Palaniammal vs Sappani Pillai

R. Balasubramaniam, J.—The appellant in this appeal was the applicant in W.C. No. 92 of 1986 on the file of the Deputy Commissioner for

Workmen''s Compensation, Trichy. The respondent is the respondent is the above proceedings. For the purpose of convenience in this order the

parties in this appeal are referred to in their rank in which they were described in the order of the court below.

The case of the applicant before the lower authority was as follows : Her husband Periasamy was employed by the respondent for constructing

a protective wall to an existing well and in the course of that employment on 22.9.1988 he fell into the well and then ultimately died. Alleging that

there was an employer-employee relationship between the respondent and her husband, the petition for compensation was filed before the lower

Authority. A defence was taken by the respondent that the deceased never worked in the well belonging to the respondent nor worked under him

at any point of time. In support of her case, the claimant examined four witnesses to speak about the deceased having been employed in the

construction work in the well of the respondent. However, the lower authority had proceeded to accept the case of the respondent and held that

the deceased was never employed as a workman under him and dismissed the claim petition. The correctness of this order is questioned in this

appeal.

I heard Mr. Chinnavyram, learned counsel for the appellant in this appeal. From a perusal of the pleading in this case as well as the judgment, it

is seen that the deceased in this case was employed to construct a protective wall to an existing well situated in the land belonging to the

respondent which statement was disputed by the respondent and found in his favour by the Deputy Commissioner. However, without going into

the question whether there was an employer-employee relationship and assuming such relationship exists, the question arises for decision is as to

whether the nature of the work in which the deceased was said to have been employed could be brought within any one of the type of works

mentioned in Sch. II to the Workmen''s Compensation Act. The word ''Workman'' is defined under S. 2(1)(n) of the Workmen''s Compensation

Act, 1923, and it reads as follows :

''Workman'' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose

of the employer''s trade or business) who is (i) omitted. (ii) employed in any such capacity as is specified in Schedule II.

The accident according to the application was on 22.9.1986. Therefore, the law as it stood then alone will apply to the case on hand to decide

whether the applicant is entitled to the compensation or not. The definition of workman underwent a change by the Amending Act 30 of 1995 with

effect from 15th September, 1995. Thus sub-clauses (ia)(a), (b), (c) and (d) came to be introduced in S. 2(n) of the Act, reads as follows :

(ia)(a) master, seaman or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper mechanic, cleaner or any other in connection with a motor capacity vehicle,

(d) a person recruited for work abroad by a company who is employed outside India in any such capacity as is specified in Schedule II and the

ship, aircraft or motor vehicle, or company, as the case may be is registered in India, or

This amendment on facts, does not apply to the case on hand and in any event, they were not in the statute book when the accident took place.

Since the alleged workman did not satisfy the requirement of the S. 2(1)(a)(i), his case has to be necessarily decided with reference to S. 2(1)(n)

(ii) read with Schedule II of the Act. Schedule II of the Act, as it stood on the date of the accident contains 46 entries; out of these 46 entries,

entries 1 to 32 have been introduced into the schedule by the Central Government and entries 33 to 46 were brought into the statute book by the

Tamil Nadu Amendment. A workman to be brought under the Act should not only be any person but that person also should also be employed in

any such capacity as is specified in Schedule II as it stood then. In that schedule, entry Nos. 40 and 41 come into operation in this case for the

purpose of deciding whether the deceased was employed as a workman in any such capacity as set out in Schedule II. Entry No. 40 relates to a

person employed otherwise than in clerical capacity, in the construction, boring or deepening of an open well/dug well through mechanical

contrivances. No mechanical contrivance was in use at that time of the accident in the well. The pleading and the evidence in this case do not bring

the case within this entry. The next entry is Entry No. 41 which deals with the workman employed, otherwise than in clerical capacity, in the

construction, working repair of maintenance of a bore-well, bore-cum-dug well, filter point etc. The facts available in this case do not show that the

well in which the deceased was said to have been working is either a bore-well or a bore-cum-dug well. On facts, it is clear that the capacity in

which the deceased was said to have been working, assuming that claim is true, at the time of his death is not included in any one of the entries in

Schedule II of the Workmen''s Compensation Act. By the Amending Act 30 of 1995, which came into effect on 15th September, 1995, the

Central Government introduced entries from 33 to 48 and the Government of Tamil Nadu by its Amendment in G.O.Ms. No. 1457, dated

13.7.1987 and G.O.Ms. No. 259, dated 31.12.1993 brought in entries from 47 to 53. Entry No. 36 as was brought in earlier by the Tamil Nadu

Amendment was omitted with effect from 1981. As already stated, before the Amending Act 30 of 1995, there was no other entry except Nos.

40 and 41 referred to earlier in the Schedule II to the Statute Book which relates to construction activities in a well. No doubt, entry No. 43

included by the Amending Act 30 of 1995, would squarely apply to the case on hand. But, since it was not on the statute book on the day of the

accident the same could not be taken into account in deciding the present case. On this short ground, the claim for compensation is liable to be

rejected though this ground had not entered into the mind of the Workmen''s Compensation Commissioner while he passed the impugned order.

Since the ground referred to by me goes to the root of the matter, I am of the view that it can be taken into account to sustain the impugned order.

Therefore, I find that no substantial question of law is involved in this appeal and there are no merits also. The appeal therefore and it is accordingly

dismissed without costs.

Appeal dismissed.