1. This is an appeal preferred against the order made by the Court of Additional Commissioner for Workmen's Compensation, Madras, in W.C.C. No. 147 of 1950.
2. The facts are:--The appellant Sitharama Reddiar is a petty ryot of North Arcot district owning 4 acres of dry lands. There was a small well in his field. On account of the failure of monsoon for four years in succession, the well had got dried up. Therefore, he deepened it with a band of diggers of whom the respondent Ayyasami Gounder was one. The digging operations started in February 1948. The appellant or his father supervised the work. They paid the diggers advance at 12 annas plus 13/4 measures of rice every day and supplied them with gunpowder for dynamiting the rocks. On 26 March 1949 when dynamite was used for digging operations it resulted in explosion. The respondent was injured. He was taken to the hospital and his right arm was amputated up to his elbow and he lost three fingers in his left hand. Thereupon this respondent preferred an application before the Additional Commissioner for Workmen's Compensation which was summarily rejected on the ground that the respondent was not a workman as defined in Section 2(1)(n) of the Workmen's Compensation Act. There was an appeal to the High Court and Mack, J., in A.A.O. No. 642 of 1950 set aside the order and remanded it for fresh disposal according to law.
3. The learned Commissioner who heard this remanded application came to the conclusion that the respondent was a workman as defined in Section 2(1)(n) of the Act and awarded him the specified compensation of rupees 1,077-4-10. The defeated employer appeals.
4. The short point for determination is whether the respondent is a person who has to be excluded from the definition of the expression 'workman' under Sub-section (1), Clause (n), of Section 2 of the Workmen's Compensation Act, VIII of 1923.
5. In order that a person may be excluded from the definition of the expression 'workman,' the following conditions must occur:--
(a) his employment must have been of a casual nature; and
(b) he must have been employed otherwise than for the purpose of the employer's trade or business.
A person to be excluded from the definition of 'workman' as defined in this clause must not only be one 'whose employment is of a casual nature' but also one 'who is employed otherwise than for the purposes of the employer's trade or business.' Both these qualifications must be satisfied in order to exclude a person from the category of workman under the Act: Perlyakhal v. Agent, South Indian Railway Co. Ltd. Trichinopoly A.I.R. 1935 Mad. 721; Vinayaka Mudaliar v. Mundla Pottiamma : AIR1953Mad432 ; Batcha Mestri v. Shanti : AIR1946All473 ; Arumugham v Nagammal A.I.R. 1949 Mad. 462. See also the House of Lords' decision Manton v. Cantwell 1920 A.C. 781 : 123 L.T. 433 : 89 L.J. P.C. 73 : 36 T.L.R 534 : 13 B.W.C.C. 55 H.L.J. Thus, if a man is employed for the purpose of a trade or business, the employer is liable even if the employment is of a casual nature : Abdul Hussain v. Secretary of State A.I.R. 1933 Rang. 244; K.A.K. Master v. Ramdhari: A.I.R. 1936 Rank 493.
6. The question whether the employment of a workman is of a casual nature depends on the evidence as to the nature of the employment. The onus in such cases would be on the employer to prove the condition which is necessary for the purpose of excluding a person from the category of a workman, and it has to be shown that the workman's employment was of a casual nature : Ebrahim Haji Jusab v. Jainibi Amuddin : AIR1933Bom270 ; Stoker v. Wortham (1919) 1 K.B 499. The word 'casual' as used in this Act is not a term of precision, and is incapable of being exactly defined. It is used here not as a term of precision, and is incapable of being exactly defined. It is used here not as a term of precision but as a colloquial term : Knight v. Bucknill (1913) 57 Sol. Jou. 245. It seems to imply something midway between the regular employment of a workman and an engagement for a single day: see Halsbury's Laws of England, Vol. 34, Para. 1144. Whether an employment is of a 'casual nature' or not is a question of fact depending on the circumtances of the particular case.
7. The English law on the subject is the same as in India because the section is only a reproduction of the English Workmen's Compensation Act, 1906. Ruegg's Workmen's Compensation Act, 1906, defines employment of a casual nature as follows (p. 22):--
The question of casual labour under the Act is a difficult one, and has several times been the subject of judicial decisions.
Casual employment is employment necessitated by chance circumstances. The expression is not used in contradistinction to 'permanent or constant' employment.
The dictionary definitions of the word 'casual' all suggest the same idea:
'Depending on chance; depending on or produced by chance; occurring or coming at uncertain times; not to be calculated on; unsettled; coming without design or premeditation, casual labourer; one who does casual or occasional jobs'--(Murray).
'Happening to come without being foreseen; coming without regularity'--(Webster).
'Happening without design on the part of the agent, or as a mere coincidence; coming at uncertain times or without regularity; a labourer or aritisan employed only irregularly,'-- (Century).
Arising from chance; not certain'-- (Johnson).
'Coming at times; without regularity'-- (Imperial).
A person who is employed one or more days in each week to do work which must be done, or which it is known it will be advisable to do at these times, is not casually employed.
Indeed, whenever the same person is under a contract with an employer to do work at recurring times which must, or which it is known beforehand it will be convenient to do at such recurring times, the employment of such a person is not of casual nature.
On the other hand, although the work must be done at recurring times, if different persons are employed to do such work, it is most probable that such persons are not within the Act, for it must be noticed that it is the employment of the person which is to be of a casual nature, and not the work which is to be of a casual nature. See Thavar Bros: v. Mutta--A.I.R. 1933 Rang. 208.
The decisions which have to be pronounced by the Court of Appeal on the question whether employment is of a 'casual nature' are so far as they go, in accord generally with the views expressed above.
8. These well-known decisions defining the employment of a 'casual nature' are to that effect that it is a chance employment based on no contract to employ, even though there be a reasonable expectation of being employed, e.g., that of a window-cleaner who is only employed at irregular intervals when the lady of the house may think the windows need cleaning : Hill v. Begg (1908) 2 K.B. 802; if there be an arrangement that he is to come regularly once a month and keep the windows clean except when the family is away and the house is accordingly shut up [Be Cozens and Rutherford--52 S.J. 700; so a washerwoman who habitually goes to a private house to wash clothes every Friday and on alternate Tuesdays is not engaged in a 'casual' employment, for it is stable as well as being periodical: Dewhurst v. Mather (1908) 2 K.B. 754. The employment of a temporary cook in a private house while the regular cook was on a holiday was held to be 'employment of a casual nature' and the temporary cook was accordingly held not to be a workman within the section: Stocker v. Wortham (1919) I K.B. 499. To these may be added Hughes v. Walker (1926) 19 B.W.C.C. 79, in which a person was employed to build a wall round the garden of a house and was paid 1s 6d. per hour. The employer found all materials and the work lasted for a few days. It was held that the work was regular and not casual.
9. The Indian case law on the subject is sparse. In Nadirshaw Hormasji v. Krishnbai 60 Bom. 701, Beaumont, C.J. (as he then was), has stated thus at pp. 704-05:
We have been referred to various decisions on the English Act in which the language is similar. I think that the rule adopted in England is this, that it is impossible to define what casual employment is. There are some cases in which the employment is obviously not casual, and other cases in which the employment is obviously casual. There are a number of debatable cases between those two extremes and the courts have held that in those debatable cases the decision of the County Court Judge must prevail. In other words, the rule seems to me to come to this that where there is any evidence to support the finding of the County Court Judge, or in India the Commissioner that the employment either is or is not, casual, then the finding must he treated as a finding of fact, and is not subject to appeal. The present case is clearly within the debatable area, and the Commissioner having come to the conclusion that the employment is not casual, and there being evidence to support that finding, I think we are bound by it, and that it is not necessary to consider whether we should ourselves have taken the same view or not.
In Varadarajulu Naidu v. Masayya Boyan : (1954)IILLJ426Mad a Bench of this Court, where the employer was a contractor for the formation of a road, that the deceased was employed as a cooly maistri under him on Rs. 2-8-0 per day, that the deceased brought four coolies with him and along with them was engaged in breaking stones, and that the deceased was being paid a lump sum of money every fortnight and that he was a regular and continuous worker and not a casual labourer, held that the deceased was a workman within the meaning of the Act. In Popatlal v. Bai Lakhu A.I.R. 1952 Sau. 72, an agriculturist who raised irrigated crops found the old well did not supply an adequate quantity of water and so boring operations were carried on by him and the deceased person was employed by him as a labourer. While the operations were in progress and the labourer was working inside the well, a pipe fell on him and he died in a few hours. The widow of the deceased claimed compensation under the Act which was decreed. It was held in appeal in the High Court that where the agriculturist engaged the person for the purpose of deepening an old well to have a sufficient supply of water for irrigation, the person so engaged is a casual worker but he was employed for the purpose of employer's business and is a workman coming under the definition of Section 2(1)(n) of the Act. In Vinayaka v. Pottiamma : AIR1953Mad432 , Mack, J., held that an employer cannot escape his liability to compensate the workman engaged in a construction merely because construction of house was only his subsidiary business and his main business was something else. Kaynani Industrial Bank, Ltd. v. Ranjan 60 Cal.24; Skates v. Jones & Co. (1910) 2 K.B. 903, and Rabia v. Agent, G.I.P. Railway 53 Bom. 203 were distinguished. Similarly, in Arumugham v. Nagammal A.I.R. 1949 Mad. 462 decided by Mack, J., a contractor had a contract to unload wagons. He employed a maistri who worked under him and engaged coolies whom he paid a fixed sum for unloading each wagon keeping a portion for himself for each wagon. One of the coolies so employed met with an accident while engaged in unloading a wagon and died. On the question as to whether the cooly was a workman and the contractor was liable to pay compensation to the widow, held that the cooly was an employee for the purpose of unloading the wagon at the time of the accident which was the business of the contractor and it could not be said that the employment of the cooly by the maistri was not a contract of service as he was clearly engaged for a specified remuneration to help in unloading a wagon of goods and there was no ground on which he could be excluded from the definition of workman under the Act as such a contractor was liable to pay compensation. In fact as pointed out in a recent Calcutta decision in Chillu Kahar v. Burn & Co. Ltd. : (1953)IILLJ202Cal , with the progress of the times, the conception of the circumstances in which a workman is entitled to compensation has widened and become more and more liberal. The trend of decisions both in England and here in construing the phrase 'whose employment is of a casual nature' is that it refers to kind of service done by the employees rather than to the duration of the service.
10. Turning to the second branch of Sub-section (1), Clause (n), 'employer's trade or business,' 'business' means anything which occupies the time and attention and labour of a man for the purpose of profit: Smith v. Anderson (1880) 15 Ch. D. 247 C.A. It is wider than trade and may include having land and employing a manager to farm it: Harris v. Amory 1866 L.R. 1 C.P. 148; Commissioners of Inland Revenue v. Korecan Syndicate (1921) 3 K.B. 256. A person engaged under a contract of service may be a workman though his duties are connected with sports or amusement, e.g. a professional football player: Walker v. Crystal Palace Football Club, Ltd. (1910) I K.B. 87. The term implied all commercial transactions and is used in the sense in which a man of business would use that word (ibid.). The question whether a casual labourer is employed 'for the purpose of the employer's trade or business 'so as to bring himself within the definition of 'workman' in this clause depends upon the facts of each particular case, and does not turn on the question whether the premises in respect of which the work is done are used solely for business purposes or are used for domestic purposes also: Manton v. Cantwell 1920 A. C. 781, Farleigh v. Parker and Lang (1930) 23 B.W.C.C. 490; Bargwell v. Daniel (1907) 98 L.T. 257.
11. The English law on the subject is set out in the following extract from Ruegg's Workmen's Compensation Act, 1906, at page 24.
Whether the employment is for the purpose of 'trade or business' must be considered with reference to the following interpretations:
Whatever may have been in olden times the restrictive meaning attached to the expression 'trade,' it may now be defined as any traffic or commerce or barter of goods either for other goods or for money.
'Business' was defined by Jessel, M. R., in the case of Smith v. Anderson 15 Ch. D. 258 as meaning ' anything which occupies the time and attention and labour of a man for the purpose of profit.'
In exceptional cases, a trade or business may be carried on although the purpose aimed at is not to secure profit, at all events direct profit. But it is thought that to constitute ' trade ' or ' business' there must be an exchange or barter of goods or exercise of an employment for the purpose of securing an advantage which may be estimated in money or money's worth, either for the person exercising the trade or business, or for others, and that in both cases it must be the occupation or one of the occupations, in which the person is more or less permanently engaged. The cases of Bargwell v. Daniel (1908) 98 L.T. 257. and Miles v. Dawe (1915) 8 B.W.C.C. 225 may be referred to on this question.
12. Bearing these principles in mind, if we examine the facts of the instant case reproduced already, there can be no doubt that the deceased was a workman within the meaning of Sub-section (1), Clause (n), of Section 2 of the Act entitled to compensation.
13. The learned Additional Commissioner was also perfectly justified in pointing out that the respondent would be a workman subject to Section 2(1)(n) and subject to the provisions of that section under Schedule II, Clause (15);, viz., a person employed in any occupation involving blasting operations and Clause (16), viz., a person employed in the making of any excavation in which on any one day of the preceding twelve months more than 50 persons have been employed or explosives have been used or whose depth from its highest to the lowest point exceeds 20 feet.
14. In the result, the appeal fails and in the circumstances dismissed with costs.