JUDGMENT 1. - This miscellaneous appeal under Section 30 of the Workmen' Compensation Act, 1923 (hereinafter 'the 1923 Act') has been filed by the non claimants District Project Coordinator, District Primary Education Programme, Sawai Madhopur (hereinafter 'the non claimants') against the judgment dated 31-3-2008 passed by the Workmen' Compensation Commissioner, Sawai Madhopur (hereinafter 'the Commissioner'), whereby the Commissioner has found the respondents claimants (hereinafter 'the claimants') entitled to compensation for a sum of Rs. 2,22,196/- along with interest at the rate of 12% from 11-6-2007 the date of filing the claim petition. 2. The only contention of the counsel for the appellant is that the deceased Sohan Lal was not a workman as defined in extant Section 2 (n)of the Act of 1923. 3. Heard learned counsel for the parties and perused the impugned judgment dated 31-3-2008. 4. Section 2 (n) of the 1923 Act, at the relevant time to the accident was defined as under:- 2. (n) workman means any person who is- (i) a railway servant as defined in clause (34) of Section 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 (ia) (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 dependents or any of them. 5. 5. Learned counsel for the non claimants submitted that the deceased was not employed in any capacity permanent/ temporary covered under Schedule-II read with Section 2 (n) of the 1923 Act. He submits that from clause (viii) of the second schedule of the 1923 Act it is apparent that a person employed in respect of "construction, maintenance, repair or demolition of any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more than ground level to the top of the roof, "can be an employee" under the 1923 Act. It was submitted that it was incumbent upon the claimants to lead evidence with regard to deceased Sohan Lal being workman on the said parameters. No such averment was made in the claim petition or evidence led, yet the Commissioner awarded the compensation of Rs. 2,22,196/- to the claimants. 6. Mr. L.L. Gupta, learned counsel for the claimants has submitted that it was for the appellant non claimants to take its defence with regard to deceased Sohan Lal not being workman. This was not done before the Commissioner. The only defence taken by the non-claimants before the Commissioner was that the deceased Sohan Lal was a casual worker and therefore not covered under Section 2(n) of the 1923 Act. Counsel further submitted that subsequent to amendment of 8-12-2000 casual workers included in the category of workman and hence the defence taken was of no avail. 7. This court has also been informed that pursuant to order dated 9-9-2009 passed by this court fifty percent award amount has been disbursed to the claimants while the remainder is in FDRs. 8. Be that as it may, the substantial question of law which arises in this appeal is as to whether the deceased Sohan Lal was a workman. It is no doubt true that before the claim petition under Section 22 of the 1923 Act for an injury/ death of a workman could be maintainable it would be for the claimant to prove that the injured/ deceased was a workman. This aspect of the matter however appears to have escaped the notice of the Commissioner. It is no doubt true that before the claim petition under Section 22 of the 1923 Act for an injury/ death of a workman could be maintainable it would be for the claimant to prove that the injured/ deceased was a workman. This aspect of the matter however appears to have escaped the notice of the Commissioner. As to whether the injured/ deceased was a workman would be a matter of evidence in the context of the nature of the job assigned to him and whether he would be covered by the employment visualised in Section 2(n) of the 1923 Act. Evidence on this aspect of the matter is wholly absent. Consequently, this court is not in a position to address the issue of the deceased Sohan Lal being workman in terms of Section 2(n) read with clause (viii) of second Schedule of the 1923 Act as sought to be agitated by the counsel for the claimant. Consequently, in my considered opinion, the impugned judgment dated 31-3-2008 passed by the Commissioner without addressing the issue of the deceased Sohan Lal being workman or not is liable to be set aside. It is accordingly set aside to this extent. 9. The matter is remanded limited to the issue as to whether the deceased Sohan Lal was a workman within the meaning of Section 2(n) of the 1923 Act to the Commissioner for adjudication.The claimants being from a poorer section of the Society, must have definitely expanded the amount of compensation disbursed to them. This would not be recovered from them consequent to setting aside of the judgment/ award dated 31-3-2008. Yet the remainder amount or outstanding compensation in deposit with the Commissioner shall not be disbursed to the claimants.The remainder amounts payable to the claimants shall abide the determination of the question by the Commissioner as to whether Sohan Lal, the deceased, was a "workman" within the meaning of the term under the Act of 1923.The appeal stands allowed accordingly.Appeal allowed. *******