Harbans Singh, J.
1. Facts giving rise to these Firs-Appeals from Order may briefly be stated as follows: The work of lining of Nangal Hydel Channel was given on contract basis to a number of contractors. Certain portions of the canal were entrusted to each one of the various contractors. The portion between ED 157375 and 157500 warwith M/s. Sardara Singh Niranjan Singh, On 12th of May, 1954, at about 8.30 a. in. G. M. C. (sic) No. PNE 3569 loaded with bajri was going along the ramp leading to the canal bank when its power failed and it began to go dowp the slop-of the ramp. It got out of control and ultimately overturned resulting in serious injuries to two of the labourers employed on the truck. The injured werei removed to the hospital and the matter was reported to the Sub-Divisional Officer wh(sic) sent a report to the police. It was found by the police to be a mere accident.
Under the Workmen's Compensation Act Rs. 2,016/- were paid by the State Govt. to Meha-Singh and Rs. 1,680/- to Tarsem Singh in respect of the injuries suffered by them. Under Sub-section (2) of Section 12 the Government, after having paid the amount, as the principal, claimed to be indemnified by the contractor. Inter alia, is detained a sum of Rs. 3,696/- which was due to M/s. Mohinder Singh Gurbachan Singh who were said to be the owners of the truck of the persons working the truck. It may be mentioned here that Mohinder Singh Gurbachan Singh had also the contract of lining the canal over a portion of the canal. Mohinder Singh Gurbachan Singh got (sic) notice issued to the Government under (sic)Civil Procedure Code, calling upon it not to detain the amount. The Superintending Engineer, Nangal Circle, Rupar, consequently, referred the matter to the Commissioner under the Workmen's Compensation Act for determining the dispute about the right of the Government to seek indemnity. According to M/s. Mohinder Singh Gur-bachan Singh the truck in question at the time of the accident, was working under the control and for the business of M/S. Sardara Singh Narinjan Singh and consequently, both the.firms Sardara Singh Narinjan Singh and Mohinder Singh Gur-bachan Singh were made parties. A number of preliminary matters were raised which it is not necessary to detail here. The main issues were as follows :-
(1) Whether M/S. Mohinder Singh Gurbachan Singh were appointed as contractors of M/S. Sardara Singh Niranjan Singh respondents or vice versa?
(2) Whether M/S. Mohinder Singh Gurbachan Singh were doing any work of the respondent firm or vice versa by means of truck No. PNE 3569 on the date and the time of accident?
(3) If the above issues were proved whether the respondents were not legally liable for the indemnification of the amount paid to the injured labourers
The position taken up by M/s. Sardara Singh Niranjan Singh was that their lining work had finished and they never got any bajri through this truck. On the other hand, the position taken up by M/s. Mohinder Singh Gurbachan Singh was that about 6 to 7 days before the occurrence, through the good offices of Mehar Singh, Overseer in charge, the services of the truck had been lent to M/s Sardara Singh Niranjan Singh and the labourers were also engaged and paid by that firm. The learned trial Court found that the plea taken by M/s. Mohinder Singh Gurbachan Singh was false and that the track was not under the control of or exclusively iised by M/s. Sardara Singh Niranjan Singh, However, it found that both the firms were in the nature of contractors from the Government and because the Government as the principal, had paid the compensation under Sub-section (i) of Section 12 of the Workmen's Compensation Act, both the firms were liable jointly and severally to indemnify the Government. Both the firms have filed separate appeals against this order.
2. On behalf of M/s. Mohinder Singh Gurbachan Singh the main point raised is that construction or lining of the canal cannot be said to be the 'ordinary business or trade' of the P. W. D. Irrigation Branch of the Government and henceunder Sub-section (i) of Section 12 Government was not liable to compensate any labourer who was injured while doing the work in connection with the lining or construction of the canal. This point waa not raised in the. Court below but being a legal question I allowed it to be argued. As this point affected the State Government I adjourned the case on two occasions to allow the State Government to be represented.
3. It was argued oh behalf of the appellants that the Ordinary trade of business of the Irrigation Department is to supply canal water and theoriginal work of construction of the canals may bea work ancillary to its ordinary work but cannot be said to be in the nature of its ordinary trade or business. Reliance in this respect was placed on three decided cases.
In Habia Md. v. G. I. P. Railway, AIR 1929 Bom 179, the G. I. P. Railway had to electrify a railway track. In connection therewith they 'built a power station near Kalyan and had to construct a transmission line to carry electric power to various sub-stations on the railway. This work of constructing the transmission line had been entrusted to an independent contractor and the deceased workman died while employed by this independent contractor during the course of his duties in connection with the erection of the steel towers which had to carry the overhead cables. These electric towers were not on the railway track but were at a distance of 400 to .700 feet from the railway line which was to be electrified. Relying on a number of English rulings it was held that the construction of a power house or transmission lines for supply of electric current to its sub-stations for electrification of its railway line can, at best, be ancillary or incidental to but not a part of process in the business which the company carried on. In one of the cases relied on. Wrigley v. Bagley and Wrigbt, (1901) 1 KB 780, a firm of engineers had contracted with the owners of a cotton-spinning factory to put a new driving wheel into the steam engine. A workman suffered injury during this process and it was held by Romer, L. J., as follows:-
'Putting a new driving wheel into an engine cannot be said to be part of, or a process in, the business of cotton spinner any more than building the factory in which they intend to carry on their business can be said to be a part of, or process in that business.'
The learned counsel for the appellants argued thatjust as the building of a factory cannot be said tobe the ordinary business of a cotton-spinning com-pany and constructing of a power station and thetransmission line not part of the ordinary businessof a railway company, similarly the constructionof the canal cannot be considered to be a processin the ordinary business of the Irrigation Department. The learned counsel further referred to S.M. Ghoshe v. National Sheet and Metal WorksLtd., AIR 1950 Cal 548. In this case it was heldthat the painting of a factory cannot be said tobe in the ordinary business of National Sheet andMetal Works. In New India Tannls Ltd. v. Aurora Singh, (S) AIR 1957 Cal 613 it was held asfallows : -
'Where a company carries on the business of manufacturing goods and requires a factory for performing the manufacturing process and the factory requires a chimney, the work of occasional repairs to the chimney is no part of the ordinary trade or business of the company. The business of the company in such a case Is to manufacture the goods which it produces. The manufacture-may be done inside a factory and the factory may require a chimnev which would occasionally need repairs but repairing the chimney can in no view be a part of the company's trade or Business whether ordinarily or extraordinarily.'
Oh the basis of these, the learned counsel went to the extent of urging that even the maintenanceor the repairs of the railway line or the railway track would not be in the ordinary course of business of the Railway and, consequently, even the repairs and maintenance of the canals would not be in the ordinary course of the business of the Irrigation Department.
4. The learned counsel for the respondent, however, referred to Periyakkal v. S. I. Railway Co., Ltd., Trichinopoly, AIR 1935 Mad 721 where the learned Judges after considering the decision in Rabia Mohammad's case, AIR 1929 Cal 179 came to the conclusion that the business of keeping the railway line in proper trim is certainly in the ordinary course of business or trade of a railway company whose main business may be to work as carriers. In that case a workman suffered injury in connection with the construction of a bridge and it was observed that inasmuch as the construction of the bridge was for the maintenance of the railway line as distinct from the laying of the original railway track the same must be treated to be in the ordinary course of the business or trade of the railway.
5. I have given my anxious thought to the entire argument and I am definitely of the view that there can be no manner of doubt that the main business of the Irrigation Department is to maintain the canals in proper trim and to arrange for the storage and the supply of the water for irrigation and other connected purposes. The question, however, is whether the original construction of the canals can be treated to be outside the scope of the ordinary business of the Irrigation Department.
In my view, none of the decided cases directly assist us in deciding this point. The building of a factory for running a manufacturing process or construction of a power station and the transmission lines for supply of electric power to the substations meant for the electrification of the railway line, are quite different from the construction and maintenance of the canals so far as the Irrigation Department is concerned. In case of a manufacturing company, the erection of the factory to house the machinery etc., can reasonably be treated as an ancillary work. Similarly it is open to the railway not to have its own power stations and transmission lines and towers to obtain supply from an electric supply concern. The same cannot, however, be said about the Irrigation Department. It is an essential part of the Department's work to plan and lay out canals by which means the water can be supplied to the public bringing revenue to the Department. I am, therefore, of the view that the construction of the canals cannot be separated from the lining of the canals as well as their maintenance thereafter and must be treated to be in the ordinary course of business or trade of the Irrigation Department.
6. In view qf the above, therefore, the State Government, as the prinicpal, was certainly bound to pay compensation under Sub-section (i) of Section 12 of the Workmen's Compensation Act.
7. The question that arises next is whether any one of the firms is liable to indemnify the State Government under Sub-section (2) of Section 12, and .if any, one of these firms is liable to indemnify the State Government, whether thatfirm, in its turn, can claim to be indemnified by the other firm under the latter part of the Sub-section (2) of Section 12.
8. The position taken up by M/s. Mohinder Singh Gurbachan Singh that they had nothing to do with the carriage of material on the day in question and that the truck was entirely under the control of M/s. Sardara Singh Narinjan Singh cannot be accepted at all. (After considering the evidence his Lordship proceeded.) It is, therefore, not difficult to accept the evidence on the record that the track in question was carrying bajri for M/s. Sardara Singh Niranjan Singh. If the truck was not under their exclusive control, then the supply of bajri was obviously made on a contract basis. It was up to M/s. Sardara Singh Niranjan Singh to arrange for the supply of the bajri, and instead of doing it themselves they had obviously entered into a contract with M/s. Mohinder Singh Gurbachan Singh for the supply of the bajri though the terms on which the supply was being made had not been brought on the record by either of the two firms.
9. The result of the above discussion, therefore, is that the truck was engaged at the time inconnection with the work of lining of the canal.This was in the course of the ordinary business ortrade of the Government and the Government was,therefore, principally liable. As the State Government had given the contract for doing the lining work to M/s. Sardara Singh Niranjan Singh andthe bajri was being brought for their work andthey are, therefore, liable to indemnify the Government. The truck as well as the labourers werein the employment of M/s. Mohinder Singh Gurbachan Singh and were supplying the bajri underan agreement to M/s. Sardara Singh NiranjanSingh. M/s. Mohinder Singh Gurbachan Singh, inturn, are therefore liable to indemnify M/s. Sardara Singh Niranjan Singh the net result beingthat the Government must be indemnified ultimately by M/s. Mohinder Singh Gurbachan Singh.However, if the Government cannot recover themoney from M/s. Mohinder Singh Gnrbachan Singhthe primary liability of M/s. Sardara Singh Niranjan Singh to indemnify the Government will stand,though M/s. Sardara Singh Niranjan Singh, inturn, will be entitled to get themselves indemnifiedfrom M/s. Mohinder Singh Gurbachan Singh. Fromthe record it appears that the Government has already detained some amount from M/s. MohinderSingh Gurbachan Singh and if that be the case,the Government's claim would stand satisfiedwithout its first realising the money from M/s. Sardara Singh Niranjan Singh and then M/s. SardaraSingh Niranjan Singh realising the same from M/s.Mohinder Singh Gurbachan Singh. The appeal filedby M/s. Sardara Singh Niranjan Singh is, therefore, partly accepted to the extent of modificationof learned Commissioner's order in the terms statedabove. The appeal filed by M/s. Mohinder SinghGurbachan Singh will stand dismissed. In view ofthe fact that the question was far from clear, theparties will bear their own Costs in this Court.