Judgment This appeal is filed by the Shetkari Sah.Sangh, Kopargaon challenging the judgment and award passed by the Judge, Labour Court, Ahmednagar in W.C.No.74/1997 dated 04/04/2003. 2. Few undisputed facts which can be summarized as follows : The respondents herein i.e. wife of deceased Nivrutti Deshmukh respondent no.1, mother of deceased/respondent no.4 and the minor children of deceased Nivrutti have filed an application for compensation u/s. 22 of The Workmen's Compensation Act as deceased Nivrutti Deshmukh, who was admittedly in the service of appellant Shetkari Sahakari Sangh, as a clerk and was also doing the duties of Record Keeper, Godown keep and looking after collection of adat for the Shetkari Sah.Sangh. On 02/08/1996, he was allegedly deputed by the Shetkari Sangh to collect the demand drafts and delivery invoices from the customers at Kopargaon. He travelled to Kopargaon on his motor-bike and on his way back to Shrirampur, around 4.00 p.m. or so, he felt pain in his chest and thereafter sustained cardiac attack and expired on the spot. Accordingly a report was lodged with the police. At the hospital, he reported to be dead. It is alleged by the respondent/dependants of deceased Nivrutti that as the death was occurred during the course of employment, they have filed an application for compensation u/s. 22 of The Workmen's Compensation Act. 3. On notice, appellant appeared before the Judge, Labour Court, who was holding charge of the Commissioner under the Workmen's Compensation Act and contested the claim mainly on the ground that as deceased was working with the appellant as a clerk, his case does not cover under the ambit of Workmen's Compensation Act. It is also averred that the respondents are not dependants of the deceased hence not entitled for the compensation as prayed for. 4. During the pendancy of the application before court below, application was amended by amending para no.1-A of the main petition u/s. 22 as in the original claim petition, the respondents have claimed that deceased was in the service of appellant as clerk. By introducing the amendment by para no.1A to the petition, it is alleged that the petitioner was also doing the work as Godown keeper, Record keeper and looking after the work of collection of adat from the various customers. When he was deputed on this duty, the incident occurred, hence they are entitled for compensation. By introducing the amendment by para no.1A to the petition, it is alleged that the petitioner was also doing the work as Godown keeper, Record keeper and looking after the work of collection of adat from the various customers. When he was deputed on this duty, the incident occurred, hence they are entitled for compensation. In the additional written statement filed by the appellant herein, it is stated that deceased was not authorized to use his motor-cycle for the collection of the dues from various customers as their office used to pay him ST fair to do this job and if the deceased has used his motorbike and sustained cardiac attack, then the appellant is not responsible for the same. In the substance, it is prayed to dismiss the application. 5. Issues were framed by the Trial Court at Exh.3 including the maintainability of the petition. After recording oral as well as documentary evidence, learned Trial Court had concluded that the case of the deceased is covered under the provisions of the Workmen's Compensation Act and allowed the petition for compensation, which judgment is impugned in this appeal. 6. I have heard respective learned counsels for the parties. Considering these submissions across the bar, and as per the provisio to section 30(1) of The Workmen's Compensation Act, 1923 (hereinafter referred as The Act of 1923) that in the appeal preferred u/s. 30 of The Act of 1923, the appeal is maintainable only on the point of "a substantial question of law if is involved". Bearing in mind this legal provision, points arise for consideration are 1) Whether deceased Nivrutti was a workman within the scope of definition u/s. 2(1)(n) r/w. Schedule (II) of The Act of 1923? 2) What order? 7. Bearing in mind this legal provision, points arise for consideration are 1) Whether deceased Nivrutti was a workman within the scope of definition u/s. 2(1)(n) r/w. Schedule (II) of The Act of 1923? 2) What order? 7. As to point no.1 : To consider whether deceased Nivrutti is a Workman within the scope of section 2(1)(n) r/w. Schedule (II) of The Act of 1923, it is necessary to go through the definition of the Workman u/s. 2(1)(n) and for this, it is necessary to reproduce the same section, which reads as follows : "Section 2(1)(n) :"Workman" means any person, who is - (i) a railway servant as defined in (clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989)), not permanently employed in any administrative, district or sub-divisional office of 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, include a reference to his dependants or any of them. SCHEDULE II : List of persons who, subject to the provisions of Section 2(1)(n), are included in the definition of workmen. SCHEDULE II : List of persons who, subject to the provisions of Section 2(1)(n), are included in the definition of workmen. The following persons are workmen within the meaning of Sec.2(1)(n) and subject to the provisions of that section, that is to say, any person who is - (i) employed, otherwise than in a clerical capacity or on a railway, in connection with the operation, (repair) or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle ; or (ii) employed, otherwise than in a clerical capacity, in any premises wherein or within the precincts whereof a manufacturing process as defined in the Cl. (k) of Section.2 of the Factories Act, 1948 (63 of 1948), is being carried on, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, (whether or not employment in any such work is within such premises or precincts) and steam, water or other) mechanical power or electrical power is used;" 8. In view of the definition of "Workman" as stated above, in which the words are specifically used "otherwise than any clerical capacity" the facts pleaded and accepted by the Lower Court are required to be considered. 9. In para no.1 of the application filed before the Court below, it is stated by the respondents herein that deceased Nivrutti was serving with the appellant as a Clerk. By amending para no.1A, it is stated that he was also rendering services with the appellant Sangh as Record Keeper, Godown Keeper and looking after the maintenance of record and collection of adat. These facts are not disputed by the appellant in their written statement, so also in the evidence recorded before the Lower Court. Now the question arose whether the job assigned or the post, on which deceased Nivrutti was appointed by the appellant/Sangh, whether covered within the definition of section 2(1)(n) r/w. (i) and (ii) of Schedule (II) of the Act of 1923. Now the question arose whether the job assigned or the post, on which deceased Nivrutti was appointed by the appellant/Sangh, whether covered within the definition of section 2(1)(n) r/w. (i) and (ii) of Schedule (II) of the Act of 1923. In this light, the observations of the learned Trial Court in para no.31 wherein the Trial Court has placed reliance on the ruling reported in 1961-II-LLJ-94 in the matter of May & Baker versus Their Employees, wherein it is observed that Law is laid down in the judgment of the Bombay High Court in that matter and what is laid down is quoted in para no.31. 10. According to me, observations made in para no.31 were not properly read and not properly construed by the Court below. The judgment cited supra is the judgment of the Full Bench of the Supreme Court and not a judgment of the Bombay High Court. Secondly, it is the judgment of the Full Bench of the Supreme Court in Civil Appeals No.319 and 320 of 1960 in the matter of May & Baker versus Their Employees. These observations of the Hon'ble Supreme Court in the matter of Workman u/s. 2(s) as contemplated under the Industrial Dispute Act r/w provisions of Termination of Service u/s. 25(f) under the Industrial Dispute Act r/w provisions under the Delhi Shop and Establishment Act and has nothing to do with the provisions as to who is the "workman" within the scope of Act of 1923. 11. Thus the fact is clear that the opinion formed by the Trial Court is fortified from the law laid down and the observations made in para no.31 of the judgment impugned are not based in view of the citation and the law laid down therein by the Supreme Court. 12. Perusal of the oral and documentary evidence laid by the parties and the finding recorded to that effect which is a finding on fact, cannot be construed as it is based on proper appreciation of the definition of the "Workman" as contemplated under the provisions of the Act. But the fact is clear from the oral and documentary evidence tendered before the Court below that the evidence is not sufficient to establish that the case of deceased Nivrutti is covered within the scope of the Act of 1923 as stated above. 13. But the fact is clear from the oral and documentary evidence tendered before the Court below that the evidence is not sufficient to establish that the case of deceased Nivrutti is covered within the scope of the Act of 1923 as stated above. 13. Second aspect required to be considered in this appeal is what are the outer duties of the employee working with the employer whose official job is to sit in the office At this juncture, it is useful to advert to the observations of the Division Bench of this Court in the matter of Shrinath J.Balwar versus Municipal Corporation of Greater Bombay and another, 1992 ACJ 1053, wherein it is observed in para no.10 and 11 that, "10. Bare perusal of some of the entries in Schedule II of the Act would show that the occupations where by the nature of their work the workmen are not likely to suffer any injury by accident or suffer any occupational diseases such as work of clerical nature are specifically excluded from the entries in Schedule II of the Act, See Clauses (i), (ii), X, XIV, XXX and XXXIII of the said Schedule II of the Act. In interpreting the expression "out-door work" used in Clause (2) of Schedule II of the Act it has therefore, to be borne in mind that the scheme of the Act shows that for conferring the benefits there under it intends to cover hazardous employments only." "11. The ordinary dictionary meanings of the expression "out-door" contained in Oxford dictionary and Webster's dictionary are as follows: Oxford Dictionary : " 1. That is done, exists, lives, or is used, out of doors, without the house, or in the open air." Webster's Dictionary : " done or used outside the house of, in or characteristic of the open air." "The said dictionary meaning shows that the expression "out-door" means what is done or used outside the house or in open air. It is clear from the meaning of the above expression "out-door" that if the work is done in the house or alcabin or a covered enclosure as in the instant case or as in the offices such work is not intended to be covered by the expression "out-door work" used in Clause (2) of Schedule II of the Act. It is clear from the meaning of the above expression "out-door" that if the work is done in the house or alcabin or a covered enclosure as in the instant case or as in the offices such work is not intended to be covered by the expression "out-door work" used in Clause (2) of Schedule II of the Act. The reason is obvious that when the employees are working within the office or the cabin or in a place, having roof above their place of employment there is no likelihood of they being exposed to any danger or being prone to accident unless the said work is of such a nature as is covered by the other entries in Schedule II of the Act where the work carried out in close enclosure or building itself is dangerous, hazardous or prone to accident. As already pointed out the said entries in the Schedule II of the Act themselves exclude clerical work and thus provide an intrinsic evidence to show that such work is not hazardous or prone to accident." On bare perusal of the observations of the Division Bench which are cited in paragraph supra, even though the deceased Nivrutti was deputed for the work of collection of demand drafts and delivery invoices from outside station, his case will not cover within the scope of Schedule (II) annexed to section 2(1)(n) of the Act of 1923. 14. Further it is necessary to advert to the observations of this Court in the matter of Vijaya Ramesh Barve and others versus Bank of Maharashtra and another, 2010 (Suppl.) Bom.C.R. 529 wherein in para no.6, it is observed in para no.6 that, "Thus, under Clause (ii) of section 2(1)(n) of the said Act, if a person is employed in a capacity specified in Schedule II, he would be covered by the said Act. On a perusal of Schedule II which includes the list of persons who, subject to the provisions of section 2 (1)(n) of the said Act, are included in the definition of "workman" does not include workmen who are employed in a clerical grade. In fact, almost all the entries indicate that a workman working in a clerical capacity is specifically excluded from the definition of 'workman'. In fact, almost all the entries indicate that a workman working in a clerical capacity is specifically excluded from the definition of 'workman'. Thus, when admittedly deceased was working in a clerical capacity, albeit as a Machine Operator, he would not be entitled to compensation under the said Act." Considering all these facts and the law laid down, case of deceased Nivrutti does not cover under the scope of "Workman" as contemplated under the Act of 1923. In view of this, negative finding to be recorded to point no.1. 15. As to point no.2 : As finding is recorded on point no.1 in the negative, then the dependants of deceased Nivrutti are not entitled for compensation u/s. 22 of The Workmen's Compensation Act. 16. In the substance, appeal succeeds. The judgment and award impugned is hereby quashed and set aside. No order as to costs. 17. As at the time of admission of appeal, appellant has deposited the amount of award impugned, as per statutory provisions, the appellant is entitled for refund of the same before the Court below. It is further informed that the respondents have withdrawn an amount of Rs.1,00,000/-by virtue of order in CA No.8091/2003, dated 24/09/2003. The respondents to refund the same amount to the appellant within the period of 8 weeks from today. 18. It is hereby made clear that even though the application filed for compensation under the Act of 1923, by the dependants of deceased is rejected, the dependants are not precluded to pursue their rights, if available in any other Law.