Nagar Palika vs Roshan Ali

N.K. Mody, J.—Being aggrieved by the award dated 27.10.1999 passed by Commissioner, Workmen''s Compensation (Labour Court, Mandsaur) in Claim Case No. 2/WC/90 whereby the claim petition filed by the respondent was allowed and a sum of Rs. 14728.80 was awarded as compensation along with interest at the rate of 12% per annum, present appeal has been filed which was admitted for filial hearing by this Court on 26.7.2006 on the following questions of law:

(i) Whether the respondent is covered by the definition of workman as provided u/s 2(i)(n) of the Workmen''s Compensation Act, 1923?

(ii) Whether the Commissioner for Workmen Compensation was within his jurisdiction to award compensation for injury not covered under Schedule II and levy penalty?

Short facts of the case are that respondent filed a claim petition before the learned Court below alleging that the respondent was in the employment of the appellant and was getting salary of Rs. 1170/- per month. On 5.9.1989, at about 4.00 p.m. when the respondent was working as masson under the employment of appellant, in Municipal Colony, Mandsaur, at that time, the respondent fell down with the result the respondent sustained fracture in his left hand resulting with permanent disability has occurred to the, respondent, therefore, the respondent is entitled for compensation under the Provisions of Workmen''s Compensation Act. Claim Petition was opposed by the appellant. It was alleged that no injury has been sustained by the respondent at the time when he was working with the appellant. It was prayed that the claim petition be dismissed.

After framing of issues and recording of evidence, by the impugned order learned Court below found that the respondent sustained injuries when he was working with the appellant. It was also found that there was permanent disability of 16% for which compensation of Rs. 14,728.80 paise was awarded against which the present appeal is filed.

Learned Counsel for the appellant submits that the date of the accident is 5.9.1989 at that time, definition of ''workman'' was as under:

''Workman'' means any 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).

Learned Counsel for the appellant submits that the definition of workmen was amended by Act No. 46/2000 with effect from 8.12.2000 whereby certain words were omitted. It is submitted that at the relevant time, a person can be a workman only if he is in the employment of a casual nature and who is employed other than for the purposes of the employer''s trade or business. It is submitted that reliance was placed on a decision in the matter Lakshminarayana Shetty Vs. Shantha and Another, , wherein a labourer while doing work of painting fell clown and died - claim for compensation under the Workmens Compensation Ad was denied, Hon''ble Apex Court observed that since the injured was not in the employment of the owner, however will not fall within the ambit of the Workmen''s Compensation Act. Further, reliance was placed in the matter of Dr. B. Radhakrishna Vs. Smt. Gouramma and others, , wherein Karnataka High Court held that in a case where the contract was not given for the which he was carrying trade, therefore, owner cannot be held liable for compensation. Lastly, reliance was placed on a decision in the matter of Central Mine Planning and Design Institute Ltd. Vs. Ramu Pasi and Another, , wherein Hon''ble Apex Court has held that in a case where a casual worker not employed for the purpose of employer''s trade or business sustained injury during the course of employment, is not a workman within the definition of Section 2(i)(n) and his claim was not maintainable before the Commissioner.

Mr. Sameer Verma, learned Counsel for the respondent submits that learned Court has rightly held the respondent entitled for compensation. Learned Counsel has further submitted that it was not a case of the appellant before the learned Court below that since the respondent was not employee of the appellant and the purpose for which the respondent was working was other than trade or business of the respondent, therefore, trie appellant cannot be permitted to raise this ground before this Court. Learned Counsel has placed reliance on a decision hi the matter of Gore Lal Vs. Dropadibai and Others, , wherein Division Bench of this Court has held that whether the employment of a particular workman is of casual nature or otherwise depends upon the nature of employment and onus in such cases is upon the employer to prove the conditions necessary for excluding a person from the category of workmen.

It was further held that a person employed in construction work of a building at. a rate of wages whether determined by the hour, by the week or by the day is in employment which is not of casual nature. Further, reliance was placed on a decision of the Andhra High Court in the matter of P. Galireddy and another Vs. Chinna Ramaswamy Goud and others, , wherein it was held that words ''and'' occurring in between the words ''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'' must be read conjointly. A person engaged on casual basis for the purpose of trade and business of the employer must be a workman, it was held that a person falls within the ambit of one of the two ingredients and does not come under the other ingredient, can still be termed as a ''workman''. Further reliance was placed on a decision of the Division Bench in the matter of Assistant General Manager, State Bank of India Vs. Asha Chouhan, , wherein Division Bench of this Court held that death of a person employed by a bank as electrician to maintain regular supply of electricity connection and deceased was working as an electrician on contract basis and was being paid according to the work performed and no document placed on record to substantiate that the deceased being paid fixed salary every month for his services, it was held that the deceased was workman within the meaning of Section 2(i)(n) of the Act as maintenance of electricity was part of trade or a business of the bank.

From perusal of the record, it is evident that the respondent has. filed claim petition alleging that the appellant sustained injuries when he was working under the employment of the appellant. The petition was opposed by the appellant on the ground that the respondent did not sustained any injury when he was working under the appellant. It was not a case of appellant before the learned Court below that since the work for which the respondent was appointed, was not a trade or business of the appellant and therefore, the appellant is not liable. It was also not a case of the appellant that employment of the respondent was casual in nature. It is for the first time the appellant has raised this ground that the appellant is not liable for the payment of compensation because the respondent was not casual labour nor the work which was being done by the respondent was not of appellant''s trade or a business.

In the circumstances, it cannot be said that the appellant can be permitted to raise this ground since the plea which is being raised by the appellant is a mixed question of fact and law, which cannot be decided unless and until plea to this effect is made and the evidence is led. Since the ground was not taken by the appellant in the written statement, neither the evidence was led nor any cross-examination was made, therefore, at this stage, the appellant cannot be allowed to challenge the validity of the order passed by the learned Court below.

In view of the above, the appeal stands dismissed.