Janki Devi vs Joginder Singh

Gurdev Singh, J.—This first appeal against the order, dated 7th March, 1958, passed by the Commissioner appointed under the Workmen Compensation Act VIII of 1923 arises out of an application made by the appellant Shrimati Janki Devi u/s 10 of that Act seeking direction u/s 4(l)(a) of the Act for payment of Rs. 2400/- by way of compensation to her because of the loss of the life of her husband Gainda Ram, who died as a result of the injuries sustained by him while working as a labourer on the respondent''s building at Rs. 2/8/- per diem. Apart from disputing the rate of the daily wages, the respondent Joginder Singh contested the application inter alia on the plea that the deceased Gainda Ram was not a "workman" within the definition of that word given in section 2(n) of the Workmen Compensation Act, and thus he was not entitled to any relief under that Act. An issue on that point was struck. Various other issues arising out of the pleadings of the parties were also tried by the Commissioner, who on a consideration of the evidence led before him returned the finding that "the employment of the deceased (Gainda Ram) on 4th November, 1956, was purely of a casual nature and he was not a ''workman'' ". In view of this finding the learned Commissioner dismissed the appellant''s claim, though on the merits of the case he had found that if the appellant had a right to receive compensation under Act 8 of 1923, she would be entitled to Rs. 2100/- because of the loss of the life of her husband. It is against this order that Shrimati Janki Devi has come up in appeal.

A preliminary objection to the competency of the appeal has been taken by S. Ranjit Singh Narula, who appears for the respondent. Pointing out that the finding of the Commissioner that Gainda Ram deceased was not a "workman" as defined in section 2(n) of the Workmen Compensation Act as his employment on the date of the accident was purely of a casual nature, he contends that this being a pare rending of fact, no appeal against the same lay u/s 30 of the Workmen Compensation Act. After going through the relevant findings and hearing the parties'' counsel, I find considerable force in this objection.

An appeal is a creature of statute, and on reference to the Workmen Compensation Act 8 of 1923, we find that no general right of appeal against any order passed by a Commissioner appointed u/s 20 of that Act is given to the parties. Section 30 of that Act gives a limited right of appeal. Only the order specified in sub-section (1) of that section are appealable. Though under clause (e) of section 30(1) an order disallowing any claim of compensation by a dependent is appealable, yet it is subject to the restrictions contained in the proviso to that sub-section. The first proviso reads as under:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal.

The question raised in these proceedings relates to the correctness of the finding of the Commissioner about the casual nature of the employment of the appellant''s deceased-husband. That matter has been decided on the basis of evidence adduced by the parties. Thus, it is a finding of fact which the appellant assails. No question of a law is raised in the grounds of appeal nor does the decision of this matter involve any question of law.

It may further be pointed out that even an erroneous decision on a point of law would not warrant an appeal u/s 30 of the Workmen Compensation Act, 1923. The proviso referred to above explicitly lays down that the question of law, which alone justifies an appeal, must be a substantial one. The question "What is a substantial question of law"? was recently answered by their Lordships of the Supreme Court in Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., , in the following words:

The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absured the question would not be a substantial question of law.

Applying this test, it is obvious that the present appeal does not involve any substantial question of law. The decision which the appellant challenges relates to a finding of fact. A similar question came up for consideration before Mack J. in Contractor Kattupuchi Arumugham v. Nagammal AIR 1949 Mad. 482. Relying upon judgment of Beamount C.J. in Nadirsha Hormusji v. Krishanabai Bala AIR 1934 Bom. 199, the learned Judge observed. "There were some cases in which the employment was not casual and other cases in which employment was obviously casual, and that there were a number of debatable cases between these two extremes on which the finding of the Commissioner must be treated as a finding of fact and not subject to any appeal". This, in my opinion, if I say so with respect, is the correct enunciation of the legal position.

The appellant''s learned counsel attempted to justify the appeal by urging that the evidence had not been correctly appreciated by the Commissioner. It is well-settled that mis-appreciation of evidence does not justify interference even in a second appeal u/s 100 of the Civil Procedure Code, which lies on any question of law, which need not even be substantial. If that is the position with regard to a second appeal under the Code of Civil Procedure, I fail to see how an appeal u/s 30 of the workmen Compensation Act, 1923, can be admitted because of a wrong finding of fact based on mis appreciation of evidence. I, accordingly, hold that the appeal is not competent and dismiss the same, but leave the parties to bear their own costs.