1. In this appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter called the Act) a substantial question of law is urged.
2. According to the appellant, the petitioner's husband Anjanappa who met with an accident at about 3 p. m. on 10-2-1958 was not a 'workman' as defined in Section 2(1)(n) of the Act The case of the petitioner is that on 10-2-1958 at about 3 p. m. while her husband Anjanappa was engaged in his work in the kiln of the appellant, he met with an accident which resulted in his death. It is said that while he was removing earth for making bricks a portion of the earth heaped came down on him and he was crushed to death. These allegations have been accepted by the Commissioner for Workmen's compensation as correct. That finding is binding on us. 'But, the question is whether on the facts found by the Commissioner we can conclude that the deceased Anjanappa can be held to be a 'workman' as defined in the Act. Section 2(1)(n) of the Act defines a 'workman' 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 3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or
(ii) employed on monthly wages not exceeding four hundred rupees, 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 Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.'
In order to be held as a 'workman' the deceased must come within one or the other of the clauses in Schedule II as they stood on 10-2-1958. The Commissioner has come to the conclusion that the present case falls within Clause (ii) of Schedule II. That is also the stand taken by the learned counsel for the respondent. He does not rely on any other clause. Hence it is not necessary to refer to the other clauses in that Schedule. All that we have to see is whether Clause (ii) is applicable to the facts of the case.
3. Clause (ii) of Schedule II as it stood on 10-2-1958 read:
'Employed otherwise than in a clerical capacity in any premises wherein, or within the precincts whereof, on any one day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, as defined in Clause (g) of Section 2 of the Factories Act, 1934 (XXV of 1934), or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water or other mechanical power or electrical power is used.....'
4. It is not proved that in the kiln in question any manufacturing process was conducted, with steam, water or other mechanical power or electrical power.
5. According to Mr. P. Subbarao the learned advocate for the appellant, Clause (ii) of Schedule II is not applicable to the facts of the present case, as no kind of power mentioned in that clause was used in the manufacture of bricks in that kiln. The contention of Mr. Subba Rap finds support from the language of the provision in question. The provision in question firstly deals with the manufacturing process as such; secondly it deals with Incidental or connected processes; but, be it the manufacturing process or any incidental or connected process, in any case the aid of one or the other kind of power mentioned in that clause is necessary for the application of that provision.
6. Mr. Nagesha Rao, the learned counsel for the respondent on the other hand contended that Clause (ii) of Schedule II contains two independent provisions. According to him the clause in question ought to be split up into two and read thus:
(1) Employed otherwise than in a clerical capacity in any premises wherein, or within the precincts whereof, on any one day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, as defined in Clause (g) of Section 2 of the Factories Act, 1934 (XXV of 1934).
(2) Or employed in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water or other mechanical power or electrical power is used.'
In other words, his contention is that the expression 'and steam, water or other mechanical power or electrical power is used' is only applicable to the later part of Clause (ii). This contention if accepted would lead to absurdity. While the manufacturing process as such is not required to be done by the use of any kind of power mentioned in the provision, the incidental or connected processes are required to be conducted by the use of one or the other kind of power mentioned in that clause. We do not think that this contention can be accepted as sound. On a plain reading or the clause it is clear that the expression 'and steam, water or other mechanical power or electrical power is used' applies both to the manufacturing process as well as to the incidental and connected processes.
7. The view taken by us finds support from the decision of a Bench of the Calcutta High Court in Ukhra Farming Corn Ltd. v. Sathu Bala Bagdini, : AIR1955Cal105 . This is what Chakravarthi, C. J. who spoke for the Bench in that case observed;
'The premises must satisfy two conditions one of which is that on any one day during the preceding twelve months, ten or more persons must have been employed there, in a manufacturing process or in any kind of work connected with such process or with the article made and the other of which is that steam, wafer or electrical power must be used in the premises. Persons working within 'within such premises, though not employed in the manufacturing process proper, are within the definition, but persons working outside are not though they may be serving the concern. If the deceased had been employed at a place where the sabai grass was stacked or made into bundles or processed or otherwise made ready for sale, and if these operations could be described as a manufacturing process and if, further, the statutory number of workmen had been employed at the place on any one day during the preceding twelve months and 'power of one of the specified kinds was used, it might have been said that the deceased was a workman'.' (Underlining (here in ' ') is ours)
8. For the reasons mentioned above this appeal is allowed and the order of the Commissioner set aside. In the circumstances of the case we direct the parties to bear their own costs both in this court as well as before the Commissioner.
9. Appeal allowed.