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Smt. Kamla Devi and ors. Vs. Bengal National Textile Mills Limited - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in(1975)IILLJ81P& H
AppellantSmt. Kamla Devi and ors.
RespondentBengal National Textile Mills Limited
Cases ReferredManton v. Cantwell
Excerpt:
.....same. the way, in which the parties led evidence and had conducted the case, shows clearly that issue no. the word 'and' occurring in the definition of workman points out clearly that for taking out a labourer from the category of a workman, both the conditions, i. in other words, both the limbs of the conditions of exclusion have to be satisfied. whitewashing would have undoubtedly added beauty to the factory of the respondents and it would render good look which could attract more customers. it would have further provided good view and. raj rani's case, (supra) are very near to the tacts of the ease in hand, and i think that (the commissioner had clearly fallen in error in not following the judgmen recorded by this court in smt. 500, and the respondents have failed to prove at least..........called the contractor) for the execution of any work, he shall be liable to pay to any workman, employed in the execution of that work, any compensation which he would have been liable to pay if that workman had been immediately employed by him. the said section, however, provides that the mishap for which compensation can be claimed by the workman should have occurred on or about the premises of 'the business, and it further provides that the contractor would be liable to indemnify him (the employer) for the compensation which has been claimed from him by the workman. therefore, even if badal was employed as contractor by the respondents to whitewash the building of their factory and badal had then employed om parkash to execute the said work of whitewashing, the respondents.....
Judgment:

Muni Lal Verma, J.

1. This appeal has been directed by the widow, son and daughters of Om Parkash deceased against the order of the Commissioner under the Workmen's Compensation Act, Ludhiana, whereby he disallowed their claim for Rs. 9,000 by way of compensation for the death of Om Parkash.

2. Their case was that On Parkash was white-washer and he was employed on or about January 19, 1968, by the respondents, to whitewash the factory, where they had been carrying on the business of hosiery, at the rate of Rs. 12 per day as his wages. On January 22, 1968, when he (Om Parkash) was whitewashing the wall of the said factory, a jangla (a sort of parapet) had collapsed, as a result of which it fell down on his head. He was immediately removed to the hospital, but he died on account of the head injury sustained by him. Therefore, Smt. Kamla Devi claiming herself to be the widow, Vijay to be the son and Kiran Bala and Seema to be the daughters of Om Parkash, claimed from the respondents Rs. 9,000 as compensation for his death, with the allegation that he had died on account of accident, which had taken place during the course of his employment. The respondent resisted the claim of the appellants with the pleas that Om Parkash was not a workman and he was not in their employment, and the accident, which resulted in his death, did not take place during the course of his employment, and that as a matter of fact, they had contracted with one Badal to whitewash the factory and he (Badal) had employed Om Parkash as a casual worker to whitewash the building of the factory. Hence, the Commissioner, who heard the case, raised the following issues:

1. Whether the petitioner was an employee of the respondent?

2. Whether the petitioner suffered an accident in the course of employment?

3. To what compensation are the petitioners entitled to?

He held under issue No. 1 that Om Parkash was not a workman and in that view of the finding, he returned verdict on issue No. 2 in the negative. He, however, found under issue No. 3 that the amount of compensation recoverable by the appellants, if issues Nos. 1 and 2 had been decided in their favour, would have been Rs. 9,000. As a result of his findings on issues Nos. 1 and 2, the Commissioner dismissed the claim. Dissatisfied with the said result, the appellants have come up to this Court in appeal.

3. Issues Nos. 1 and 2 are not properly worded. The word 'petitioner' is wrongly mentioned for 'Om Parkash' therein. Further, as would be presently seen, it was for the respondents to prove that Om Parkash was not a workman. Therefore, issue No. 1 should have been 'Whether Om Parkash was not a workman ?' However, the law is well-settled that wrong wording of an issue or misplacement of onus of proof respecting a question of fact does not warrant the setting aside of an impugned order or judgment or remand of the case, especially when the parties to the case were cognizant of the point involved and they had led evidence in proof or disproof of the same. The way, in which the parties led evidence and had conducted the case, shows clearly that issue No. 1 related to the question of Om Parkash being a workman. There is absolutely nothing on the record to show that the parties or any one of them has been prejudiced in his cause on account of the misstatement of 'petitioner' in place of 'Om Parkash' in issues Nos. 1 and 2 or on account of the onus of issue No. 1 having been placed on the appellants. Therefore, nothing turns on the wrong wording of the said issues or of the wrong misplacement of onus on the appellants.

4. 'Workman' is defined in Clause (n) Sub-section (1) of Section 2 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act), as under:

(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) a railway servant as defined in Section 3 of the Indian Railways Act, 1890 (9 of 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 five hundred rupees, in any such capacity as is specified in Schedule n,

whether the contract of employment was made before or after the passing of this Act arid 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 dependants or any of them.

5. It is, thus, clear from the said definition that a workman is a person who is a railway servant falling under Sub-clause (i), or is employed on monthly wages not exceeding Rs. 500 falling under Sub-clause (ii) of Clause (n) of Sub-section (1) of Section 2. The words in bracket exclude the person whose employment is of casual nature and who is employed otherwise than for the purposes of the employer's trade or business from the category of workman. [Therefore, in order to exclude Om Parkash from the category of workman, it was for the respondents to show that he was a casual employee and was not engaged for the purposes of their business, Simiilar view was taken in Smt. Raj Rani v. firm Narsing Das Mela Ram A.I.R. 1964 Punjab 315, wherein it was observed that the onus in such cases would be on the employer to prove the conditions which are necessary for excluding a person from the category of a workman. The word 'and' occurring in the definition of workman points out clearly that for taking out a labourer from the category of a workman, both the conditions, i.e., that the employment was of casual nature and, secondly, that the employment was otherwise than for the purposes of the employer's trade or business, must be proved. In other words, both the limbs of the conditions of exclusion have to be satisfied. The expression 'otherwise than for the purposes of the employer's trade or business' occurring in the aforesaid definition of workman carries significance. Business would mean anything which occupies the time; attention and labour of a man for the purpose of profit. It is wider than trade. .The maintenance and upkeep of the premises of the business must be taken as purposes of the business. Therefore, the maintenance and repairs of the factory of the respondents, where they carried on business, have to be considered as purposes of the business. The said repairs may be minor or major, periodical or permanent. Whitewashing would have undoubtedly added beauty to the factory of the respondents and it would render good look which could attract more customers. It would have further provided good view and. healthy atmosphere for the workman working there. Therefore, whitewashing of the factory of the respondents has to be taken as one for the purpose of their business. According to Clause (viii)(a) of Schedule II of the Act, any person who is employed on the maintenance and repair of any building would be workman within the meaning of Section 2(1)(n) of the Act. It has not been shown by the respondents that the building of the factory was not designed to be or was not more than one storey high above the ground or was not more than twelve feet from the ground level to the apex of the root. In Smt. Raj Rani's case A.I.R. 1964 Punj. 315, the work of painting of the shop, where the business was carried on, was held to fall within the ambit of trade or business of the employer. In that case, Jagdev Dutt, who was employed by the firm Narsing Das Mela Ram to paint their shop, where the business was being carried on, was held to be it workman. The facts of Smt. Raj Rani's case, (supra) are very near to the tacts of the ease in hand, and I think that (the Commissioner had clearly fallen in error in not following the judgmen recorded by this Court in Smt. Raj Rani's case, (supra). Lal Man (A.W. 1) has deposed that the respondent had employed Om Parkash for whitewashing the walls of their factory. Dina Nath (A.W. 2) too stated that he had seen Om Parkash whitewashing the walls of the factory for 3 or 4 days before the accident, which resulted in his death. There is nothing on the record to show that they or any one of them had any motive or reason to make false statements, and I have not been impressed by the reasons given by the Commissioner in disbelieving them. The statement of Panna Lai (R.W. 1), to the effect that Om Parkash was employed by Badal to whom the contract for whitewashing the factory had been given by the respondents, cannot be readily accepted for the simple reason that he was interested in the respondents, being their employee. But even if for the sake of argument, his statement, or the stand taken up by the respondents, is accepted, it would not make any difference. Section 12 of the Act provides that when any person in the course of or for the purposes of his trade or business contracts with any other person (hereinafter called the contractor) for the execution of any work, he shall be liable to pay to any workman, employed in the execution of that work, any compensation which he would have been liable to pay if that workman had been immediately employed by him. The said section, however, provides that the mishap for which compensation can be claimed by the workman should have occurred on or about the premises of 'the business, and it further provides that the contractor would be liable to indemnify him (the employer) for the compensation which has been claimed from him by the workman. Therefore, even if Badal was employed as contractor by the respondents to whitewash the building of their factory and Badal had then employed Om Parkash to execute the said work of whitewashing, the respondents cannot escape their liability to pay the compensation to the appellants on account of the death of Om Parkash, provided he can be said to be workman. The utmost, that can be said in favour of (the respondents, is that the work of whitewashing the building of (the factory was of casual nature. But, as indicated above, it cannot be gainsaid that Om Parkash was employed for the purposes of the business of the respondents, for the obvious reason that whitewashing was for the maintenance and upkeep of the factory building and the same has to be taken for purposes of business of the respondents. That means that one of the conditions required for excluding Om parkash from the category of workman is lacking.

6. The learned Counsel for the respondents, relying on Gopal Das Nandy v. Alladi Bibee 1967-II L.L.J. 95, has argued that Om Parkash could not be considered as workman, because he was not employed in the trade or business of the respondent. I am unable to accept this argument. In that case, one Abdul Oudad Khan had taken Ouladi Khan to help him in a painting job at one house belonging Akshoy Kumar Nandy. It was there that while he was working at a scaffolding, he fell down and died. It was found on the facts of that case that there was no proof that Akshoy Kumar Nandy or his successors were carrying on any trade or business. It was concluded in that case that the employment of Ouladi Khan was of casual and domestic nature. It is important to note that an English case regarding Manton v. Cantwell [1920] A.C. 781, to which reference was also made in Smt. Ray Rani's case, (supra), was referred in Gopal Das Nandy's case (supra). In that case, a casual worker was employed to thatch the roof of the farmhouse, where a farmer lived. The said labourer had fallen from the roof of that house and sustained injuries, which caused his death. lit was found that the farmer did his own thatching work and it was part of his farming work, That being so, it was held that the worker was employed for the purpose of the farmer's trade or business and he was a workman. It is thus, clear that the facts of Gopal Das Nandy's case (supra), were different and, as such, the same does not render any help to the respondents.

7. It, thus, follows from the discussion above that from whatever angle the case may be viewed, Om Parkash was definitely a workman because he was employed to execute the work of whitewashing and his monthly wages did not exceed Rs. 500, and the respondents have failed to prove at least one of the two conditions, i.e., that he was employed otherwise than for the purposes of respondents' business, required for excluding him from the category of workman. The approach of the Commissioner in concluding that Om Parkash was not a workman, was in my opinion, erroneous and against the law, especially when he appears to have approached the question from the angle that the appellants were to prove that Om Parkash was a workman. 'Therefore, I vacating his finding on issue No. 1, hold that Om Parkash was a workman.

8. Dina Nath (A.W. 2) deposed, and Panna Lai (R.W. 1) admitted that Om Parkash had fallen from the roof when he was executing the work of whitewashing and that he was removed to the hospital and he died there or on the wayon account of the injuries sustained by him. Dr. Satwant Kaur (A.W. 4), who performed post-mortem examination on the dead-body of Om Parkash testified that he had died due to shock and intracranial haemorrhage. It is, therefore, evident that Om Parkash had died due to accident, which had occurred during the course of his employment. I decide issue No. 2 accordingly and vacate the finding of the Commissioner on that issue.

9. The monthly wages of Om Parkash, at the rate of Rs. 12 per day, were to be considered Rs. 360. So, according as to Schedule IV read with Section 4(1)(a) of the Act, the appellants were entitled to Rs. 9,000 by way of compensation on account of his death. The Commissioner was, therefore, right in deciding under issue No. 3 that the amount of compensation payable on account of the death of Om Parkash to the appellants was Rs. 9,000. His finding on issue No. 3 is, therefore, confirmed.

10. Under Sub-section (3) of Section 4A of the Act, the appellants could claim interest at the rate of 6% per annum on the aforesaid amount of compensation and they could further claim a sum not exceeding 50% of the aforesaid amount of compensation, by way of penalty from the respondents, They, however, did not claim the same. In view of the disagreement between the parties on the point as to whether or not Om Parkash was a workman, it cannot be said (that there was no justification for the respondents for delaying the payment of compensation. Therefore, I do not think that any amount by way of penalty or even interest, when the same has not been claimed, can be awarded to the appellants from the date of the application. I, however, feel that the appellants should be allowed interest at the rate of 6% per annum for the period the respondents fail to pay the amount of compensation to them after the decision of his appeal.

11. Consequently, I allow this appeal, set aside the order of the Commissioner, and granting the claim of the appellants, direct the respondents to pay Rs. 9,000 by way of compensation to them (the appellants) on account of the death of Om Parkash. The respondents shall further pay interest at the rate of 6% per annum on the said amount of Rs. 9,000 to the appellants with effect from today till the said amount is paid to them. Having regard to the peculiar circumstances of the case, especially when the question of Om Parkash being a workman was not free from difficulty, I leave the parties to bear their own costs.


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