1. In this case the accused undertook to serve the complainant as an elephant driver and received an advance of Rs. 10, on condition of working as agreed upon. He has been accordingly ordered, with his consent, to serve as an elephant driver and to repay the advance within a period of one year under Section 2 of the Workman's Breach of Contract Act.
2. Objection has been taken on the return as to this case that an elephant driver is not a workman or labourer as contemplated by Section 1 of the Act, and reference has been made to Muni Chundra v Hariram Ahom (1881) S.C.L.R. 254 where the Calcutta High Court took the view that a mahout or elephant driver does not come within the provisions of Act XIII of 1859. In that case the Deputy Commissioner, who made the reference, was of opinion that the accused, an elephant driver, was a domestic servant, Although the judgment gives no reasons, we presume the Court agreed with this view. With due deference, it seems to us absurd that an elephant driver can properly be called a domestic servant, because the word 'domestic' implies doing something inside or near a house. An elephant driver does no such duty, at any rate in a case like the present one. In Emperor v. Devanpa Ramappa I.L.R(1918) . 43 Bom. 607 21 Bom. L.R. 277 the accused had entered into a contract with the complainant, engaging to remove a hundred logs of timber from a forest to a forest depot, a distance of twenty-two milos, and had received an advance of Rs. 440. It was held that a contract of this sort- was not a contract of an artificer, workman or labourer. But the judgment says that the reason for that ruling was that the contract did not show that the person contracting to have the work d me bound himself to render personal labour; and in that case it was also held that, although the contract contained a covenant that the accused should do the work on his own persons responsibility and with his personal labour, yet there was really no probability, or even possibility, of the accused doing such personal labour. The per cent case is quite different. Here the accused is an elephant driver who has actually to work with his hands in driving the elephant. That is he has manual duties which bring him within the category of a workman or labourer. In our opinion an elephant driver conies within the meaning of those words in Section 1 of the Act
3. We, therefore, see no reason to interfere. The record and proceedings to be returned.