Basheer Ahmed Sayeed, J.
1. These two appeals arise out of the orders passed by the Additional Commissioner for Workmen's Compensation, Madras, in W.C.C. Nos. 476 and 513 of 1955. The appellants in these two cases claimed a compensation of Rs. 4,000 each from the opposite party, stating that their respective husbands who were employed as divers for chank-fishing received injuries by accident on 4 February 1955 and 7 March 1955 respectively while working as divers for the opposite party and died as a result of it, one on 8 February 1955 and the other on 10 March 1955.
2. The opposite party disclaimed liability on the ground the husbands of the appellants were not workmen within the meaning of the term, as defined in the Workmen's Compensation Act. The learned Additional Commissioner, in both the cases, framed three issues.
The first was whether the deceased were workmen within the meaning of the Workmen's Compensation Act.
The second was whether their death was due to an accident which arose oat of and in the course of their employment.
The third was what was the amount of compensation, if any, payable to them.
3. On the first issue the learned Additional Commissioner held in both cases that there was no employer-and-employee relationship between the department and the deceased, and that the deceased were not workmen, as defined in Section 2(1)(n) of the Workmen's Compensation Act. On the second issue, he held that the death of the appellants' husbands was due to the accident which arose out of and in the course of their employment. On the third issue, he held that the compensation payable in each case could be a sum of Rs. 3,500 if the parties were entitled to the same. Aggrieved by these findings the appellants have preferred these appeals.
4. It may be mentioned at the outset that after the Additional Commissioner gave these findings, it transpired that each of the parties was paid a sum of Rs. 500 by way of ex gratia compensation for the death of their respective husbands. Probably, if the ex gratia payments had been in proportion to what exactly they would have been entitled according to the calculations given by the Additional Commissioner, these appeals would have been avoided. But actually the ex gratia payment works out at a very low figure, probably one-seventh of what exactly they would have been entitled to if the findings had been in their favour.
5. A preliminary objection was taken by the learned Government Pleader that the findings as to whether the deceased husbands of the appellants were or were not workmen within the meaning of the term as defined by the Workmen's Compensation Act was a pure question of fact, and that no appeal was competent under Section 30 of the Workmen's Compensation Act. In support of his contention the learned Government Pleader relied on the decisions in Ramaswami v. Poongavanam 1953 L.L.J. 735, P.C. Abdulla Kutti v. C. Janaki 1954 L.L.J. 134, Erie County Natural Gas and Fuel Company v. Carroll 1911 A.C. 105, Dharangdhra Chemical Works v. State of Saurashtra 1957 L.L.J. 477. After careful consideration of all the authorities relied upon by the learned Government Pleader, I am of the opinion that notwithstanding the fact that the finding as to whether the deceased husbands of the appellants were workmen or not within the meaning of Workmen's Compensation Act, was a question of fact, still the appeals would lie to determine as to whether the finding had been arrived at properly and correctly on the basis of the evidence adduced in Court and the circumstances that pertain to the matter. The contention in the present cases on behalf of the appellants is that the evidence does not warrant the finding which the learned Additional Commissioner gave, namely, that the divers in the present appeals are not workmen within the meaning of the term as defined in the Workmen's Compensation Act. When such a question is raised it is futile to argue that since the Additional Commissioner has found that there is no relationship of employer and employee between the divers and the opposite party, the question cannot be gone into in an appeal. On the other hand, every one of the cases relied upon by the learned Government Pleader has proceeded on the basis as to whether the courts below have correctly adjudged on the basis of the evidence that the appellants are or are not workmen or employees within the meaning of the term as defined in the respective laws governing the cases. I am, therefore, of the opinion that there is no point in the preliminary objection taken by the learned Government Pleader as to the maintainability of the appeals. As a matter of fact, a perusal of the judgments relied upon by the learned Government Pleader does indicate that after setting out the finding as to the existence of relationship of master and servant or employer and employee or worker and factory-owner, the Courts have gone into the very question as to whether the conclusions arrived at by the Courts below are warranted or not on the evidence on record. This is what exactly the learned Counsel for the appellants invites me to do, namely, to determine whether the conclusions arrived at by Additional Commissioner are well founded and whether they can be upheld in the face of the evidence and circumstances that emerge in the present cases.
6. Then the question that arises for determination is whether in the present two cases there exists a relationship of employer and employee or master and servant between the department of the Government, chank fisheries, and the divers, the husbands of the two appellants. First of all, we have to remember that the business in which the department of Government is interested is to secure chanks-fishing for the same underneath the sea, and for that purpose they have to employ divers. Without the employment of divers by the Department of the Fisheries, chanks cannot be brought up from the sea and the Government cannot carry on business in chank-fishing. The question then is whether there is a contract of service or contract for service as between the divers and the Fisheries Department. In this connexion, it becomes relevant to find out what exactly is the nature of this chank-fishing. A number of divers is required for bringing out chanks from underneath the bed of the sea. It cannot be the case that all these divers who are employed by the Fisheries Department for fishing chanks and bringing them on the surface, are to be classified as independent contractors for the mere reason that they are paid for each chank at certain stipulated rates according to the quality of chank that is brought up. It would then mean that if a 1,000 or 2,000 divers are engaged in the business of picking up these chanks from underneath the sea, the Government Is entering into about 1,000 or 2,000 independent contracts with these persons for the supply of chanks. This could hardly be the case, and It appears to be an inconceivable position that these divers who are employed to bring up these chanks are independent contractors with whom the Government department has entered into a contract for service. On the other hand, the work of the divers is such that they have to perform their duties in accordance with the conditions that have been imposed and which they have to strictly observe in the course of their performing their job. Though the divers are not completely under the control of the Department of Fisheries, still they are certainly under the control of the department to the extent to which the nature of their work and the scope of the business that the Government is engaged in permits or allows; that is to say, the diving by the divers for bringing up chanks, the evaluation of the chanks, the rate of payment, the rejection of the unwanted chanks and their being sent back to the sea, the hours when the divers have to dive and the times they have to stop at the signals given by the guides-all point to the conclusion that the Fisheries Department does exercise such control over these divers as the nature of the business in which the Government department is engaged in permits or allows.
7. The argument of the learned Government Pleader is that simply because these divers are given licences to carry on the profession of diving, it cannot, be said that they are acting under the control of the Department of Fisheries, I do not think that this contention has any force. The licence does really set out the terms and conditions under which diving should be carried out. The conditions in the licence do not enable the divers to do as they please without any control being exercised over their work as divers by the Department of Fisheries. It is not as if the divers can dive In any areas at any time they please, or to dispose of the proceeds to any person and at any rate they please. The control which the Fisheries Department exercises over the divers in chank-fishing is much the same as one could Imagine in the case of other business carried on by the factory-owners such as bidi-factory owners and textile-factory owners. In my opinion, the actual relationship, the character of the business, the nature of the process by which the Government carries on the business of chank-fishing, the actual directions and control in the manner of work to be carried out, exercised on the divers-all point only to the conclusion that the amount of control that could be permitted in the business of this type is really exercised by the Department of Fisheries. And such being the case, the relationship of employer and employee, or master and servant, does come into existence in this case as between the Government department and the divers.
8. The learned Government Pleader and the learned Counsel for the appellants have relied on the same decisions, namely, the decisions in Dharangadhra Chemical Works, Ltd. v. State of Saurashtra 1957 L.L.J. 477 and Chintaman Rao v. State of Madhya Pradesh 1958 L.L.J. 252 in support of their respective contentions. I do not think that the ratio decidendi, as could be gathered from these judgments, helps the learned Government Pleader so much as it helps the learned Counsel for the appellants. The learned Government Pleader has also invited my attention to a judgment of Rajagopalan, J., In W.P. No. 445 of 1954, Annamalal Mudaliar & Bros. v. Regional Provident Fund Commissioner, Mount Road, Madras and Ors. reported in 1955 L.L.J. 674, which was later on confirmed in an appeal by a Bench of this Court. I do not think that the facts in that case are ad idem with the facts in the present cases. The observations made by the Supreme Court at p. 267 in Paras. 9 and 26 in Dharangadhra Chemical Works, Ltd, v. State of Saurashtra A.I.R. 1957 B.C. 264 : 1957 L.L.J. 477 seem to be more apposite and applicable to the facts of the present cases. In that view I am Inclined to hold that the divers in the present cases are certainly workmen within the meaning of the term as denned in the Workmen's Compensation Act, and that the appellants will be entitled to the compensation according to the calculations made by the learned Additional Commissioner. I do not think there is any controversy with regard to the calculations that have been made and the cause of the death of the divers. Such being the case, the wives of the divers will be entitled to a sum of Rs. 3,500 each. I direct that the Government do make payment of these amounts to the appellants who are wives of the divers. Of course, the ex gratia payment made will be taken credit of while making the payment. There will be no order as to costs.