefore, for the appellant to place materials on the record to show that the two deceased masons were employed otherwise than for the purposes of the appellant's trade or business. Learned counsel for the appellant bas submitted that even though the appellant has failed to place any material on the record to show that the deceased masons were employed otherwise than for the purpose of appellant's trade or business; in view of the statement in the petition for compensation that the well was dug up within the compound of the residential house of the appellant, it should be' held that the digging of the well was not for the purposes of employer's trade or business. The mere fact that the well was dug up in the compound of the residential house by itself cannot prove that it was not for the purposes of the appellant's trade or business. Had the appellant taken up a plea in his show cause that the well was not dug up for the purposes of his trade and business or led evidence to show that it was not for the purposes of his trade and business, the respondents could have also led evidence in rebutal to show that the digging of the well was for the purposes of appellant's trade and business. In my opinion, therefore, on the materials on the record, it is not possible to accept the argument advanced on behalf of the appellant for the first time before this Court that the two deceased masons were employed otherwise' than for the purposes of the appellant's trade and business and, therefore, they were not workmen within the meaning of the term as defined in the Act. 11. For the reasons discussed in the preceding paragraphs it has to be held that the Commissioner was right in observing that the onus was on the appellant to prove that the nature of employment of the two masons who died was casual. 11. For the reasons discussed in the preceding paragraphs it has to be held that the Commissioner was right in observing that the onus was on the appellant to prove that the nature of employment of the two masons who died was casual. In view of failure of the appellant to place any material on the record to show that the nature of the employment of the two masons was casual, the Commissioner has also rightly held that their employment was, not casual. Learned counsel for the appellant is not correct in submitting that the Commissioner has wrongly placed the onus on the appellant in this behalf. He has relied on the decision of the Supreme Court in (7) Mackinnon Mackenzie & Co. Private Ltd. V. Ibrahim Mahommad Issak (A. I. R. 1970 Supreme Court 1960). On the basis of this decision it may be said that onus to prove that the employee was covered by Clauses (i) and (ii) of the definition and, therefore, a workman was on the claimant. But it does not at all give any support to the contention of learned counsel for the appellant that the onus to prove that he was not covered by any of the two conditions of the exception and, therefore, was a workman is also on the claimant. This decision, therefore, in no way can be said to have overruled the decisions of the High Courts referred to above according to which the onus to prove the exceptions is on the employer. 12. Learned counsel for the appellant has argued that since according to the case of the respondents themselves, the two masons were employed for 8 days only before the incident, it should be held that nature of their employment was casual. The answer to the question whether the nature of employment is casual or not does not depend on the length of the period of the employment. What is casual employment bas been fully discussed in the decisions in (1) T. N. Sitbarama Keddiar's and (4) Adabala Pattabhiramiah's cases which have already been referred to earlier and respectfully agree with the observation of learned Judges of those decisions that casual employment is employment necessitated by chance circumstances. What is casual employment bas been fully discussed in the decisions in (1) T. N. Sitbarama Keddiar's and (4) Adabala Pattabhiramiah's cases which have already been referred to earlier and respectfully agree with the observation of learned Judges of those decisions that casual employment is employment necessitated by chance circumstances. In Hughes V. Walker (Butterworths' Workmen's Compensation Cases, Vol, XIX, page 79) it has been pointed out by the court of appeal that "casual" is used antithetically to "regular" and a man employed at a rate of wages, whether determined by the hour, by the week or by the day might well be found to be engaged in a employment that was not of a casual nature. The appellant having failed to prove that the employment of the two deceased masons was necessitated by chance circumstances, it is not possible to differ from the finding of the Commissioner that the nature of the employment was not casual. 13. In my opinion, learned counsel for the respondent is also correct in his submission that the two deceased masons were employed in such a capacity as is specified in Clause (xvi) of Schedule II. The clause fans as follows :- "employed in the making of the excavation in which on' anyone day of the preceding twelve months more than twenty-five persons have been employed or explosives have been used, or whose depth from its highest to its lowest point exceed twelve feet". Learned counsel for the appellant has submitted that digging up of a well may be digging an excavation, but building of a wall inside the well or plastering the wall cannot be said to be making an excavation. Hence, according to him, employment for plastering of a wall in the well is not employment in the capacity specified in Clause (xvi) of Schedule II. In the Supreme Court decision, (7) Mackinnon Mackenzie & Co.'s case, relied on by learned counsel for the appellant himself in other connection, it has been held that the words 'in the course of the employment' mean, in the course of the work which the workman is employed to do and which is incidental to it'. In the Supreme Court decision, (7) Mackinnon Mackenzie & Co.'s case, relied on by learned counsel for the appellant himself in other connection, it has been held that the words 'in the course of the employment' mean, in the course of the work which the workman is employed to do and which is incidental to it'. In (8) Koynabai V. Bombay Municipal Corporation (A.I.R. 1938 Bombay 155), it has been held that wide interpretation has to be given to expressions used in various clauses of Schedule II of the Act and that employment of coolies to guard instrument during night was employment for the purpose of 'working of pipeline' specified in Clause (ix) of that Schedule. In (2) Ghasiram Motiram Kulmi's case and (4) Adabala Pattabhiramiah's case, already referred to above, it has been specifically II held that a mason employed in plastering the wall of a freshly dug up well of prescribed depth or for construction 'of a protective wall around the well would be covered by Clause (xvi) of Schedule II. In my opinion, if I may say so with respect, their Lordships are correct in holding that construction of a protective wall or its plastering is incidental to excavation of a well and, therefore, covered by Clause (xvi) of Schedule II of the Act. The Act has been passed for the benefit of the employee or his dependents and its Expressions are to be given wide interpretation. They are not to be interpreted narrowly to defeat their claims which may otherwise be found just. I, therefore, do not find it possible to accept the contention of learned counsel for the appellant that the deceased masons were not workmen as they were not employed in a capacity as specified in Schedule II of the Act. 14. Appeals against ORDER :of a Commissioner appointed under the Act lie to this Court under Section 30 of the Act. 14. Appeals against ORDER :of a Commissioner appointed under the Act lie to this Court under Section 30 of the Act. After enumerating the ORDER :s against which an appeal lies to this Court, the section provides -- "Provided that no appeal shall lie against any ORDER :unless a substantial question of law is involved in the appeal, and, in the case of an ORDER :other than an ORDER :such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees” It is manifest from this Proviso that no appeal lies to this Court on questions of fact. An appeal does not lie to this Court even on a question of law unless the question is substantial. By enacting this proviso, the legislature wanted to emphasise that ordinarily ORDER :s passed by the Commissioner under the Act should not be interfered with. Apart from their merits the questions raised by learned counsel for the appellant are not substantial questions of law so as to justify an interference by this Court under Section 30 of the Act. 15. Section 19 (1) of the Act runs as follows :- "If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is not or is a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner." The Commissioner derives his jurisdiction to settle the amount of compensation under this Section. It has been submitted by learned counsel for the appellant that jurisdiction of the Commissioner to settle compensation under Section 19(1) of the Act arises only in default of an argument and as there were agreements in the two cases with which we are concerned in the two appeals, the Commissioner could not proceed with the settlement of compensation. In answer to this argument, learned counsel for the respondents has drawn our attention to Section 28 (1)(d) of the Act which empowers the Commissioner to refuse to recognise certain agreements on grounds mentioned in that section. In answer to this argument, learned counsel for the respondents has drawn our attention to Section 28 (1)(d) of the Act which empowers the Commissioner to refuse to recognise certain agreements on grounds mentioned in that section. When the compensation is payable to a woman or a person under a legal disability, the commissioner may refuse to recognise agreement on account of the inadequacy of the sum which is to be paid as compensation according to the agreement. In this case the Commissioner has found that the sums which were payable to the respondents under the agreements were inadequate. Thus, there is no substance in the second contention of learned counsel for the appellant as to jurisdiction of the Commissioner to proceed with the determination of the amount of compensation. 16. Section 5 of the Act provides for method of calculating wages and defines monthly wages. Thus, there is no substance in the second contention of learned counsel for the appellant as to jurisdiction of the Commissioner to proceed with the determination of the amount of compensation. 16. Section 5 of the Act provides for method of calculating wages and defines monthly wages. It runs as follows :- 'In this Act and for the purposes thereof the Expression 'monthly wages' means the amount of wages deemed to be payable for a month's service whether the wages are payable by the month or by whatever other period or at piece rates, and calculated as follows, namely :- (a) where the workman has, during a continuous period of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation, the monthly wages of the workman shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of the period: (b) where the whole of the continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the workman shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a workman employed on the same work by the same employer, or, if there was no workman so employed, by a workman employed on similar work in the same locality ; (c) in other cases including cases in which it is not possible for what of necessary information to calculate the monthly wages under Clause (b), the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately precedil1g the accident from the employer who is liable to pay compensation divided by the number of days comprising such period." It is manifest that Clause (a) of it does not apply to the present case. According to learned coul1sel for the appellant, Clause (b) is applicable to the present case. According to learned counsel for the respondents, it is Clause (c) which is applicable. According to learned coul1sel for the appellant, Clause (b) is applicable to the present case. According to learned counsel for the respondents, it is Clause (c) which is applicable. Ordinarily Clause (b) will go attracted to cases like those which are before us, but learned counsel for the respondents contends that to remove the difficulty which was experienced in fixing the monthly wages under Clause (b), Clause (c) was amended by Act 8 of 1959 by adding the words "including cases in which it is not possible for want of necessary information to calculate the monthly wages under Clause (b)" after the words "in other cases" in Clause (c). According to learned counsel for the appellant, in spite of the amendment Clause (b) will apply to these cases inasmuch as no evidence has been led before the Commissioner that necessary information for calculating monthly wages under Clause (b) were not available. On the other hand, learned counsel for the respondents contends that the calculation is to be made by some authority and if necessary information’s are not available to him fop whatever reasons, be it for want of evidence or for any other reason. he will be entitled to calculate the monthly wages under Clause (c). As observed earlier, the provisions of the Act are to be interpreted widely for the benefit of the employees and their dependents. In the circumstances. I am inclined to accept the contention of learned counsel for the respondents that Clause (c) of Section 5 was attracted to these cases and the Commissioner has not committed any error in calculating monthly wages in accordance with the provisions of that clause for the purpose of determining compensation. This disposes of third contention of learned counsel for the appellant. 17. Coming now to the last contention of learned counsel for the appellant. I find that there is no merit in his submission that the compensation awarded was excessive. The basis for that submission was that there was an agreement which could not be ignored by the Commissioner and that he could not calculate monthly wages according to Section 5 (c) of the Act. Both these contentions having been rejected, I find no merit in the argument that the compensation awarded was excessive. The basis for that submission was that there was an agreement which could not be ignored by the Commissioner and that he could not calculate monthly wages according to Section 5 (c) of the Act. Both these contentions having been rejected, I find no merit in the argument that the compensation awarded was excessive. However, there appears to be substance in his contention that in absence of a finding that they were fraudulent, the agreements between the appellant and the respondents of each of the appeals could not be ignored for deducting a sum of Rs. 100/- from the compensation determined by the Commissioner. Section 8 of the Act deals with the determination of the compensation Sub-section (1) of it says that no payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal die ability, shall be made otherwise than by deposit with the Commissioner and no such payment made directly by an Employer shall be deemed to be a payment of compensation. But there is a proviso to this Sub-section, according to which in the case of a deceased workman, an employer may make to any dependent advances on account of compensation not exceeding an aggregate of one hundred rupee and so much of such aggregate as does not exceed the compensation payable to that dependent shall be deducted by the Commissioner from such compensation and repaid to the employer. In absence of a finding by the Commissioner that the agreements were fraudulent, the employer was entitled to repayment from the legal representatives of the two deceased masons a sum of Rs. 100/which was paid under the agreements. Since this amount has not been repaid, a sum of Rs. 100/- can be deducted from the amount of compensation determined by the Commissioner in each case. Even though it may not be a substantial question of law, I reduce the compensation in each case by Rs. 100/-. In the result the widows of the two masons are held entitled to a compensation of Rs. 6,00/- each only and not Rs. 6,700/- each as ORDER :ed by the Commissioner. 18. The appeals succeed to the extent indicated above and they are allowed in part, but, in the circumstances, without costs. MUKHARJI, J. I agree. Appeal allowed In part.