Rajindar Sachar, J.
1. The filling of this appeal ill befits the State which should be anxious to alleviate the misery of the poor workman's family by paying some compensation rather than create hurdles.
2. The petitioner was employed on the construction of a bridge which was being built on the National Highway between Nathdwara and Ganwaguda. He was getting wages of Rs. 45/- per month and as a result of accident died on 30-5-70. His son filed an application under the Workmen's Compensation Act, 1923 (hereinafter to be called the Act) which is an Act to provide for the payment by certain classes of employers to their workmen of compansation for injury by accident. Amongst the objects mentioned at the time of framing of the Act it was mentioned that the general principles of workmen's compensation command almost universal acceptance and that the advisability of the legislation has been accepted by the great majority and the Government of India believed that public opinion generally is in favour of legislation. The claimant applied under the Act for the compensation due to him on account of the death of his father in the course of his employment. It was pleaded in the return that the deceased Girdhari was only a casual labour and did not come within the meaning of workman under the Act. Another objection taken was that the work which was being performed was not the trade or business of the employer & therefore the Act was not applicable. At the time of arguments another point namely, that the Act was not applicable to the famine relief work was also taken. The Tribunal has rejected the contention and has held that the deceased was a workman and was not engaged in casual nature of work; that the work performed by the Public Works Department on National Highway is the trade or business and that the deceased could not be excluded from the definition of a workman. He also rejected the contention that the Act is not applicable to famine relief work. As a result he awarded Rs. 2700/- so the claimant by his judgment dated 15-2-73. One should normally have thought that the department having failed before the Tribunal will rest and pause & not pursue the unfortunate victim of the accident. The Department however thought otherwise and has come in appeal to this Court.
3. Not such argument is necessary to affirm the finding of the court below that the deceased was not working in the casual nature. It is common case that the deceased was engaged in the work of building a bridge between Nathdawara and Ginwaguda and besides him 200-300 persons were working. The accident took place when the bridge collapsed and the deceased was covered under the debris. The definition of workman in Section 2(1)(n) 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) employed on monthly wages not exceeding five hundred rupees in any such capacity as is specified in Schedule II. The said Schedule gives a list of persons who subject to the provisions of Section 2(1)(n) are included in the definition of workman, it includes at item (viii)(e) those employed in the construction, maintenance repair of demolition of any road, bridge, tunnel or canal. The petitioner's employment was not casual. The Public Works Department is engaged in the construction of bridges and it can not therefore be said that the deceased was not employed in the employer's trade or business. In my opinion therefore issues Nos. 1 and 2 were correctly decided by the trial court, and I would affirm them.
4. Issue No. 3 is as follows:
Whether the Workmen's Compensation Act is not applicable to the famine relief work
The argument by Mr. Calla for the appellants is supported by evoking the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964 (hereinafter to be called the '1964 Act'). Reference is placed on Section 3 which says that not with standing anything contained in any labour law, no such law shall apply nor the same shall be deemed ever to have applied to the famine relief work or the employees thereof in respect of any matter covered by any such law (emphasis supplied). The argument of Mr Calla is that as Section 3 exempts the applicability of any labour law to the famine relief work provisions of the Act are not attracted because the same are labour law. No doubt the Act is a labour law as broadly understood & had there been no contrary indication in the 1964 Act the argument, unfortunate as it may have been to workman's interest may have had some force. But this argument is not supported by reading of the 1981 Act. Section 2(c) of the 1934 Act defines 'labour law' to mean any of the enactments as in force in Rajasthan relating to labour and specified in the Schedule. The schedule gives a list of four Acts, but Workmen Compensation Act is not included in the Schedule. An argument had been raised in the lower court which was also pressed before me that the definition in Section 2(c) of 1964 Act includes all the labour laws which are in force in Rajasthan in addition to the specific Acts mentioned in the Schedule. and thus the applicability of the Act is excluded The argument is misconceived. The definition of labour law only encompassess those enactments which are in force in Rajasthan relating to the labour and specified in 'he Schedule. This obviously means that the enactments in force in Rajasthan but not specified in the Schedule are outside the scope of definition of Section 2(c). Before the appellant can take advantage of Section 3 it had to be shown that the labour law which the claimant invokes is covered within the schedule. It is nobody's case that the Workmen Compensation Act is covered in the Schedule. As the claim was under the said Act the contention') of the appellant is without any merit. I could hardly imagine that the State would be seeking to carry on work of building bridges and claim exemption from the unfortunate accident that may take place during the court of employment. Such exemptions, if claimed would be a retrograde step and I am glad that the 1964 Act does not support the plea of the Department.
5. At this stage Mr. Calla says that the State of Rajasthan was not made a party to the application and the same was not maintainable. According to learned Counsel as the funds are to come out of the State revenue the same should have been made a party. The short answer to that is that objection was never raised before the Tribunal and is too late in the day for Mr. Calla to be allowed to urge this point. I may note that the Executive Engineer of the Public Works Department which was constructing the bridge is a party and in my opinion that was sufficient compliance. In any case this point cannot be allowed, to be urged in appeal for the first time.
6. The result is that I find no merit in the appeal and the same is therefore dismissed with costs through out.