1. This is an appeal on behalf of one Paresh Chandra Ganguli wno claimed compensation originally from Jawahir Press and subsequently, by an amendment of the application, irom Nandilal Jain, proprietor of the said Press. There was another amendment in that the claim made by the petition was for a half monthly payment of Rs. 30/- which was subsequently altered, to a claim for a lump sum payment. These amendments were allowed by the learned Judge in the absence of the opposite party, but no point is sought to be made out of his omission to issue the necessary notice.
2. The appellant's case was that he was employed as a machine-man under the opposite party and that when so employed, he contracted the occupational disease of lead poisoning, The allegation was denied by the opposite party whose case appears to have been that the machine which the appellant had to handle was not made of lead and therefore there could be no occasion for his contracting lead poisoning because of his occupation under the opposite party.
3. One of the questions in such circumstances relevant to Section 10 of the Act would be the date when the accident was caused which would mean the date on which the appellant was first absent from duty, if he was absent continuously for a succession of days. The learned Judge has pointed out that there is no evidence so far as that point is concerned, but he has principally thrown out the appellant's, application on the ground that (a) he had not made out that he was employed on premises where 10 or more persons had been employed during the preceding 12 months and (b) that he had not established that the condition of his body had been caused by employment under the opposite party.
4. It is perfectly clear from the evidence led in the case and the judgment of the Commissioner that the terms of Clause (2) of the Schedule were not closely examined by any of the parties. It seems to have been overlooked that the definition of manufacturing process to which the clause refers is the definition given in the Factories Act, 1934, and not the definition given in the later Act of 1948. As a result of that oversight the definition of 1948 seems to have been accepted without question as the definition applicable, and since that definition contains a clause referring specifically to printing, no difficulty was felt in holding that so tar as the employment of the appellant was alleged to have been in or in connection with a manufacturing process Clause (2) of Schedule 2, Workmen's Compensation Act was satisfied. The clause where a reference is made to printing did not, however, occur in the definition of 1934 and to my mind it should have been considered whether that fact was sufficient to exclude the case from Clause (2) of Schedule 2, Workmen's Compensation Act, or whether S. Section General Clauses Act, made the definition of 1948 applicable.
5. As regards the two points on which the learned Commissioner relied, I do not think that the first is sustainable. All that Clause 2 requires is that 10 or more persons must have been employed onany one day of the preceding 12 months. The learned Commissioner himself 'points out that according to the opposite party's own evidence heemployed. 8 men in the Press, but occasionally a more men were employed. If that was the evidence, the Commissioner's finding is obviously incorrect, as the number of persons employed on some of the days at least would be 11, .But it has'been pointed out to us that the opposite party's own evidence, instead of containing an admission that besides the 8 men 3 more men were employed, contains a denial that any durwan or any clerk was in his service at all. On the true state of the evidence, therefore, the finding of the Commissioner must be sustained although, as I have pointed out, on the learned Judge's summary of the evidence it is obviously unsustainable.
6. On the next point, however, the finding of the Commissioner is firm. As regards the commencement of the disability, the learned Advocate for the appellant wanted to make use of an unsigned letter which is to be found on the record and which purports to inform the appellant that he had been absenting himself from 21-3-1950. It is not known how this piece of paper came into the record at all or who produced it. In any event, it is unsigned and it was not put to the opposite party and no use could possibly be made of it in a Court of law,
7. Assuming, however, that the date of the accident was 21-3-1950, it would appear from the appellant's own evidence that his doctor examined him only on 20-2-1951, when he found a certain condition of his body. But the appellant admitted that, during the interval, he had been employed in a similar occupation under as many as three other masters, viz. P.R. Sen & Co. the Modern Press and the Tara Press. The question, therefore, arises that even assuming that on 20-2-1951, the appellant was suffering from lead poisoning, he might have contracted it under one or other four employers and not necessarily under the first. It is clear that unless the possibility of the disease having been contracted under the other three employers is excluded, the liability cannot be fastened upon tile opposite party. On that point there is the assertion of the appellant and the denial 'of the opposite party. But whether a particular disease was contracted at a time when the person concerned was employed under A or B or C is a pure question of fact and I cannot see how it can be agitated in this appeal. Even assuming that it can he gone into, I cannot see how any exception can be taken to the finding of the Commissioner.
8. In my view there are no merits in this appeal and it must be dismissed with costs hearing fee being assessed at two gold mohurs.
S.R. Das Gupta, J.
9. I agree.