Juthi Devi and Others vs Pine Chemicals Ltd. and Another

R.P. Sethi, J.—Whether a person employed in a premises where actual manufacturing process has not commenced would be deemed to be

a workman u/s 2(1)(n) of the Workmen's Compensation Act is a substantial question of law to be decided in this appeal.

Facts giving rise to the formulation of the aforesaid substantial question of law are that one Sain Bahadur who was employed as chowkidar by

the respondent No. l through respondent No. 2 as security guard died on May 17, 1979 while on duty when on May 15, 1979 suddenly heavy

machines lying in the premises of the employer fell over him as a result of which he received multiple injuries and later on died in the S.M.G.S

Hospital, Jammu. The injuries were received by him during the course of the employment of the respondent employer. Appellants herein claiming

to be legal heirs and dependant on the deceased filed a claim petition before the Commissioner under the Workmen's Compensation Act on

January 21, 1981 for award of compensation under law.

In the objections filed on behalf of the respondent it was contended that the deceased ; was not a workman as defined u/s 2(1)(n) read with

Schedule II of the Workmen's Compensation Act and that he did not receive injuries arising out of and in the course of his employment. It was

submitted that the deceased was employed as a security guard in the premises of respondent No. l whose duty was to keep a watch only. The

area where the deceased met with the accident was declared as prohibited because the goods lying there were highly inflammable and the

deceased was required to make patrolling to and from outside the said area and that when the virulent wind blew out on May 15, 1979 the

deceased received fatal injuries on account of the act of God.

On the pleadings of the parties, the Com-missioner under Workmen's Compensation Act (hereinafter called the Commissioner) framed the

following issues:-

(a) Whether the respondent No. 1 is not the employer of the deceased Sain Bahadur within the meaning of Section 2(e) of the Workmen's

Compensation Act, 1923?

OPD-1

(b) Whether the deceased was an employee with the respondent No. 2?

OPD-2

(c) Whether deceased is a workman as per definition of Section 2(1)(n) of the Workmen's Compensation Act, 1923, if so, what would be the

effect on the petition?

OPD

(d) If issue No. (c) is not proved, whether deceased was an employee with respondents Nos. 1 and 2?

OPP

(e) Whether the deceased Sain Bahadur employee of respondents met with an accident on 15th May, 1979 and died due to the accident arising

out and in the course of his employment with the respondents?

OPP

(f) Whether the claims have been filed by the competent persons?

OPP

After referring to different provisions of law and circumstances of the case the Commissioner came to the conclusion that the deceased did not fall

under the definition of workman as given in Section 2(1)(n) of the Workmen's Compensation Act (hereinafter referred to as Act) and consequently

dismissed the petition. The present appeal has been filed against the Award of the Commissioner on the ground that his order was contrary to the

provisions of law and the facts of the case.

I have Heard the Learned Counsel for the parties and have perused the record.

Section 2(1)(n)(ii) provides that a person other than a person whose employment is of a casual nature and who is employed otherwise than for

the purposes of the employer's trade or business and is employed in any capacity as is specified in Schedule II of the Act would be deemed to be

workman for the purposes of the Act. Schedule II Clause ii of the Act provides that any person employed in any premises wherein or within the

precincts whereof a manufacturing process as defined in Clause (k) of Section 2 of the Factories Act 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 1 and steam water or other mechanical power or electrical power is used, shall be deemed to be a workman.

A person shall deemed to be a workman if he is.:

(a) employed by an employer i.e. there must be a relationship of master and servant between the two;

(b) his employment is not of a casual nature. However a person who is employed for the ; purposes of employer's trade or business would be a

workman even if his employment is of a casual nature; and

(c) he is either a Railway servant subject to the qualifications mentioned in Schedule I of Clause (n) or must be employed on monthly wages up to

Rs. 1000/- in any of the capacities specified in Schedule II of the Act; and

(d) he is not a member of the armed forces of the Union.

Influenced by the fact that the respondent No. l had not started any manufacturing activity in their premises the Commissioner found the deceased

to be not a workman under them,

Section 2(1) of the Factories Act defined the worker as:-

(1) ""Worker"" means a person employed directly or by or through any agency including a contractor with or without the knowledge of the principal

employer whether for remuneration or not in any manufacturing process or in cleaning any part of the machinery or premises used for the

manufacturing process or in any other kind of work incidental to, or connected with, the manufacturing process or the subject of manufacturing

process but does not include any member of the armed forces of the Union"".

The Act was enacted with the object of realization that a Legislation was necessary for the achievement of the ideals of social security of the

workmen employed in the Industry and dealt with the subject of protecting their hardships arising from accidents. The Act assumed a greater

importance after the nation committed itself to the ideals incorporated in the Constitution of India particularly in the preamble for achieving

socialistic society in the country. The general approach of the authorities under the Act should, therefore, be ordinarily to award compensation to

the workman who sustains injuries arising out of and in the course of employment. The authorities are not expected to adopt a technical approach

inconsistant with the provisions of law with the object of taking away the benefit from the workmen and depriving compensation to their families for

which the Act was enacted. The employer is liable to pay compensation at the fixed rates as specified in Schedule I of the Act leaving no discretion

with the authorities in the matter of quantum of compensation. The authorities under the Act should avoid adopting the traditional conservative and

the literal approach while interpreting the provisions of the Act and should not ignore the consideration of fairness, justice, inconvenience, absurd,

arbitrary and the mischievous results which may follow an account of the verdict given by them. The present trend and the stress of judicial

interpretation is on the 'purposive approach' and not the orthodox 'literal approach'.

Keeping in view the aforesaid test and the definition of the workman given in Section 2(1)(n) Schedule II of the Act read with Section 2(k) and

(1) of the Factories Act it would appear that a person employed in a factory where the manufacturing process has not commenced would not be

deprived of the provisions of the Act and excluded from the definition of the workman. In the definition of 'manufacturing process' the emphasis

appears to be not upon the actual process but upon the nature and intention of the employer to carry on the trade activity. The definition does not

limit the manufacturing process to its generic and natural import and is artificially projected beyond the scope of natural meaning thus covering a

very wide range of activities. It is the intention, object and the purpose for which the factory is contemplated to be installed and manufacturing

process carried which is relevant and not the actual manufacturing process. If it is accepted that a person employed in a factory which has not yet

commenced the production has to be deprived of the benefit of the Act, the purpose and object of the Legislation would be defeated. Today's

presently expanding and huge Industries cannot commence the actual production for a number of years despite employment of thousands of

workmen in the process leading to the manufacturing process contemplated by such Industry. Such an interpretation would deprive a large number

of workmen of the benefit of the provisions of the Act, which could not have been the intention of the Legislature. Similarly even if a factory is

forced to stop the manufacturing process on account of strike, layoff, natural calamities, nonavailability of raw material or such other conditions, the

workmen employed in such factory cannot be deprived of the benefit of the Act merely on the alleged ground that no manufacturing process was

being carried on in the premises at the relevant time. Each case has to be judged on its own facts, regard being had to the nature of the process

contemplated to achieve the eventual result. The Legislature had used the word 'manufacturing process' and not the 'manufacturing business' or

'trade'. The process commences as soon as effective steps are taken for a commercial and trade activity connected with the manufacturing as

defined under various sub-clauses of Section 2(k) of the Factories Act. The process does not depend upon the ultimate result of its being

succesfull in the form of actual manufactured product. There may be a manufacturing process even though it is unsuccessfull.

The Commissioner, therefore, was not justified in holding that the deceased was not a workman of the respondent No. 1

Shri O.N.Zadu a witness of the employer has admitted that the machinery had been stored oh spot but no formal factory had come into

existence. He has, however, submitted that even though one brick wall had been constructed the other sides were covered by the barbed wire. He

has, however, stated that the security guard was not permitted to go towards the shed where some machinery had been installed. The employer

has, however, not brought anything on record to show that the factory did not exist on spot. The Commissioner, therefore, wrongly decided issue

(a) against the appellant and in favour of the respondent No. 1. The finding of the Commissioner on issue (a) is set aside and the deceased Shri

Sain Bahadur held to be workman under respondent No. l. Respondent No. l is deemed to be employer of deceased u/s 12 of the Act. In view of

finding on this issue, issue (c) is also decided against the respondents.

No finding is required to be given on issues (b), (d) in view of clear finding arrived at issue (a).

A perusal of the pleadings and evidence produced in the case clearly established that Shri Sain Bahadur met with an accident on May 15,

1979 arising out of and in the course of employment with the respondents.

Sher Bahadur, Dewan Singh, Ram Bahadur and Lok Bahadur witnesses produced by the claimant, have proved the accident which arose out

of and in the course of employment. In consequence of his having received the injuries he died on May 17, 1979 in S.M.G.S. Hospital, Jammu.

Shri O.N.Zadu Ex-manager of the respondent No. l and Ramesh Chander, Security Guard, witnesses produced by respondents have not denied

the accident and eventual death of the deceased.

The Madhya Pradesh High Court in Smt. Satiya and Others Vs. Sub-Divisional Officer, P.W.D. (Buildings and Roads) and Others, after

considering various aspects of the case and the provisions of law came to the conclusion that a watchman is a workman under the Act and held

(Para 9 -p.398):

The functions of a watchman are such as enjoin him to maintain the building inasmuch as he is required to keep it going and to preserve it against

unwarranted interferences from unauthorised persons and from cattle nuisance. He was also required to keep it clean by sweeping the premises

and by dusting it. He was thus engaged in the upkeep of the office for the purposes of keeping it in efficient state and his services were

indispensable for maintenance of the office. It has been pointed out that even some cash was kept in the office, and, therefore, he was there to

guard it. All these services would undoubtedly show that he was engaged in the maintenance of the office. He had not been murdered for any

private reasons but he suffered death while trying to maintain the building in the course of his duty. In our opinion the services rendered by him

would be for the maintenance of the office and building and thus construed, he was 'workman' as defined under the Act and we hold so"".

It was next contended on behalf of the respondents that no compensation could be granted to the dependents of the deceased workman on

account of his being a Chowkidar. It is contended that as the Chowkidar is not directly connected with the manufacturing process in the premises

he cannot be deemed to be a workman under the Act. The argument is devoid of any legal force in view of the definition of the workman under the

Act as discussed hereinabove. The workman employed in a premises where manufacturing process is intended to be carried on is not necessarily

required to be actually connected with the manufacturing process. Any person engaged in such premises who is contributory to the intended

manufacturing process would be deemed to be a workman for the purposes of the Act.

The respondents have failed to prove that the deceased was specifically debarred from entering the area where he met with the accident. There

is no ground or justification for depriving the claimants of the deceased from claiming compensation under the provisions of the Act. Issue (e) is,

therefore, decided in favour of the petitioners-appellants and against the respondents.

u/s 8 of the Act the compensation is liable to be paid and distributed to the dependents of the deceased. u/s 2(d) of the Act following relatives

of the deceased workman are deemed to be dependents, namely:-

(i) a widow, a minor legitimate son, an unmarried legitimate daughter, or a widowed mother; and

(ii) if wholly dependent on the earning of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is

infirm;

(iii) if wholly or in part dependent on the earning of the workman at the time of his death -

(a) a widower,

(b) a parent other than a widowed mother,

(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate if married and a minor or if widowed and a

minor,

(d) a minor brother or an unmarried sister or a widowed sister if a minor,

(e) a widowed daughter-in-law,

(f) a minor child of a pre-deceased son,

(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or

(h) a paternal grandparent if no parent of the workman is alive.

The dependency has to be decided with respect to the date of death of workman.

The petition was filed before the Commissioner by the widows of the deceased who were admittedly dependent upon him within the meaning

of Section 2(1)(d) of the Act.

The respondent No. 2 submitted in the objections that the appellants-claimants were not the wives of the deceased workman but did not

produce any evidence on record to prove the allegation. The petitioner was drawing a sum of Rs. 180/- per month as salary. Sher Bahadur :

another chowkidar of the respondent No. 1, has stated that he alongwith deceased was drawing Rs. 200/- per month as his salary. Shri O.N.Zadu

the Manager of the respondent who appeared in the witness box did not deny the fact that the : deceased was drawing Rs. 200/- per month as his

wages.

Issue No. (f) is accordingly held in favour of the petitioner-appellants and against the respondents.

As the deceased died on account of the injuries received in the accident while in the employment and service of respondent No. l when he was

drawing Rs. 200/- per month as his salary, his dependents are entitled to the payment of Rs. 16,800/- as compensation in terms of Section 4 read

with Schedule IV of the Act payable by the employer, respondent No. l. As the employer made default in paying compensation due under the Act

within one month from the date it fell due the claimants are held entitled to the award of interest at the rate of 6% per annum of the amount due

payable to them u/s 4-A of the Act.

All the petitioners are held entitled to share equally the compensation alongwith interest. The amount falling due to the share of the minors shall

be deposited in their names in fixed deposits till they attain the age of majority.

This appeal is accordingly accepted with costs which are assesed at Rs. 500/-.