Sachidanandam vs Govindaraj and Mohanambal

S. Palanivelu, J.—The first respondent filed an application for compensation u/s 10(1) of the Workmen''s Compensation Act. (hereinafter

referred to as ''Act''). The allegations contained in the claim petition are as follows:

The applicant is a workman employed by the opposite party (appellant herein) for constructing shed for water pumpset for irrigation to lands

and for proper maintenance of pumping equipments used for lifting the water from well. On 07.02.2000, at about 2.30 p.m when the applicant was

in the construction of the pumpset, opposite party No. 1 came and requested opposite party No. 2 to look into her oil pumpset nearby as the

running pump-set engine which was running, could not be stopped. Hence the opposite party No. 2 directed the applicant to go and look into the

same. The applicant, in obedience to the direction of the opposite party No. 2 and for the benefit of the opposite party No. 1 proceeded towards

oil pump-set nearby in the field of opposite party No. 1. Even as the applicant was nearing, the oil pump-set burst and hit on his right knee which

chipped off the right knee cap resulting in bleeding injuries. The opposite parties and others present, admitted him to C.M.C. Hospital. The

monthly wages of the applicant is Rs. 3,000/-. Hence a sum of Rs. 2,36,472/- has been claimed as compensation from the second opposite party.

In the counter filed by the second opposite party (appellant herein), the following are stated:

The claim petition is not sustainable. It is incorrect to state that on 07.02.2000 at about 2.30 p.m when the applicant was engaged in the

construction of the pum-set, the opposite party No. 1 requested this opposite party to look into her oil pump-set nearby which was running and

could not be stopped, that this opposite party directed the applicant to go and look into the same and in obedience to the direction, he went to the

pump-set and on the way he met with the accident, are all false. This opposite party, no doubt employed the applicant for constructing the pump-

set near his well since 02.02.2000. On the forenoon on 07.02.2000, the applicant was doing construction work. At 1.30 p.m he stopped the work

for lunch and during lunch recess, in the absence of this opposite party, the applicant on the request of the first opposite party went to stop the

diesel engine which was running in an erratic manner since the belt got disconnected. The applicant had ventured to help the first opposite party

without the consent/knowledge of this opposite party. The accident did not arise out of and in the course of employment. The applicant was neither

directed nor authorised by this opposite party to stop the pump-set engine. The accident has got nothing to do with the applicant''s employment

under this opposite party. The applicant was purely engaged for construction work and he voluntarily invited the accident out of his own accord.

Since the accident was not in the course of employment or incidental to his employment, this opposite party is not liable to pay compensation. Two

days later FIR was lodged, twisting the facts and suppressing the truth. The petitioner has not sustained any permanent disability. He is perfectly

normal and attending to masonry work as usual. The petition is malafide, motivated and devoid of merits and hence the petition has to be

dismissed.

The authority below, after scrutinising the evidence on record, both oral and documentary, reached a conclusion that the first respondent was

the employee of this appellant and he sustained injury in an accident during the course of and out of employment and hence he is entitled for

compensation to the tune of Rs. 94,589/- under the following formula:

Age : 36 Years

Factor : 197.06

Monthly Income : Rs. 2,000/- (consolidated)

Loss of earning

capacity : 40%

Compensation : 60/100 x 2000 x 197.06 x 40/100

: Rs. 94,589/-

The above said award passed by the Commissioner of Workmen''s Compensation is under challenge before this Court in this appeal.

The following substantial question of law was framed at the time of admission of the appeal.

Is not the order of the Commissioner vitiated by exercise of jurisdiction not vested in him under the statue while assessing the loss of earning power

on his own and by failure to exercise such jurisdiction when he failed to make provision for indemnify u/s 12 and 13 of the Act?

The learned Counsel for the appellant Mr. S. Manohar would strenuously contend that inasmuch as the facts and evidence on record are

otherwise, the authority below has wrongly concluded that the first respondent is an employee under the appellant and hence he is entitled for

compensation, that the first respondent would not come within the purview of ""workman"" as defined in the Workmen''s Compensation Act and that

the authority below has miserably failed to appreciate the evidence on record in a proper perspective.

Arguing on the other side of the coin, the learned Counsel for the first respondent/claimant would submit that the factual findings of the

Commissioner, based on the materials available on record are more appropriate and the appellate court cannot go deep into the oral testimonies

on record, that even if the first respondent is termed to be a ''casual labourer'', still he should be made entitled to get compensation under the

Workmen''s Compensation Act since he fulfills the statutory requirements and that the work undertaken by him at the time of accident was

incidental to the work of his employer, namely the appellant and hence there is no need to disturb the findings of the authority below.

In order to have a thorough glimpse of the matter in issue, it is more advantageous to have re-appraisal of the evidence on record before the

authority below to some extent, without which there could be no just decision.

The second respondent herein, though, remained exparte before the authority below, posed as RW-1 and deposed in the cross-examination

that she did not call the claimant, that he did not lay his hand on pump-set and that she was monitoring the pump-set. She, in her chief examination

had deposed that she did not ask the claimant to go to her land and that he did not even go near her land. In the cross-examination, this appellant

has stated that Mohanambal asked the claimant to stop the pump-set.

Ex.A7, is a xerox copy of a letter reportedly written by this appellant addressed to one Dakshinamoorthy, a trustee of Abdullapuram temple, in

which it is stated that on humanitarian grounds, at the request of Mohanambal made to the claimant, he (appellant) permitted him to go to stop the

engine. This xerox copy was marked through PW-1, the claimant and in his cross-examination it is denied on the side of this appellant that he has

not written any such letter and no panchayat was held in this regard. Ex.A7 is a xerox copy and there is no impediment for the claimant to examine

the said Dakshinamoorthy before the authority below to prove Ex.A7. Since the existence of document itself is denied by this appellant, it is

incumbent upon the first respondent to prove it, but as it was not done, Ex.A7 remains unproved.

For better understanding of the matter involved in this proceedings, it is profitable to have extraction of Section 2(1)(n) of the Act which 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 purposes

of the employer''s trade or business) who is-

(i) a railway servant as defined in Section 2(34) of the Indian Railways Act, 1989 (24 of 1989), not permanently employed in any administrative,

district or sub-divisional office or a railway and not employed in any such capacity as is specified in Schedule II, or

(i-a)(a) 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 in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a company,

and 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;

(ii) employed in any such capacity as is specified in Schedule II,

Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in

writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman

who has been injured shall, where the workman is dead includes a reference to his dependents or any of them.

The learned Counsel for the appellant would argue that the first respondent was only a casual labourer and he could not avail the benefits

proposed under the Act. On the strength of earlier authorities of the Supreme Court, in Lakshminarayana Shetty Vs. Shantha and Another, , the

Supreme Court while dealt with a matter in which a labourer when working under a contract of work of painting the house died. The High Court

entertained the claim petition under Workmen''s Compensation Act. But the Supreme Court is of the view that such a person could not come

under the category of an ''employee'' as defined under the Act and hence no compensation is available to the heirs of such labourer. The judgment

of the Supreme Court runs as follows:

The respondents are the daughters and wife of the deceased Ramu who was engaged by the appellant to paint the house. While he was doing

this work, he unfortunately fell down and died. The claim for compensation under the Workmen''s Compensation Act was denied, but on a writ

petition being filed the High Court has allowed the same claim.

No reasons have been given by the High Court for coming to the conclusion that this was a case which fell within the domain of the Workmen''s

Compensation Act. There was apparently a contract between the appellant and Ramu whereby Ramu had undertaken the work of painting the

house. Whether the action of the appellant by engaging a person in this manner makes him employee or a workman of the appellant was a question

to be decided. The case did not fall within the four corners of the said Act and, therefore, the decision of the High Court was incorrect. We,

therefore, allow the appeal and set aside the decision of the High Court.

In Central Mine Planning and Design Institute Ltd. Vs. Ramu Pasi and Another, , the Apex Court while specifically determining the proposition

as to the rights of a casual worker, has held that when he was not employed for the purpose of employer''s trade or business, if he sustains injury

during the course of his employment he could not be treated to be a ''workman'' within the definition of Section 2(1)(n) of the Act and the claim

was not maintainable before the Commissioner. Their Lordships have expressed a view that ""a bare reading of the Act shows that the expression

''workman'' as defined in the Act does not cover a casual worker and that there was also no definite material adduced to show that the claimant

was employed for the employer''s trade or business."" In the said case, the employee suffered injury on his left ring finger when he was working in

the factory of the appellant. The Labour Court allowed the claim by stating that he was a casual worker. On appeal, the High Court confirmed the

said award and the matter was carried before the Supreme Court, in which the above said opinion was rendered.

In order to bring an individual to the terms ''casual worker'' it must be shown that he was not employed for a work to be done which was

incidental or connected to the trade or business of the employer. If the work assigned to him and undertaken by him is found to have been any

nexus or incidental to the trade or business of the employer, then, eventhough he is a casual labourer, then he could be termed to be a ''workman''

as defined in the Act.

The learned Counsel for the appellant also placed much reliance upon a decision of the Supreme Court reported in 2008 (2) CCC 297(SC) -

Om Prakash Batish v. Ranjit @ Ranbir Kaur and Ors., in which the Apex Court has held that the workman was employed for a limited period for

carrying our repair work in a residential house, could not come within the description of a workman as contained in the provisions of the Act.

The learned Counsel for the first respondent would garner support from a Division Bench judgment of the Kerala High Court in which the

learned judges have expressed their opinion that a person to be excluded from the definition of ''workman'' as defined in the clause must not only

be one ""whose employment is of a casual nature"" but also one who is employed otherwise than for the purpose of the employer''s trade or business

and that both these qualifications must be satisfied in order to exclude a person from the category of workman under the Act.

As per this court, as reported in 1988 II LLN 521 - between Sri Padmanabha Theatre and Commissioner for Workmen''s Compensation and

Ors., a person though employed to clean the roof, may be occasional, it cannot be said that it was otherwise than for the purpose of employer''s

trade or business and under such circumstances, it cannot be taken out of the definition of ''workman'' under the Act and it is to be held that he was

employed for the purpose of employer''s trade or business and he sustained injuries during the accident that occurred during and in the course of

the employment.

The learned Counsel for the e appellant placed reliance upon a Division Bench of this court reported in 2003 4 L.W.522 - The Dean,

Agricultural College and Research Institute, Kilikulam, Vallanad 627252 v. 1. Tmt. S. Sakilabanu, 2. Thiru. S. Mani Contractor; 3. The Executive

Engineer, PWD (Private Housing Division), Tuticorin-2, 4. V. Sudalaimuthu � had occasion to have a discussion with reference to the definitions

of employer and workman under the Act, held that the Principal employer of the workman has to be held liable when the work was entrusted to a

contractor by the PWD which was for the building required for Agricultural College who in turn entrusted the work of constructing with the Public

Works Department. The operative portion of the judgment goes thus:

In this case also, the construction put up by the Dean is not for his business and it is only an educational institution. However, construction has been

entrusted to a building contractor through PWD and therefore it is the PWD Contractor, who is the principal employer under whom the workman

was engaged and therefore it is the contractor, it at all, who is liable as the principal employer, and the sub-contractor under the immediate

employer may also be proceeded. Considering the pronouncement of the Supreme court to proceed against the Dean of the College it has to be

pointed out that the Dean may not fall within the four corners of the Workmen''s Compensation Act and to bring it within the four corners the

workman has to proceed only against the principal employer, namely, the PWD Contractor and the immediate employer, the fourth respondent

herein as the case may be. The view taken by the Commissioner for Workmen''s Compensation holding that the Dean is the Principal employer

and against him a claim under the Act is maintainable cannot be sustained at all and it has to therefore be set aside.

20.(i) Repelling the contention of the appellant, the first respondent''s learned Counsel distinguished the above said decision, as to the facts and

circumstances and relied upon a subsequent Division Bench decision of this court which has distinguished the above said decision bearing in mind

the facts available in both cases i.e. in 2004 (3) CTC 770 - K. Kamalaveni and Anr. v. The Managing Director, Subbathal Spinning Mills (P)

Limited, 128 Bhavani Main Road, Ashokapuram, Erode and Anr., the facts of the case are that the deceased was a labourer under a contractor

but entered into a contract with the first respondent, a spinning mill for construction of a roof of the godown in the mills and the deceased was

working for the purpose of construction in the roof of the godown, on 19.01.1993, he fell and sustained injuries who later on died. The

Commissioner found that he was not a workman and that he did not sustain injuries in the accident which arose out of and in the course of his

employment, rejecting the claim. On appeal, the Division Bench of this court found the deceased as ''workman'' as described under the Act and

allowed the appeal.

20.(ii) In Kamalaveni''s case, this court has held that the first respondent managmement 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 second

respondent contractor and hence the mills are liable to pay compensation to the claimants according to Section 12 of the Act. The Division Bench

has distinguished the facts in Sakila Banu''s case by stating that since the deceased worked under a Sub-contractor who took up the work from the

contractor with whom the Agricultural College entrusted the construction of ladies hostel. In that case it was held that the Dean of the college was

not liable to pay compensation, but PWD contractor who is the Principal employer is liable, who in turn could get it reimbursed from his immediate

employer.

Adverting to the facts of the present case, the work assigned to the first respondent was to construct shed for water pump set for irrigation to

lands and for proper maintenance of pumping equipment used for lifting water from well. Excepting the ipse dixit of the first respondent, there is no

material to show that he was deputed by this appellant to go to the field of the second respondent herein and to look into the pump set in her well.

Of course, the Court could not accept any evidence other than the parties to the proceedings in the site of occurrence. The second respondent has

stated unequivocal terms that she did not make any request to the claimant to come to her land and that he did not even go near her land. But the

appellant in his cross examination would say that at the request of the second respondent, the first respondent had gone to her pump set. When the

oral evidence on record are carefully dissected, it transpires that the appellant did not direct the first respondent to go to second respondent''s land

to do anything. But the first respondent was prompted to go to her land by the request of the second respondent and hence he proceeded. In this

context, this Court sees no role on the part of the appellant and it is difficult to hold that he directed or deputed the first respondent to go to the

second respondent''s land.

It is further observed that if the first respondent has sustained employment injury while he undertakes any work connected either directly or

incidentally to the business of the appellant alone, he could be brought under the ambit of ""workman"". This Court is at loss to find out that the first

respondent went as per the desire and direction of the appellant. In this regard, even if the first respondent is a workman or a casual labourer under

appellant, he could not be held entitled to compensation from the appellant for the reason that he did not do any act which was incidental or

connected to the employment, which was assigned by the appellant. Hence the first respondent is not entitled for the relief.

In view of the above said observations, in the light of the settled position of law, the order impugned, challenged before this Court, has to be

set aside and it is accordingly set aside.

In fine the Civil Miscellaneous Appeal is allowed. No costs. Connected M.P. is closed.