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Ghasiram Motiram Kulmi and ors. Vs. Smt. Nannibai Nathulal and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 135 of 1958
Judge
Reported inAIR1960MP267; [1960(1)FLR366]; (1960)ILLJ789MP
ActsWorkmen's Compensation Act, 1923 - Sections 2
AppellantGhasiram Motiram Kulmi and ors.
RespondentSmt. Nannibai Nathulal and anr.
Appellant AdvocateW.Y. Pande, Adv.
Respondent AdvocateN.L. Maharshi, Adv.
DispositionAppeal dismissed
Cases ReferredStuart v. Nixon and Bruce
Excerpt:
.....who is actually engaged in digging a well. if we are to hold that if a workman is employed in the operation of actual digging then he is a workman under the act and the compensation payable under it can be claimed for an accidental injury to him or for his accidental death but the moment the digging is complete any person engaged in completing the construction of the well or even a person engaged in preparing a scaffolding for aiding the process of digging is not a workman, ft would be a strange result not in consonance with the object and spirit of the act and would be dearly such as could not have been contemplated to flow by the framers of the act......that nathulal could not be said to be a workman as contemplated under the act as he was not a person engaged for 'making an excavation' nor can it be said that his employment was not of a casual nature. 3. on the other hand mr. maharshi for the respondents contended that he would be a workman as defined in section 2(n) of the workmen's compensation act as he in the present context falls under clause xvi of schedule ii of the act. the learned counsel relied upon the decisions reported in popatlal v. bai lakhu, air 1952 sau 74, sitharam reddiar v. ayyaswami, air 1956 mad 212 and ramnivas v. mt. mariam, air 1951 pat 260, in support of his contentions. 4. the term 'workman' is defined by section 2(n) of the workmen's compensation act. material part of it as applicable to the present.....
Judgment:

V.R. Newaskar, J.

1. The appellants, who are the residents of Mouja Kodaria engaged the services of a mason named Nathulal for plastering a wall of a well. The welt had already been dug and was deeper than 20 feet below the ground level. While Nathulal was engaged in plastering a newly constructed wall of the well a portion of it fell down and he sustained injuries in that accident and died as a result. An application was thereupon submitted by the wife and the mother of the deceased for compensation under the provisions of Workmen's Compensation Act before the Commissioner appointed under the Act.

The claim was opposed by the appellants on the ground that the said mason Nathulal was not a workman within the meaning of the term as used in the Act and as such the respondents were entitled to no compensation. There were other contentions raised besides this but the same are no longer material in view of the only point pressed in this appeal as to the deceased Nathulal being a workman under the Act, which the Commissioner found against the appellants.

2. Mr. Pandey who appeared for the appellants contended that Nathulal could not be said to be a workman as contemplated under the Act as he was not a person engaged for 'making an excavation' nor can it be said that his employment was not of a casual nature.

3. On the other hand Mr. Maharshi for the respondents contended that he would be a workman as defined in Section 2(n) of the Workmen's Compensation Act as he in the present context falls under Clause XVI of Schedule II of the Act. The learned counsel relied upon the decisions reported in Popatlal v. Bai Lakhu, AIR 1952 Sau 74, Sitharam Reddiar v. Ayyaswami, AIR 1956 Mad 212 and Ramnivas v. Mt. Mariam, AIR 1951 Pat 260, in support of his contentions.

4. The term 'Workman' is defined by Section 2(n) of the Workmen's Compensation Act. Material part of it as applicable to the present case is :

'In this Act, unless there is anything repugnant in the subject or context, (n) '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) .....

(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 oi 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, include a reference to his dependants or any of them......'

Now it appears clear from the definition that in order that a person should be a workman as defined, if he be a person whose employment is ofcasual nature, then to exclude such a person from the definition he should have been employed otherwise than for employer's trade or business. It therefore follows that if a workman is employed For the purpose of trade or business of an employer then even if his employment be of casual nature still he can fall within the category of a workman provided other conditions o the section are fulfilled: vide Abdul Hussein v. Secretary of State, AIR 1933 Rang 244, AIR 1956 Mad 212 and Manton v. Cantwell, 1920 AC 781. In the last mentioned case Lord Birkenhead, L. C., in his speech in the House of Lords dealing with a similar expression in the definition of 'workman' under an English statute observed:

'The language of the passage I have just read is perhaps somewhat open to criticism on the question of draftsmanship, but the effect of it is nevertheless plain. The meaning of the second limb ot the sentence is that if a man be employed for the purposes of the trade or business the employer is liable to him even though the employment be of a casual nature'.

5. Having regard to these authorities the fact that the employment of Nathulal might be of a casual nature would not be material as he was engaged for the purpose of the employer's business of agriculture, vide AIR 1952 Sau 74. But this is not all. It may be contended that in view of Clause (ii) of the definition only such workmen as are employed on monthly wages not exceeding Rs. 400/-who are included within the term and the persons employed on daily wages are not included. This contention has been considered in Ellerman's City and Hall Lines v. Asis Thomas, AIR 1938 Bom 110, where Beaumont, C. J., held, Sen, J., agreeing with it :

'I feel no doubt whatever that the meaning ot the expression 'monthly wages not exceeding three hundred rupees' means wages which do not exceed on an average of Rs. 300/- a month. That construction is supported by Section 5.'

This decision is followed in Alimohamed v. Shankar, AIR 1946 Bom 169, by Macklin and Rajadhyaksha, JJ. I agree with this.

6. The next and more difficult hurdle in the way of the respondent is whether the said Nathulal can be said to have been employed in any such capacity as is specified in Schedule II. Now having reference to Schedule II, it appears that the only provision in Schedule II which can possibly apply is that contained in Clause XVI which is as follows :

'employed in the making of any excavation in which on any one day of the preceding twelvemonths more than fifty persons have been employed or explosives have been used, or whose depth from its highest to its lowest point exceeds twenty feet.'

7. Now it is found that the well in question was deeper than 20 feet. That is a finding of fact. But the question is whether the workman in question can be said to have been employed 'in the making of any excavation.' The 'expression' is capable of a wider as well as a narrower construction. It may either mean a workman who is actually engaged in digging a well. It may even include a workman who is employed after the digging is over in making constructions such as a wall, plastering it and in raising scaffolding for the purpose. The question for consideration is whether we should adopt a narrower or a wider construction.

If we have a look at the preamble it is clear that the Act is designed to provide for payment by certain employers to their workmen compensation for injury by accident. Having regard to the scope and intention of the Act, it is the wider construction which should be preferred to the narrower one as held by the Bombay High Court in Koynabai v. Bombay Municipality, AIR 1938 Bom 155, where Beaumont, C.J., following the House of Lords' case of Lysons V. Andrew Knowles and Sons, Ltd., Stuart v. Nixon and Bruce, 1901 AC 79. If this principle is clear, as it seems to me it is, then it is clear that the expression 'making of excavation' cannot be confined to mere process of digging but should include ancillary processes such as constructing wall to put it in sound condition, plastering the same or even raising necessary scaffolding for the purpose.

If we are to hold that if a workman is employed in the operation of actual digging then he is a workman under the Act and the compensation payable under it can be claimed for an accidental injury to him or for his accidental death but the moment the digging is complete any person engaged in completing the construction of the well or even a person engaged in preparing a scaffolding for aiding the process of digging is not a workman, ft would be a strange result not in consonance with the object and spirit of the Act and would be dearly such as could not have been contemplated to flow by the framers of the Act.

8. For these reasons I agree with the view that the deceased in this case was a workman as defined in the Act and the compensation was payable to him under the provisions thereof.

9. No other question is raised. The appeal istherefore dismissed with costs throughout.


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