A. Ganesan Matriculation Higher Secondary School vs Kandan and Others

S. Manikumar, J.

Being aggrieved by the order, dated 13-12-2013, made in W.C. No. 167 of 2008, on the file of the Workmen Compensation Commissioner-II/Deputy Commissioner of Labour-II, Teynampet, Chennai-6, the present appeal has been filed. It is the case of the respondent-workman that he was engaged by Mr. V. Ramachandran, a Contractor, under the Ganesh Matriculation School, Chennai, the appellant herein, to do painting work. He was paid Rs. 250/- per day, on daily wages. On 13-4-2007, when he was painting the outside walls of the 2nd floor of appellant-school with the help of ladder, made up of coir, under the supervision of both the opposite parties, he fell down from the height of 2nd floor. He was admitted in Royapettah Hospital and thereafter, took treatment in MIOT Hospital. A case in Cr. No. 1130 of 2007, has been registered on the file of J7 Velacherry Police Station, Chennai. Contending inter alia that the accident occurred, arising out of and during the course of employment, the respondent-workman has filed a claim for compensation.

The 1st opposite party, Mr. V. Ramachandran, in his counter affidavit, has contended that he was not aware of the accident. According to him, the appellant-school directly engaged the respondent-workman and no contract was given to him. Though he had contended that he came to know about the accident, while he was sitting in the office of the appellant-school and he has not witnessed the accident, at paragraph 6 of the counter-affidavit, he had admitted that on 19-4-2007, the appellant-school gave him the work order and that he had completed the painting work in the appellant-school.

Ganesh Matriculation School, Chennai, the appellant herein, in its counter-affidavit, submitted that the school is not carrying out any trade or business in the school premises, except imparting education. According to them, the respondent-workman was employed by the 1st opposite party, for carrying out painting work, in their premises. There was no employer-employee relationship between the respondent-workman and the school.

Denying the manner of accident, the appellant-school contended that the respondent-workman, while carrying out the painting work on the outside walls of the 2nd floor of school building, jumped from one sunshade to another and thus, was negligent. It is also their contention that though the 1st opposite party had erected scaffolding with casuarina poles, close to the walls, the respondent-workman, without using the same, jumped from one sunshade to another and invited the accident. Therefore, he prayed for dismissal of the claim petition.

Before the Deputy Commissioner of Labour, the respondent-workman examined himself as AW 1 and one K.J. Mathiazagan, has been examined as A.W. 2 Ex. A1--FIR, Ex. A2--Accident Register, Ex. A3--Discharge Summary, Ex. A4--C.T. Scan Report, Ex. A5--Disability Certificate, Ex. A6--Lawyer''s Notice and Ex. A7--Reply, have been marked on the side of the respondent-workman. On the other side, the 1st opposite party, examined himself as R.W. 1 and marked painting contract bill, as Ex. R1. On behalf of the appellant-school, the Correspondent of the school, has been examined as RRW. 1 and marked Ex. RR1--Quotation, dated 7-4-2007, Ex. RR2--Cheque, dated 11-4-2007, for Rs. 7,000/-, drawn in favour of the 1st opposite party, Ex. RR3--Letter from the 2nd opposite party to the 1st opposite party, Ramachandran, Contractor; The Ack and the note and Ack of the 1st opposite party on 19-4-2007; Cheque dated 19-4-2007 for Rs. 50,000/- favouring the 1st opposite party, Ex. RR4--Letter of 1 st opposite party to the 2nd opposite party, dated 19-4-2007, Ex. RR5--Request letter of 1st opposite party to the 2nd opposite party, dated 20-4-2007 and Ex. RR6--Letter of 1st opposite party to 2nd opposite party, dated 2-5-2007.

On the above pleadings, the Deputy Commissioner of Labour, has framed the following issues, as to

(i) Whether the 1st respondent was engaged as workman under the 2nd opposite party, through the 1st opposite party?

(ii) If so, whether the 1st respondent was injured, arising out of and during the course of employment?

(iii) What is the age and income of the 1st respondent?

(iv) How much is the loss of earning capacity of the 1st respondent?

(v) To what amount, the 1st respondent is entitled to?

(vi) Who is to pay the compensation?

During cross-examination by the 1st opposite party, the 1st respondent-workman has stated that even 1 1/2 months, prior to the accident, he was working in the appellant-school. He has denied the suggestion that he compelled the 1st opposite party to pay a sum of Rs. 2 lakhs, to meet out the medical expenses. When he was cross-examined by the 2nd opposite party, he categorically stated that the 1st opposite party sent him to the 2nd opposite party, on daily wages, for a sum of Rs. 150/- per day.

R.W. 1, Ramachandran, 1st opposite party, in his evidence, has submitted that during March, 2007, correspondent of the school has requested him to give a quotation for the completion of the work. Accordingly, he has given a quotation for Rs. 1,45,000/-. Since the school sought for reduction of the quotation amount to Rs. 90,000/-, he did not agree for the same and hence, the school did not issue any work order to him. On 13-4-2007, when he heard the information, about the accident, through the relatives of Kandan, the applicant, that he had fallen down from the building, while he was engaged in painting, on humanitarian grounds, he admitted him in Government General Hospital, Chennai and paid Rs. 10,000/-.

According to R.W. 1, he was compelled to pay the compensation amount and accordingly, signature was obtained. Therefore, he had issued a cheque, dated 9-4-2002, to Kandan. Medical bills for Rs. 1,51,000/-, incurred for the surgery in MIOT Hospital, was also paid under compulsion. He has further deposed that wages were directly paid by the school. No work order was issued to him. For the abovesaid reasons, he prayed for dismissal of the claim.

During cross-examination by the school, R.W. 1, has admitted that Ex. R1, quotation, dated 7-4-2007, was given to him. He has admitted his signature in Ex. R1. He has also admitted that on 11-4-2001, a cheque for Rs. 7,000/- was given by the school, for purchasing phenol. He has denied that on 20-4-2007, he has sent a letter to the school for payment of wages of Rs. 20,000/-. He has denied the suggestion that an advance amount of Rs. 7,000/- was received. According to him, wages would be paid directly by the school, through the Supervisor of the school. He has also deposed that he has not given any complaint to the Police. However, he has admitted payment of Rs. 10,000/- to the wife of the applicant.

Correspondent of the school, Rajendran, in his evidence, has stated that the contract work was given to Rajendran, 1st opposite party, for painting and an advance amount was given. According to him, if was the contractor, who paid the wages to the workman and in support of the above, he has marked Ex. R. 3. During cross-examination, he has stated that supervising the painting work is not the job of the school. During cross-examination by the 1st opposite party, he has accepted that though Ex. R1--Quotation for Rs. 1,45,000/- was given, but he has agreed for Rs. 90,000/- only and affixed his signature in Ex. R1--Quotation. He has denied the suggestion that seven workmen would directly get their wages from the school. He has also denied the suggestion of the 1st opposite party that since no work order was given, he cannot be treated as a contractor.

Evaluating the evidence adduced by the parties, the Deputy Commissioner for Labour No. 11, Chennai, found that the 1st opposite party has admitted payment of Rs. 10,000/- to the wife of the injured and also a cheque, dated 19-5-2007, has also been issued for Rs. 50,000/- towards medical expenses and subsequently, a sum of Rs. 1,51,000/- has been paid for surgery underwent by the injured and for other medical charges, in MIOT Hospital. Though the 1st opposite party has contended that the abovesaid payments were made on humanitarian grounds and also due to the compulsion of the henchmen of the school, taking note of the silence and inaction on the part of the 1st opposite party, in not giving any complaint to the Police, about the accident and also the allegations made against the school, that under compulsion, the 1st opposite party, was constrained to pay the medical expenses, the Deputy Commissioner of Labour, Chennai, has rejected the contentions that the 1st opposite party was in no way responsible for the accident and payment of compensation. For the abovesaid conclusion, the Deputy Commissioner of Labour-II Chennai, has also taken note of the fact that under Ex. R4--Letter, dated 19-4-2007, of the 1st opposite party, written to the 2nd opposite party-school, he has undertaken to bear the expenses and under Ex. R5, dated 20-4-2007, the 1st opposite party, had sought for payment of Rs. 20,000/- from the school, Holding that the accident has occurred, arising out of and during the course of employment, within the premises of the 2nd opposite party and in the light of Section 12 of Workmen''s Compensation Act, 1923, the Deputy Commissioner of Labour II, Chennai, has directed the appellant-school to deposit the compensation of Rs. 2,68,464/- with him and thereafter, recover from the 1st opposite party.

Being aggrieved by the Award, dated 13-12-2013, made in W.C. No. 167 of 2008, on the file of the Workmen Compensation Commissioner-II/Deputy Commissioner of Labour-II, Teynampet, Chennai-6, in the present appeal, the school has raised the following substantial questions of law,

"(i) Whether the determining/quantifying the compensation purely based on the percentage of the disability as deposed by a doctor of the respondent is valid and legal in law to act upon and for awarding compensation without ascertaining/determining/fixing the percentage of loss of earning capacity?

(ii) Whether purely, very casual and unconnected painting work on the outer area in an educational institution can be termed as a trade or business of the educational institution?

(iii) Whether attending to pure casual work of painting of outer side of the wall once in three years is considered as work of trade or business of the educational institution of the appellant?

(iv) Whether any person admittedly attending to contractual painting work and not at all connected with the trade or business of the employer shall be treated as workman within the meaning of Section 2(i)(n) of the Workmen''s Compensation Act, 1923?

(v) Whether treating of the first respondent as worker of the appellant school is not hit by the law laid down by this Court reported in Sitharama Reddiar (T.N.) Vs. Ayyasami Gounder (A.), ?

(vi) Whether the order of the 3rd respondent herein within following general principles in the Civil Procedure Code, 1908 is not against the principles of natural justice?

(vii) Whether the claim of the compensation by the first respondent herein in the injury sustained can be construed as an employment injury, since casual painting of outer wall is not a work or connected employment of the appellant herein?"

In support of the above, Mr. M. Sriram, learned counsel for the appellant submitted that the Deputy Commissioner of Labour, has failed to consider that A. Ganesan Matriculation Higher Secondary School is an Educational Institution and not engaged in any trade or business and the nature of work involved was painting. He further submitted that the authority has failed to consider that there is no privity of contract, between the school and the injured painter.

Mr. Varadha Kamaraj, learned counsel appearing for the workman, submitted that the Employees Act, has underwent an amendment, wherein the words, "casual labour" have been omitted and therefore, the substantial question of law and the submissions made therein are liable to be rejected. He further submitted that painting the school is one of the integral part of the work or business of an educational institution and that therefore, A. Ganesan Matriculation Higher Secondary School, the appellant herein, is liable to pay compensation, under Section 12 of the Act.

Both sides have placed reliance on case laws.

Heard the learned counsel for the parties and perused the materials available on record.

The word ''employer'' as defined in Section 2(1)(e) of the Workmen''s Compensation Act, reads as follows:

"2(1)(e). "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him."

Section 12(1) of the abovesaid Act deals with contracting and it reads as, follows:

"12. Contracting:--(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contract with any other person (hereinafter in this section referred to as the contractor for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed."

The intention of the legislature in enacting Section 12(1) of the Workmen''s Compensation Act, has been explained by the Hon''ble Division Bench of Mysore High Court in M.R. Mishrikoti Vs. M.H. Asoti, wherein, at paragraph 6, it is held as follows:

"In the aforesaid provision the term ''employer'' is used in contradistinction to the injured workman or the dependent of a deceased workman who had made an application for compensation and who can also appeal from an order of the Commissioner if he feels aggrieved by such order. The intention of the Legislature in enacting that proviso appears to be that the injured workman or the dependent of a deceased workman who has been awarded compensation by the Commissioner, should not be put to any difficulty in realising such amount of compensation on account of any recalcitrance of the employer or on account of the vicissitudes of his (the employer''s) financial position after he prefers an appeal. This object of the Legislature will be defeated, if we accept the interpretation put forward by Mr. Joshi and hold that the proviso is applicable only to an appellant who admits that he was such employer and not to an appellant who disputes the finding by the Commissioner that he was such employer. Hence, we are unable to accept the contention of Mr. Joshi that the appellant could file the appeal without depositing the amount of compensation as he was denying his having been the employer in relation to the deceased workman."

In New India Tannis Ltd. Vs. Aurora Singh Mojbi and Another, , the appellant-Company therein carried on the business of making extracts of myrobalan and exporting the same to foreign countries. It had a factory called ''Rong Kuti'' where its manufacturing business was carried on. Early in 1953, the chimney needed repairs and by a letter written on 18th of March, the appellant-company engaged one Hazara Singh to dismantle the upper portion of the chimney and to hoist a new length of chimney. In pursuance of that contract, the work was taken up by Hazara Singh through his men and while the work was carried on, one Bishan Singh who, among others, was engaged in it, fell from a height of sixty feet and met with instantaneous death. On the basis of the death of his son, due to the accidental fall, respondent No. 1, Aurora Singh Mojbi, made an application for compensation against the appellant under the Workmen''s Compensation Act. He alleged that Bishan Singh had been employed by the appellant and while so employed, he received a personal injury, by an accident arising out of and in the course of his employment, which resulted in his death. The appellant-company by its written statement disclaimed its liability. The plea taken was that the work of fitting of chimney was given on contract to Hazara Singh, who was an independent contractor, and that the deceased, was an employee under Hazara Singh. He was never an employee under the appellant. Obviously, with the provisions of Section 12(1) of the Act in mind, the appellant-company further added that the work of fitting a particular chimney or chimneys in general was not a part of its ordinary trade or business. Having taken that plea, the appellant company abruptly proceeded to pray that Hazara Singh might be made as a party to the proceeding under Section 12(2) of the Act. That prayer was followed up by another contained in paragraph 7 of the written statement which stated that if the appellant-company was made liable for compensation, its right has to be indemnified by the contractor, to the extent of the decretal amount that might be declared. The Commissioner for Workman, Compensation decreed the claim against the appellant-Company and further held that the Company would be indemnified by Hazara Singh, to the extent of the decretal amount. On the aspect of trade or business, the Calcutta High Court, at paragraph 15, held as follows:

"15. I have already referred to the nature of the contract. I am free to confess that it may be said to satisfy the first part of Section 12(1) which speaks of a contract entered into "in the course of or for the purposes of his trade or business". It can, I think be legitimately said if a company, carrying on the business of manufacturing goods in a factory, enters into a contract for the purpose of some repairs to its machinery or the factory building, such contract is entered into in the course of and for the purpose of the company''s trade or business. The requirement of the second part of the section, however, is altogether different. What is required there is that the work to the execution of which the contract relates, must be one "which is ordinarily part of the trade or business of the principal." I find it wholly impossible to hold that where a company carries on the business of manufacturing goods and requires a factory for performing the manufacturing process and the factory requires chimney, the work of occasional repairs to the chimney is a part of the ordinary trade or business of the company. The business of the company in such a case is to manufacture the goods which it produces. The manufacture may be done inside a factory and the factory may require a chimney which would occasionally need repairs, but repairing the chimney can in no, view be a part of the company''s trade or business, whether ordinarily or extraordinarily. In my view, the learned Commissioner was altogether wrong in holding against the appellant-company on the basis of a supposed admission in its written statement and equally wrong in his construction of the contract as also in the view taken by him of the nature of the work, for which the contract was entered into, in relation to the appellant-company''s business. The order made by him cannot possibly be upheld."

While explaining the scope of Section 12 of the Workmen''s Compensation Act, the Kerala High Court in Vijayaraghavan v. Velu reported in 1973 Lab IC 1520, has laid down the following four essential conditions to be satisfied, while applying Section 12 of the Act,

"(i) That the person (called the principal) is carrying on a trade or business and, in the course of or for the purpose of that trade of business, engages a contractor to execute the work.

(ii) That work is ordinarily a part of the trade or business of the principal.

(iii) The accident which gives rise to the liability for compensation must have occurred on, in or about the premises on which the principal has undertaken, or usually undertakes to execute the work or which is in his control or management.

(iv) The accident must have occurred while the workman was in the course of his employment in executing the work."

While considering, as to whether, construction of "cooli-lines" for the estate workers, is a part of business of tea estate or not, and the applicability of Section 12 of the Workmen''s Compensation Act, a Hon''ble Division Bench of the Kerala High Court, in Supt. Lockhart Estate v. Kaliappan reported in 1976 (1) LLJ 354, held as follows:--

"4. ...........It is necessary, in order to render person, who has not directly employed the workman or workmen concerned, liable to answer the claim for compensation, to show the existence of various requisites which would attract S. 12(i) and one of them is that the principal employer has, in the course or for the purpose of his trade or business contract with any other person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal. It is said that the trade or business of the principal here is that of producing tea in the estate, manufacturing it, preparing if for the market and marketing it and any work which is ordinarily part of this work could alone fall within the scope of S. 12(i). Consequently, it is said that if the workmen were engaged in such activities as construction of cooli-lines when they met with the accident, even the purposes of the estate, that would not enable a claim to be made against the estate as the principal employer. This contention calls for examination of what the trade or business of the principal is. The term "trade" or "business" would not have been used in S. 12(i) to mean the same, though in certain contexts they may bear the same meaning. The very fact that both these terms are employed in the section would indicate that they connote different ideas and they do not cover the identical field, "trade" as generally understood means activities of buying and selling and the business which is related to such buying and selling whereas "business" is a term of such larger import. All categories of business need not be trade, since there are many categories in which there is no element of trade at all. Taking for instance, the case of a tea estate, the trade may refer to the activities of buying and selling, buying for the purpose of the business of the tea estate and selling the products of the tea estate. Business is a concept which takes in all the activities including the running of a hospital for the estate, the maintenance of cooli-lines, providing such amenities as are agreed to between the management and the labour and all other incidental activities. It goes without saying that in the assessment to income-tax, if the estate is to claim deduction for expenses of business, expenses such as those incurred for the purpose of running a hospital for the benefit of the estate will be claimed as business expenses though they are not to be treated as trading expenses.

In a different context the question of the distinction between business and trade was considered by the Chancery Division in the decision in In re A Debtor 1927 (1) Cha 97. Sir Scrutton, L.J., said in that case:

"The word ''trade'' is often confined to buying and selling commodities. Where to draw the line between what is a profession and what is a trade is a matter which it is not possible to deal with by any general, definition. ''Business'' is a much wider term than ''trade''. The word ''business'' at least covers a continuous occupation involving liabilities to others."

We cannot agree with the counsel for the principal employer that the construction of cooli-lines in the estate is not part of the business of the principal. Section 15 of the Plantations Labour Act, 1951 obliges every employer to provide and maintain-for every worker and his family residing in the plantation necessary housing accommodation. It is a statutory duty. In discharge of such duty the employer may himself construct houses for residence of the workers or such work may be done through a contractor. If he does such work by himself, it cannot be said that it is not part of his business, for, the business is not concerned merely with growing tea and selling it. Tea can be grown only in the tea estate and a tea estate could be run only in accordance with certain regulations and one of the regulations is that quarters are to be provided. Even if there be no statutory obligation if it is the usual requirement of the business or a term of the employment, then work such as construction of cooli-lines would be part of the business of the employer. .........."

In Executive Engineer, Kadana Dam and Another Vs. Phebiben and Others--> , a workman was employed by a contractor, for construction of a dam. Public Works Department has undertaken the work and entrusted the same to a contractor. When a claim for compensation was made, the Public Works Department resisted the claim, contending inter alia that he was not a workman engaged by them, and it is the contractor, the immediate employer, who has to pay the compensation. Adjudging the issue with reference to the words, "trade" or "business", the activity undertaken by the department, the Gujarat High Court, at paragraphs 18, 19 and 22 of the judgment, held as follows:

"18. In this case the Government of Gujarat, through its Public Works Department had undertaken the Kadana Dam Project. Once construction of the dam project was undertaken by the Government of Gujarat through its Public Works Department, it became the business activity of the State Government (vide Section 2(2)). In order to execute this work the State Government employed a contractor, namely, Cementation Company Limited. That company is indisputably the contractor. So the first two conditions are satisfied.

The controversy is that the work which was given to the contractor was not ordinarily part of the trade or, business of the principal and, therefore, the third condition for invoking application of Section 12 is not satisfied. There is absolutely no substance in this contention. In view of the provision contained in sub-section (2) of Section 2. Once the power to build a dam across the river was sought to be exercised by undertaking the Kadana Dam Project, to be executed through the Public Works Department, the activity connected with the execution of the Kadana Dam Project, became the business or trade activity of the State Government and the activity of the Public Works Department is ordinarily the activity of putting up construction, may be roads, may be canals, may be embankment, may be dam. Once it became the activity of the State Government, and in order to carry out this activity, it engaged a contractor, the contractor was engaged for execution of the work, which was ordinarily part of the business activity of the principal. The principal wanted to build a dam, and it is the business activity of the principal. The principal employed a contractor to carry out part of the construction of the dam work which was business activity of the principal. It does appear that the principal, namely, the State Government through its Public Works Department undertook the activity of construction of a dam in exercise of its sovereign function. But once it decided to perform the duty of carrying out its sovereign function, it became the business activity of the Public Works Department through which it decided to construct the dam, and Section 2(2) would be attracted. It is universally known that the Public Works Department entrusts its business activity or part of it to a contractor.

Having, therefore, examined the case both on principle and authority, it is crystal clear that once the State Government decided to exercise its power of building a dam, through its Public Works Department, acting on behalf of the Government, activity for construction of the dam would be its trade or business activity but more especially business activity. It is not necessary in this connection to cut down the meaning of ''business'' by referring to ''trade'' which precedes it, as was sought to be urged. Both the words have been advisedly used in their wider connotation, and once construction of dam becomes business activity of the Public Works Department, as it is undertaken through that Department, one has to ascertain what are the ordinary activities of the Public Works Department. Construction of all sorts of work indisputably is the ordinary activity of the Public Works Department and once such ordinary activity was sought to be carried out through the contractor. Therefore, all conditions for attracting Section 23 are satisfied and the Executive Engineer has been rightly held liable for the compensation claimed by the original applicants."

As regards the option of the claimant to institute proceedings for compensation against the principal employer or the contractor, or against both, in the same proceedings and of the provision under Section 12(2) for indemnification, the Allahabad High Court in Sardar Sewa Singh Vs. Hindustan Lever Ltd. and Others, , has explained the purpose and scope of Section 12 of the Act, as follows:

"Chapter II of the Act captioned ''Workmen''s Compensation'' deals with the question of compensation claimed by a workman. Ordinarily such claims are disposed of under the provisions of Sections 3 to 5. The scheme of the Act is that the ''employer'' as defined in section 2(c) should be liable in the manner mentioned in section 3. In view, however, of the vastly increasing ramifications of industrial establishments and the multiplicity of immediate and indirect or remote employees which such process inevitably involves the legislature has inserted a provision in the Act which may relieve a workman of the difficulty of ascertaining with precision as to who should be deemed to be the actual employer liable for compensation under the Act. Section 12, therefore, provides for a case where we have several tiers of employers or petty employers. It is a matter of common knowledge that in big industrial establishments important branches of undertakings are entrusted to contractors, who may in their turn have to employ other petty contractors working under their direction and a workman may be actually employed by one of these aforesaid persons and in such an elaborate hierarchy there is, may be no direct privity of contract between the principal and the workman in the last analysis. The workman has for all practical purposes to deal comes to lodging a legal claim for compensation on account of an accident he is concerned with the principal employer and not the immediate employer qua the workman. This is an enabling provision for the benefit of the workman and enacted with the clear objective that the workman should not be hampered by technicalities or practical difficulties of deciphering the correct employer. A pragmatic method has thus been devised for fixing the liability of the principal employer and thereby affording speedy relief to the workman for payment of compensation on account of the accident, though the principal has been invested with the right of indemnifying himself from the contractor who may have employed the workman and may have been responsible for immediately taking work from him."

In Public Works Department v. Commr., Workmen Compensation reported in 1981 Lab IC 493, two persons working as labourers under a contractor employed by Public Works Department for laying of a road, met with a fatal accident. Legal representatives claimed compensation from the Government, as well as from the Contractor. Two separate claim applications, i.e., one by the second respondent therein, father of the deceased and another by the mother, were made. The Labour Commissioner disposed of both the applications by a common order, awarding compensation to the claimants, to be paid by Public Works Department and the contractor, in equal shares. Aggrieved by the same, the Public Works Department preferred an appeal before the Hon''ble Division Bench of Jammu and Kashmir High Court, contending inter alia that the appellant cannot be said to be the principal employer of the deceased labourers, within the meaning of Section 12 of the Act and imposition of penalty was also put to challenge. While explaining the difference between "trade" and "business", the Hon''ble Division Bench of Jammu and Kashmir High Court, at paragraph 4, held that,

"4. Unlike the word "trade" which merely connotes commercial activity, the word "business" is of much wider import and may be used in different contexts in different senses. Used in one context, it may imply a particular occupation or employment to earn livelihood or gain, whereas used in a different context it may mean an activity which engages time, attention, or labour as a principal serious concern or interest. Its connotation may thus vary with the varying contexts in which it is used. In taxing statutes for instance, the word "business" will always denote an activity carried out with the object of earning profit, though the same may not be true when used in relation to other activities. Used in broader sense, a person building his residential house or a Government constructing a road, may well be said to do business insofar as the said activity engages his or its time, attention or labour as principal serious concern or interest."

As regards the object behind Section 12 of the Act, at paragraph 7, the Hon''ble Division Bench further held that,

"7. The only object behind the provisions of Sec. 12 appears to be to secure speedy payment of compensation resulting from injuries to a workman. The legislature intended to make doubly sure payment of such compensation to the workman, or to his dependents in the event of his death, as it could not exclude the possibility of the contractor being in some cases a man of straw, whose straitened circumstances might jeopardise the changes of recovery of such compensation. If, therefore, a restricted meaning is given to the word, "business" so as to imply an activity with the object behind Section 12 is likely to be defeated. Not only to speak of the Government performing its various functions of a welfare State, even many other persons may have to be kept out of the purview of Section 12 by assigning such a limited meaning to the word, "business" occurring in it. Such an interpretation would absolve from liability to pay compensation even a person who would appoint a contractor for building his residential house, as building one''s residential house cannot be said to have the object of earning profit or gain behind it. It cannot, as such, be said to partake of "business or trade" in commercial sense. Merely because the word "business" is clubbed with the word "trade" in Section 12, it should not be inferred that it has been used in simple commercial sense. Both these words have to be read disjunctively and not conjunctively. Similarly, the doctrine of immunity attached to sovereign acts of State cannot be extended to acts like constructing roads or bridges, as such acts are not of such a nature as cannot be done by a private person. Viewed thus, the word "business" occurring in Section 12 has to be given an extended meaning, so as to include even an activity which engages time, attention, or labour as a principal serious concern or interest of the Government or an individual without an element of profit in it. It is one of the meanings given to the word "business" in dictionary. (See Webster''s New International Dictionary, Vol. I. Ed. 1926). Construction of roads being one of the principal concerns of the Public Works Department of the Government inviting its serious attention, it is "business" within the meaning of Section 12 and the appellant was thus the principal employer vis-a-vis the deceased labourers."

In Travancore Devaswom Board Vs. Purushothoman, , father, who had lost his son, in the accident, which occurred, while the latter was engaged for conducting "Nerchavedi" in Achencoil Temple, under the management and administration of the appellant-Devaswom Board, made a claim, against the appellant-Board and the contractor, under the Board, for compensation, for the death of his son, during the course of employment. The appellant-Board has filed a counter affidavit, stating that the deceased was only a sweeper in the Devaswom Board and conducted "Nerchavedi" in the premises of the temple, is not an integral part of day-do-day affairs of the festival, in the temple. Dealing with the abovesaid aspect, at paragraphs 6 and 7, a Hon''ble Division Bench of Kerala High Court, held as follows:

"6. The purpose of the provisions contained in Section 12 of the Workmen''s Compensation Act and the conditions necessary to make a person liable to pay compensation to a workman not engaged by him are correctly stated in Vijayaraghavan Vs. Velu and Another, to the following effect:--

if any workman suffers an injury as a result of an accident arising out of or in the course of the employment, the employer is liable to pay compensation to the workman under Section 3 of the Act. There must be an employer and employee relationship between the workman and the person against whom compensation is asked for. But, in many cases persons who want to get work done try to avoid this liability by contracting with someone else to provide labour or to execute the work and then contend that as there is no employer and employee relationship between the workman who suffered an injury and themselves, they are not liable to pay any compensation. To prevent such escape from liability to pay compensation Section 12 has been enacted which reads as follows:--

Contracting--(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with an other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him, and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.

(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.

(3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal.

(4) This section shall not apply in any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken, or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.

A reading of the above provision discloses that order that a person can be made liable to pay compensation to a workman not engaged by in the following essentials must be satisfied:--

(i) That person (called the principal) is carrying on a trade or business and in the course of or for the purpose of that trade or business engages a contractor to execute the work.

(ii) That work is ordinarily a part of the trade or business of the principal.

(iii) The accident which give rise to the liability for compensation must have occurred on, in or about the premises on which the principal has undertaken or usually undertakes to execute the work or which is in his control or management.

(iv) The accident must have occurred while the workman was in the course of his employment in executing the work.

Now it has to be examined whether these conditions are satisfied in this case. In determining the above question the main factor to be considered is whether the Travancore Devaswom Board is conducting any trade or business. There can be no doubt that it has not doing any trade. Is it doing any business? The word ''business'' has a very wide import and has a variety of meanings in different contexts. There is no definition of the word in the Act and the various decisions have given different meanings in the context of particular statutes and fact situations. Going by these decisions and the dictionary, in a broad sense, it means "everything that, occupies time, attention and labour of men for the purpose of livelihood or profit". In a narrow sense it is confined to commercial activity. In certain contexts courts have interpreted business to include the practice of a profession. Agriculture has been held to be a business in the context of this Act. It is not advisable to interpret expressions used in one Act with reference to their use in another enactment. But it is evident that in order to constitute business, it must be an occupation, profession or calling or a commercial activity. It is in this background that we have to consider whether the Devaswom Board is carrying on a business.

We think, it is not. The Board is constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950. Under Section 3 of the above Act, the administration and the management of all incorporated and unincorporated Devaswoms and all their properties and funds shall vest in the Devaswom Board. Achencoil Devaswom is an incorporated Devaswom as defined in Section 2(c) read with Schedule 1 to the Act whose management and assets have vested in the Board. Section 31 of the Act enjoins the, Board to manage the properties and affairs of the Devaswoms, both incorporated and unincorporated and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. The Board is a statutory trustee, the beneficiaries being the general Hindu public. It is not with any profit motive that the Board is functioning. Nor is it practising a profession or calling. It is a statutory trustee constituted for the upkeep and management of the temples which are intended for the spiritual upliftment of the devotees. In these circumstances, we have no doubt that the Board is not doing any business and the first condition to attract Section 12 is not satisfied in this case."

At the risk of repetition, the details of the decision in Sarjerao Unkar Jadhav Vs. Gurindar Singh and another, , are reproduced. In this case, the appellant-workman was required to climb the ladder-cart to do painting work. A claim was made against the Electricity Board and the contractor. The Commissioner of Labour exonerated the Electricity Board and held that the contractor was liable to pay compensation. An appeal was preferred by the contractor and Section 12(1) of the Workmen''s Compensation Act, was pressed into service. While considering the issue, as to whether painting electric poles is also a work, which is ordinarily, a part of the trade or business of the Board, the Bombay High Court, broadly laid down the following principles that,

"the safer test would be that if it is ordinarily a part of business of the principal to execute certain work, then ordinarily he will do that work by his own servants and he cannot escape the liability for accident that takes place merely because he has engaged a contractor. Now, in the present case, the trade or business of respondent No. 2 is to supply electricity. One cannot supply electricity without having electric poles. Electric poles are not one or two in number. They are hundreds and thousands having regard to the area of operation of respondent No. 2. In Bombay climate, the poles are likely to get rusted unless painted frequently. It will thus be an ordinary part of respondent No. 2''s business to point the poles if it is interested in supplying electricity continuously and properly. It is for this reason that I am inclined to hold that the contractor was engaged not only for the purpose of respondent No. 2''s trade or business, but the activity in which the workman was engaged was ordinarily a part of its trade or business. Accordingly, I further hold respondent No. 2 responsible and liable for compensation under Section 12(1) of the Workmen''s Compensation Act."

In K. Koodalingam Vs. Supt. Engineer and Others, , applications were filed under the Workmen''s Compensation Act, 1923, claiming compensation for the death of the workmen admittedly employed by the second opposite party therein, a contractor, engaged by the Superintending Engineer, Public Works Department, the first opposite party therein, for the purpose of getting a project undertaken by Public Works Department, in the course of its business. The main project undertaken by the Public Works Department was "Kuttiadi Irrigation Project." The work that was entrusted to the contractor by the Public Works Department, was construction of a canal forming part of the main project. The deceased were engaged in the work of removal of earth from the work site. When the land at a high elevation slided down, the workmen got buried alive and breathed their last under the debris. Legal representatives of the deceased made claims. Though notice was served, the contractor remained ex parte. The Superintending Engineer contended that the deceased were employed by the second opposite party, viz., the contractor, in the construction of irrigation canal for the main project and that they died as a result of the accident, which arose out of and in the course of their employment, at the work site. The Superintending Engineer further stated that Public Works Department was not liable to pay compensation, as claimed in the applications, since the workmen were employed by the contractor, who was entrusted with execution of the work and as per the terms and conditions, contained in the agreement, a provision has been made that the contractor alone would be responsible for the protection of the workmen and that therefore, payment of compensation should be made only by the contractor. Placing reliance on Clause 15 of the Ex. R1, agreement entered into between the Department and the Contractor, where the contractor had expressly undertook the responsibility to pay compensation under the Act, liability was fastened on the contractor to pay compensation to the deceased-workmen. When the correctness of the above order was challenged, the Kerala High Court, finding that the work, for which the deceased workmen were engaged and in the course of which, they lost their lives, was the work of construction of irrigation canals, as part of "Kuttiadi Irrigation Project", undertaken by Public Works Department of the State Government, as certainly one of the principals concern of Public Works Department of the State Government and holding that such work in question can only be treated as part of the business of the first opposite party, viz., the Superintending Engineer, Public Works Department, a Hon''ble Division Bench of Kerala High Court, at paragraphs 9 and 10 held as follows:

"9. If Section 12 of the Act is applicable to the facts of the case on hand there cannot be any doubt about the legal position that the first opposite party is also liable to pay compensation payable under the Act to the workmen even if the workmen were engaged actually only by the second opposite party. As such the Court ought to have made the first opposite party also liable to pay the compensation applying the provisions of Section 12 of the Act, the Court while passing the impugned order has clearly committed an error in not noting the provisions of Section 12 and giving effect to it by making the first opposite party also liable to pay the compensation determined in the case.

Section 12(2) in unambiguous terms confers a right on the principal who is made liable to pay compensation under the said Section to get himself indemnified by the contractor. As such, we would hold that the first opposite party as principal will be entitled to be indemnified by the contractor by virtue of Section 12(2) of the Act and to recover the amount of compensation, if any paid to the workmen, from the second opposite party in execution of the orders passed in the two cases itself. We say so because in this case the first opposite party has specifically contended that as per Clause 15 of the agreement entered into between the department the contractor has expressly undertaken the responsibility for payment of compensation under the Act and the Court as per the impugned order has accepted the above contention and held the second opposite party exclusively liable to pay the compensation found due."

As regards the contention of the Government that, in the light of the contract entered into between the two opposite parties, regarding the liability to pay compensation under the Workmen''s Compensation Act and that Section 12 cannot be applied to the facts of the present case, to fasten liability for payment of compensation under the Act on the Department, the Hon''ble Division Bench of Kerala High Court, at paragraph 11, further held as follows:

"The avowed object with which Section 12 was enacted as part of the Act as seen from the Report of the Select Committee is to enable the workmen or the dependents of the workmen to proceed against the contractor or against the principal or both and to make the contractor liable to indemnify the principal in all cases in the absence of any agreement to the contrary. The Report of the Select Committee would also show that while finalising the provision the Committee has eliminated the provision which in the Bill as introduced exempted the Government and local authorities from liability imposed by this clause. The Committee has observed that these authorities are liable just in the same manner as private individuals. If these were the avowed objects with which Section 12 of the Act was incorporated in an enactment which itself is a beneficial legislation intended to confer benefits on the workmen, we are of the view that the provisions in Section 12(1) would apply notwithstanding the agreement or contract entered into between the principal and contractor regarding their liability for payment of compensation under the Act. So long as the section has not been made specifically subject to any contract to the contrary, the section would have application in all cases where the conditions specified in the section are satisfied. The fact that no non obstante provision is used in the Section may not be a sufficient reason to exclude the application of the section to cases where the conditions are satisfied. At best, agreements or contracts entered into between the principal and contractor can govern only their inter se rights and liabilities and cannot affect the right of the workmen or their dependents to get compensation either from the principal or from the contractor at their option. Right to get indemnified from the contractor specifically conferred on the principal under Section 12(2) of the Act sufficiently safeguards the interest of the principal who has entrusted the work to the contractor stipulating the liability under the Act. Accordingly, we would reject the contention of the learned Government Pleader."

In Koli Mansukh Rana Vs. Patel Natha Ramji, , a workman claimed compensation for the personal accidental injuries sustained by him, when he was attending sugar-cane crushing machine. Due to the accident, his right hand was crushed in the said crushing machine. Despite notice being served, the employer did not pay compensation. Before the Labour Commissioner, the employer appeared and resisted the application for compensation, contending inter aha that the injured was not a workman, as defined under the Act. However, he admitted the factum of the accident. According to him, the injured, being a relative of one Mr. Bachu Nanji, who was his contractor, had unauthorisedly tampered with the crushing machine and, therefore, not entitled to any compensation. On the above facts and circumstances of the case, the learned Commissioner held that the injured/workman was not entitled to compensation, under section 3 of the Act. It was an admitted fact that the opponent/employer had engaged the said Mr. Bachu Nanji and Mr. Jayanti Soma, as his contractors for cutting, collecting and crushing sugar-canes in his field. It was specifically pleaded in the written statement that he had given the contract to the abovesaid persons for crushing sugarcane. Though the Labour Commissioner believed that they were the contractors of the 1st opposite party-Mr. Patel Natha Ramji and also held that the injured was a ''workman'' as defined under the Act, however, the Commissioner dismissed the claim petition, stating that the injured was not a workman of first opposite party therein. In the appeal to the High Court, one of the substantial questions of law raised was, as to whether the first opposite party, Mr. Patel Natha Ramji, who had engaged Mr. Bachu Nanji and Mr. Jayanti Soma, as his contractors, for preparing sugarcane juice by crushing sugarcane, was the employer and who should pay compensation. Admittedly, the 1st opposite party, Mr. Patel Natha Ramji was doing business of jaggery and for preparation of jaggery, he had engaged one Mr. Nazirbhai Abdul as his contractor. In addition to that, he had also engaged the said Mr. Bachu Nanji and Mr. Jayanti Soma, as his contractors, for cutting, collecting and crushing sugar-canes, which was a part of the process for making jaggery. As per the evidence, the abovesaid persons were to cut, collect and crush sugarcanes, so as to make jaggery. In the light of the above said evidence and facts, the Gujarat High Court, held that it was a part of the process of preparing jaggery, which was the business of the original opposite party and therefore, held that the provision under Section 12 of the Workmen''s Compensation Act, would be attracted which prescribes that a person who is engaging a contractor for the execution of a contract work relating to his trade or business, would be the principal employer and that he would be equally liable for payment of compensation to a workman for personal injuries, under Section 3 of the Act.

While explaining the difference between the words ''trade'' and ''business'', the Gujarat High Court further held that, "The word ''trade'' means commercial activity. But the word ''business'' has much wider connotation and covers activities which may not be commercial." After extracting the four essential conditions, that are required to be satisfied, as stated supra, in the earlier paragraph of this Court''s judgment, the Gujarat High Court held that if all the four essential conditions are satisfied, then the principal employer can be made liable under Section 12 of the Act for payment of compensation under Section 3 of the Act. While explaining the object of Section 12 of the Act, the Court further held that,

"The very object behind the provisions of Section 12 of the Act is to secure compensation to the workman who cannot fight out his battle for compensation by a speedy process. A person who employs others to advance his own business and interest is expected to provide a surer basis for payment of the injured workman than the intermediary, who may often turn out to be a man of straw, from whom compensation may not be available. This is the purpose for which the claimant is given the option under Section 12(3) of the Act to claim the compensation either from the principal or from the employer."

In The Assistant Director of Horticulture Division, Anna Pannai, and another Vs. Andi and another, , the claimant''s daughter was employed by the contractor therein. He undertook the work through another person, for digging up a well. While she was working, suddenly, she met with an accident due to a fall of a stone on her head, which further caused her to fall into the deep well. Even though she was lifted by other coworkers and rushed to the hospital, she was pronounced dead. Father of the deceased claimed compensation. The third respondent therein opposed the claim, contending inter alia that the second respondent wanted to dig up a well at Anna Pannai. Tenders were invited for that work and the tender submitted by Anna Labour Contract Co-operative Society was accepted and that the work was also entrusted to the said Society. It was further contended that an agreement was entered into between the Society and third respondent. According to third respondent, he was only an authority to supervise and control the construction work and to maintain the efficiency and quality of the work. The work was entrusted to the Society for actual execution and therefore, it was for the Society to employ its own labourers for execution of the said work. It was also contended that the third respondent-contractor never engaged the deceased as a labourer, nor wages were paid by the Department.

While considering as to whether the work of digging a well, that was entrusted to the contractor was a trade or business and whether the third respondent would be liable to pay compensation in terms of Section 12(1) of the Workmen''s Compensation Act, this Court, at paragraph 9, held as follows:

"9. In a Welfare State, any activity by the State for the welfare of the people, even though cannot be termed as ''trade'', it will come within the definition of ''business''. In Bai Mani and Others Vs. Executive Engineer, Irrigation Project, Division Six, the Gujarat High Court had occasion to consider a case where the State Government through its Public Works Department, was doing excavation and construction work for the purpose of constructing a dam. In that case, the Court said that the word ''business'' has a much wider meaning and covers activities which may not be commercial and may include the construction work carried out by the Public Works Department. In that case, the learned Judge of the Gujarat High Court followed an earlier decision of the same Court reported in Executive Engineer, Kadana Dam and Another Vs. Phebiben and Others--> . That was also a case of construction of a dam by P.W.D. through a contractor. In that case, the Court said that the word ''trade'' means ''commercial activity''. But the word ''business'' has much wider connotation and covers activities which may not be commercial and may include the construction work carried out by the Public Works Department. Trade and business cover not only commercial activity but also many other activities which will be covered by the term ''business''. In the earlier decision of the Gujarat High Court which was followed by the same Court in Bai Mani and Others Vs. Executive Engineer, Irrigation Project, Division Six, , it was said that, ''Construction of all sorts of work indisputably is the ordinary activity of the Public Works Department and one such ordinary activity was sought to be carried out through the contractor''. In this case, due to drought conditions, naturally, construction of wells and deepening of existing wells is one of ordinary work of P.W.D., one of the State Departments and therefore, it could be considered as a ''business'' coming within the scope of Sec. 12 of the Workmen''s Compensation Act. In that view of the matter, the finding of the authority that all the respondents are liable to compensate the claimant is justified."

In Administrator of Administrator of Indore Nagar Palika Nigam Vs. Rann Singh and Others, , one Suratiya Was employed as a labourer by the contractors and while working as labourer, he fell down from the scaffolding due to which, he received injuries and succumbed to death. Widow of the deceased claimed compensation, against the Contractors and the Municipal Corporation, Indore. The Labour Court, allowed the application, holding that the contractors and the Municipal Corporation were jointly and severally liable to pay compensation to the legal heirs of the deceased. It was also held that the Municipal Corporation was entitled to be indemnified by the contractor. The contractors have not filed any appeal. However, the Administrator of the Municipal Corporation preferred an appeal, contending inter alia that though the Corporation had given a contract for the construction of a badminton hall to the contractor, they could not be held liable to pay compensation, as a principal employer, in view of the fact that the work of construction of the badminton hall was not ordinarily a part of the trade or business of the Municipal Corporation. It was further contended that the Corporation actually makes the stadium or other sports facilities available 18 the citizens of Indore, as a welfare scheme and not for profit or gain. Reliance was also placed on a judgment of the Allahabad High Court in Municipal Board, Almora Vs. Jasod Singh and Another, wherein, it was held that when the Municipal Board had entrusted the electrification work of the town and during the course of employment, if an employee of the State suffers injuries, State alone is liable to pay compensation and not the Board because, the execution of electrical projects is not ordinarily the business of the Board. Reliance was also placed in New India Tannis Ltd. Vs. Aurora Singh Mojbi and Another, , wherein, it has been held that if the work has been entrusted to a contractor to do a particular job, by the company which is not ordinarily a part of the trade or business of the principal company, then the company cannot be held liable to pay the compensation, as a principal.

On the other hand, the respondents/legal representatives, placed submissions to sustain the award, by referring to a judgment of the Gujarat High Court in Smt. Vimlaben Vashrambhai and Others Vs. The Gujarat Housing Board and Others, , wherein it has been held that when a contractor of the Gujarat Housing Board was entrusted with the job of constructing a building of the Board and a labourer employed by the contractor fell from a height resulting in death, then the Housing Board is liable to pay the compensation to the labourer employed by the contractor being the principal. Though an argument was advanced, stating that the work of the construction was not a ordinary part of business of the Corporation, undertaken without a motive to earn profit out of it, the Madhya Pradesh High Court, rejecting the said contention, held that the work of construction of a stadium or sport facilities was definitely an ordinary part of the business of the Corporation and in such circumstances, the appellant therein was held liable to pay compensation. While arriving at the above said conclusion, the Madhya Pradesh High Court has taken note of the decision of the Gujarat High Court in Bai Mani v. Executive Engineer, Irrigation Project Division Six, Baroda, reported in Bai Mani and Others Vs. Executive Engineer Irrigation Project Division Six, Baroda, , wherein, it was held that construction of a canal was held to be ordinarily a part of the business of the State and, therefore, the State was held liable to pay the compensation to the labourer of the contractor as principal. The decision made in Sarjerao Unkar Jadhav Vs. Gurindar Singh and another, , has also been pressed into service, wherein, it has been held that when the Electricity Board gave a contract for painting the electric poles and the workman employed by the contractor was injured, while painting the poles, it was ordinarily a part of business of the principal, that is, of the Electricity Board and, therefore, the principal was held liable for compensation.

In yet another decision in Malankara Rubber and Produce Co. Ltd. Vs. Hameed, , while considering the claim of the parents of the workman, who died in the accident, while erecting a structure close to the existing factory, the Hon''ble Division Bench held as follows:--

"9. We find no merit in the contention raised by the appellant that the appellant company cannot be treated as the principal employer. The word business used in S. 12 has various shades of meanings. The work undertaken by the contractor was in respect of the expansion of the factory building in the premises to the appellant. The expansion of the factory building was an usual requirement incidental for the expansion of the business. The expansion of the factory being connected with the expansion of the business of the employer would have been done by himself or under his supervision if he had not contracted with another. As the work undertaken by the contractor was in respect of the expansion of the business of the company, and the accident occurred in the factory premises under the control of the appellant, where its business was carried on the appellant was the principal employer liable to compensate the death of the worker, viz., Basheer under S. 12(1) of the Act. The Workmen''s Compensation Court was fully justified in holding that the appellant was the principal employer and that S. 12 of the Act was applicable. Hence this appeal has only to be dismissed and the order of the Workmen''s Compensation Court to upheld."

While considering a claim for the death of a workman, while whitewashing the walls of the respondent-university, the Hon''ble Division Bench of the Andhra Pradesh High Court in Bala Mallamma Vs. Registrar, Osmania University, Hyderabad and another, , held as follows:--

"16. This judgment reiterates a principle of interpretation and the principle is that the meaning of the work must be gleaned from the context in which it is used. Meaning assigned to a word in a particular Act may mean one thing and the meaning of the same term may give a different meaning when used in a different Act. Therefore, the word "trade or business" as used in this Act have to be understood in the context in which this Act has been enacted. Basically the act has been enacted to provide compensation to the workers suffering during the course of employment. It is also the purpose of the Act that they should get speedy remedies and it appears that the intention of enacting the S. 12 of the Act was only to ensure that compensation is paid by the principal expeditiously and if this purpose of the Act and the provisions are kept in mind, then the word "trade" or "business" may not have the same meaning which it would have, for instance, when used in interpreting a taxing statute. If the plea of the University is accepted that they are engaged in imparting education, conducting examinations and conferring degrees only and cannot be termed to be doing any business or trade and hence they are not liable to pay compensation, then any person engaged for similar activity by any Government department, any University, any hospital, if faced with an accident, would not be able to get compensation in terms of S. 12 of the Act although such a person would be a workman under the Act. Similarly if an individual who wants to construct a residential house of his own engages a person for construction of the house and if such a person faces an accident during the course of the building of the house, he would be remediless under the Act. Even otherwise the normal activity of the University is" imparting education, conducting of examinations and conferring degrees, this they cannot do without having proper buildings........."

In K. Kamalaveni, Moorchika rep. by her mother and natural guardian, K. Rajammal and C. Karuppiah Vs. The Managing Director, Subbathal Spinning Mills (P) Limited, P.O. John and The Official Liquidator, , at paragraphs 31 and 32, the Court held as follows:

"All the above said decisions dealt with the scope of Section 12 of the Act in which provision also, the accident should occur in the course of or for the purpose of employer''s trade or business to claim compensation. To attract Section 12 of the Act, such work should be executed through a contractor. In the present case, the factual finding is that a godown was constructed in the 1st respondent-management mills through the 2nd respondent-contractor for constructing the roof of the building, and the deceased was engaged in course of his employment he died. In view of the said finding of the Deputy Commissioner, Section 12 of the Act is applicable to the facts of the case. According to Section 12 of the Act, the 1st respondent-management mills, on whose instruction the godown was constructed for the purpose of their business, have to be construed as principal employer though the deceased was immediately employed by the 2nd respondent-contractor."

In Balu Rama Patil Vs. Ramesh Shankar Rao and Another, , while considering as to whether the driver of a car, which was not used as a commercial vehicle, at the time of accident, nor was it used for a business purpose, would fall under the definition of "workman" as defined under Section 2(1)(n) of the Workmen''s Compensation Act, for the purpose of claiming compensation, the Hon''ble Division Bench of the Karnataka High Court held that,

"Thus, in order to exclude a person from the category of a workman entitled to compensation under the Act, it has to be shown that he is a casual employee and further that he is not engaged in the trade or business of the employer."

In the above reported case, it was found that as the driver engaged was a paid driver, not employed as a casual worker, but on regular basis and having regard to the fact he cumulatively satisfied the conditions that the said driver was a person, other than, whose employment was of casual nature and was employed for the purpose of trade or business, the Hon''ble Division Bench held that the Labour Commissioner has failed to consider the abovesaid aspect and accordingly, set aside the order and remitted the matter back to the Labour Court for determination of the quantum of compensation.

Now reverting back to the facts of the case on hand, the dispute is whether painting of a compound wall is ordinarily a part of a work to be executed by the appellant-school and entrustment of the same to a Contractor, would absolve the liability of the school to pay compensation. To fasten liability of the principal employer to pay compensation and get it indemnified from the immediate employer, viz., the Contractor, the activity undertaken by the school, through its contractor for the purpose of painting the building, has to be considered as part of the business undertaken by the Principal Employer, viz., Shri A. Ganesan Matriculation Higher Secondary School. Even assuming that the workmen had not been engaged through a Contractor, ordinarily, the work of construction of a building or painting, have to be necessarily done by the school and in that context, it cannot be said that, but for the entrustment of the work to contractor, the school would not have engaged their employees to do the abovesaid work. To attract Section 12 of the Workmen''s Compensation Act, not only the contract must have been in the course of trade or business, but the work entrusted to him must relate to the trade or business. No commercial activity of required.

Applicability of Section 12(1) of the Workmen''s Compensation Act, depends upon the following conditions, (1) whether the person called the principal employer is carrying on trade or business and in the course of or for the purpose of that trade or business, engaged a contractor to execute any work, (2) whether the work entrusted to the contractor is ordinarily a part of trade or business of the principal, (3) whether the accident which give rise to the liability for compensation has occurred in or about the premises, on which, the principal had undertaken or ordinarily undertakes to execute the work, wherein he controls the employees of the contractor, (4) whether the accident has taken place during the course of and arising out of employment in executing the work, which is ordinarily a part of the trade or business of the principal employer and (5) whether the workman died during the course of employment. Sub-section (1) of Section 12 of the Workmen''s Compensation Act, makes it obligatory on the principal employer to pay compensation to the accident victim, the moment it is proved that the work executed by the immediate employer, is ordinarily a part of the business of the principal employer and that he would have to engage his own employees to do such work, as part of his business, but for the contract. Element of supervision of the principal employer in the execution of the work entrusted to an immediate employer is also another factor to be taken to consideration, while determining the liability under Section 12(1) of the Workmen''s Compensation Act. The activity for which, work has been entrusted to an immediate employer, viz., the contractor was ordinarily a part of their work, i.e., trade or business. On the facts of their case and applying the principles stated supra in the various decisions, this Court is of the view that the contract executed by the school, with the contractor, forms part of the trade or business and hence, the school is liable to pay compensation to the legal representatives of a deceased workman.

Yet another aspect to be considered is whether the execution of any agreement by the immediate employer, viz., the contractor, to indemnify the principal employer, the school, would disentitle the injured workman or the legal representatives from claiming compensation against the principal employer. Such an agreement or contract, if any, entered into between the principal employer and Contractor can only govern their inter se rights and would not in any way affect the rights of the workman or the dependants to get their compensation either from the principal employer or from the Contractor. Option is given to the claimants to claim compensation from anyone of them or both.

Provision of Section 12(1) of the Workmen''s Compensation Act, would apply notwithstanding the agreement or contract entered into between the principal employer and contractor regarding their liability for payment of compensation under the Act. Section 12(2) of the Workmen''s Compensation Act, confers right on the principal employer, who is made liable to pay compensation under the provisions to get himself indemnified by the contractor and in such circumstances, both the principal employer and the contractor would be jointly and severally liable to pay compensation. The claimants can always exercise their option. Thus, from the line of judgments, stated supra, it could be seen that the claim against the principal employer, is maintainable and the principal employer is liable to pay compensation. For the forgoing reasons, this Court is of the considered view that there is no illegality in the orders of the Labour Commissioner, warranting interference. Hence, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.