1. The appellant-company carries on the business of making extracts of myrobalan and exporting the same to foreign, countries. It has a factory called 'Rong Kuti' where its manufacturing business is carried on. Early in 1953, the chimney needed re-pairs and by a letter written on the 18th of March, the appellant-company engaged one Hazara Singh to dismantle the upper portion of the chimney and hoist a new length of chimney instead. In pursuance of that contract, the work was taken up by Hazara Singh through his men and while the work was being carried on, one Bishan Singh who, among others, was engaged in it, fell from a height of sixty feet and met with an instantaneous death.
2. On the basis of the death of his son by the accident of the fall, respondent No. 1, Aurora Singh Mojbi, made an application for compensation against the appellant und-r the Workmen's Compensation Act. He alleged that Bishan Singh had been employed by the appellant and while so employed, had received personal injury by accident arising out of and in the course of his employment which had resulted in his death. The appellant-company by its written state rent disc aimed liability. The plea taken was that the wont of the fitting of the chimney had been given on contract to Hazara Singh, who was an independent contractor, and that the deceased, while he might have been an employee under Hazara Singh. was never an employee under the appellant. Obviously, with the provisions of Section 12(1) of the Act in. mind, the appellant-company added that the work of fitting the particular chimney or chimneys in general was not a part of its ordinary trade or business. Having taken that plea, however, the appellant company proceeded abruptly to pray that Hazara Singh might be made a party to the proceeding under Section 12(2) of the Act. That prayer was followed up by another contained in paragraph 7 of the written statement which stated that if the appellant-company was made liable for compensation, its right to be indemnified by the contractor to the extent of the decretal amount might be declared.
3. The compensation claimed was Rs. 2400/-on the basis of monthly wages ranging between Rs. 60/- and Rs. 80/-. With regard to the amount of the claim, the appellant-company stated that it did not know what the wages of the deceased had been, but it would submit that his wages could not have exceeded Rs. 30/- or Rs. 35/- per month.
4. The learned Commissioner for Women's Compensation decreed the claim against the appellant-company for Rs. 1803/- together with costs, but he directed that the appellant company would be entitled to be indemnified by Hazara Singh to the extent of the decretal amount. It is against that order that the present appeal has been preferred.
5. It will be seen from what I have already stated that the learned Commissioner held the appellant-company liable on the footing that it had contracted with Bazars, Singh in the course of and for the purposes of its trade or busin ss for the execution of a piece of work, namely, the hoisting of a portion of a chimney, which was ordinarily, a part of its trade or business. Mr. Sanyal who appears on behalf of the appellant-company contended that the view taken by the learned Commissioner was utterly wrong and that the foundation on which he had made it rest was wholly unsound.
6. I am of opinion that the contenlion of Mr. Sanyal must prevail. The learned Commissioner has based his finding almost e tirey on the plea taken by the appellant-company in its written statement. He has said that since the appellant-company had prayed for an order of indemnity against Hazara Singh, it had admitted that the hoisting of the chimney was a part of its ordinary trade, or business and that, having made that admission, it could not consistently plead to the contrary and say that the hoisting of the chimney could not be and was not a part of its ordinary trade or business. 'The prayer for indemnily made by the opposite party No. 1 (that is to say, the appellant-company)'', observed the learned Commissioner, 'presupposes that this work of fitting chimney of the factory of the opposite party No. 1 (that is to say, the appellant-company) is their ordinary trade, and business which was entrusted to their independent contractor and for which the opposite party No. 1 (that is to say, the appellant-company) prayed for indemnity against the said independent contractor' Proceeding to express what appears to be his own finding on the facts, the learned Commissioner observes as follows:
'The fitting of chimney of the factory of the opposite party No. 1 is certainly within the scope of the trade and business of the opposite party No. I and is undoubtedly part of the trade and business of the opposite party No. 1 within the meaning of Section 12(2) of the Workmen's Compensation Act.'
I can only express my surprise that such a view could be taken. I am free to confess that the drafting of the several clauses of the written statement was not as perfect as it might have been, but however abrupt the appellant-company's prayer for being allowed to implead Hazara Singh was, the fact that it made that prayer and asked for an order of indemnity, in case it was made liable for compensation can in no event justify a finding that the appellant was admitting to have been the principal, as contemplated by Section 12(2) of the Act. The prayer for an order of indemnity against Hazara Singh and for leave to make him a party was clearly a prayer in the alternative, the necessity for its consideration being contingent upon the appellant being found liable for compensation, it appears to roe to be altogether erroneous to think that the appellant-company stood concluded by its written statement and could not be heard to say that the hoisting of the chimney was not a part of its ordinary trade or business and therefore, it could not be made liable as the principal for compensation under Section 12(2).
7. Mr. Mukherjee, who appears on behalf of respondent No. 1 Aurora Singh Mojbi, did nor wish to support the learned Commissioner by reference to the pleading of the appellant. What he contended was that, on the true view of the relationship between the appellant-company and Hazara Singh, the contract relating to the hoisting of the chimney was clearly a labour contract and the deceased could rightly be taken to have been an employee directly under the appellant-company. I may point out at once that that was not the view which the learned Commissioner took. He made the appellant-company liable only vicariously by holding that it had entered into a contract with Hazara Singh for the execution of a piece of work which was a part of its ordinary trade or business. Nevertheless, if Mr. Mukherjee could succeed in inducing us to hold that the deceased was employed directly under the appellant company, the order made by the learned Commissioner could be upheld, although to maintain the order for indemnity would in that event be inconsistent.
8. I think, however, that Mr. Mukherjee's contention is not correct. He relied on as many as three decisions which I may dispose of first.
9. The point which Mr. Mukherjee sought to make was that the appellant's contract with Hazara Singh was not a contract of service, but a contract for service and, therefore, the labourers whom Hazara Singh had brought in for the execution of the contract were really labourers under the appellant company itself. He also contended that Inasmuch as the appellant could not possibly carry on its business without a chimnev to serve its factory, repairs of the chimney would be a part of its ordinary trade or business. The first decision he invoked in aid of his contentions is a dicision of the Bombay High Court in the case of Bai Kokilabai v Keshavlal Mangaldas and Co., AIR 1942 Bom 18 (FB) (A).
10. In my view, the case relied upon by Mr. Mukherjee is of no assistance whatever to him.That was a case where, under an arrangement between a mill company and their sole selling agents, the latter were to take delivery of the manufactured products from the mill company's godowns at their own expense for the purpose of selling them from their own shop. That arrangement necessarily involved that the selling agents were to transport the goods from the mill company's godowns to their own shop and it was for the purpose of transporting the goods that the selling agents employed a firm which carried on the business of transporting piece-goods for hire. The firm, in its turn, hired a lorry from a third party and the cleaner of that lorry who was engaged by a member , of the firm to help in removing some bales of goods from the mill company's godowns and stacking them in the lorry, suffered an accident in the course of that work and was killed. The question being whether the selling agents could be held responsible for compensation under Section 12(2) of the Act, it was held that they were clearly responsible, because the contract into which they had entered with the firm was a contract for the transport of goods from the mill company's godowns to their own shop and such transport was clearly not only an ordinary but an essential part of their business. I can see no resemblance of the facts of that case to the facts of the case before us. The business of the selling agents was to sell the gocds manufactured by the mill and under their contract with the mill, it was their duty to have the goods brought over from the mill premises to their own. Unless they procured the goods, they could not carry on the business of selling them and they could not procure the goods unless they had them transported from the mill. In those circumstances, it seems to me to be beyond argument, as the learned Judges of the Bombay High Court held, that the contract of the selling agents with the firm which arranged for the transport of the goods was a contract for the execution of a piece of work which was a part of the ordinary trade or business of the selling agents. I can see no analogy whatsoever between the worte of transporting the goods from the mill premises to the shop of the selling agents, as in the Bombay case and the work of hoisting a portion of the chimney in the case before us.
11. Mr. Mukherjee next referred to the decision of this court in the rase of Messrs. S. Kaloo & Soils v. Ofatannessa Bibi, 42 Cal W.N. 803 (B). The facts in that case were that workman, while engaged in the erection of a Hogla shed on the roof of a three-storyed house, fell from the scaffolding down into the street as the bamboo, on which ha was standing, gave way. Death was instantaneous. The shed was being erected for a firm called Messrs. S. Kaloo & Sons & that firm had contracted with one Insan Sardar to do the work and it was Insan Sardar who had brought in certain labourers, Including the deceased. A claim having been made against Messrs. S. Kaloo and Sons, they pleaded that they had entered into a contract with Insan Sardar for the execution of the work by him and that consequently they were entitled to an order of indemnity against Insan Sardar. That contention was repelled and the court held that the deceased had been employed directly under Messrs. S. Kaloo and sons and that if there was a contract with Insan Sardar at all. it was not a contract to do the whole or any part the work, but merely a contract for the supply of labour at a certain rate of wages per heed. The view which the court took was based upon the evidence of a witness named Habibulla; apparently a member of Messrs. S. Kaloo and Sons, who deposed as follows:
'We just call the Sirdar and tell him to bring so many men for so much work. We pay Insan at the rate of one rupee one anna per head'. If a person calls in a supplier of labour and asks him to bring in a specified number of men for a particular piece of work and he pays the men through the supplier at a certain rate, there is clearly no contract with the supplier for the execution of the work. The contract v. as clearly a labour contract, as the court held. In the present case, however, the contract evidenced by the Letter of the 18-3-1953 is of a quite dillegent character 'You are hereby engaged'', says the appellant-company,
'to dismantle the upper portion of our chimney and hoist the new portion. The d smantling and fixing new portion are to be done by you. All the hoisting implements are to be supplied by you. The total labour charges for this job has been settled at Rs. 250/- (Rupees two hundred, and fifty) only'.
Whereas the contract in the case relied on by Mr. Mukherjee was a contract to bring in 'so many men for so much work', the contract in the present case for the dismantling of a portion of the chimney and the hoisting of a new portion I cannot see in view of that clear difference in the facts, how the case cited by Mr. Mukherjee can be of any assistance to him.
12. The third decision relied upon by the learned Advocate is the decision of the House of Lords in Bobbay v. Grobsbie & Co. Ltd. 1916-85 LJK B 239 (C). and it is of even less help. The substance of the decision is no more than that the County Court Judge having held that the contract in the case was a labour contract and the Court of Appeal having reversed him, the House of Lords said that the evidence admitted of either view as a conclusion of fact from the incidents and since the county Court Judge had taken one of these views there was evidence on which he could rightly do so and therefore, Ms decision was not liable to be reversed. It is to be noticed that their Lordships indicated no view of their own but merely applied the well known rule, particularly applied in workmen's compensation cases, that if the primary tribunal took a view which, on the facts, was a possible view and which it had consequently jurisdiction to take a Court of Appeal ought not to reverse it even though, sitting as a court of first instance, it might have taken a different view. But it is not the nature of the decision of the House of Lords alone which takes away its value for the purposes of Mr. Mukherjee. It was found as a fact that among the riverside labourers of the place concerned, there was a custom that one of their number should be employed to collect a gang to do a job at a fixed price which the members of the gang would divide among themselves in accordance with an understood arrangement. It was thus a case of a number of people acting through one of their representatives. It is with one such representative a man named Watts, that another man named Crosbie entered into a contract for the supply of a gang of men for a certain piece of work, that contract was interpreted as really not a Contract with Watts that he should do the work or get it done by providing gang of labourers but a direct contract between Crosbie and each one of the workmen who constituted the gang. There is no trace of any suggestion in the present case that a gang of workers, including the deceased used to enter into contracts with third parties through Hazara Singh and that the contract was, therefore, really with each member of the gang. The last of the decisions relied upon by Mr. Mukherjee must also be held to fail him.
13. We were invited by Mr. Mukherjee to consider the evidence of one of the directors of the appellant company who said that the company had supplied all the materials. I cannot see that this condition makes any difference. As I observed in the course of the argument, if a person wishing to have some pieces of furniture made, enters into a contract with a cabinet-maker for the execution of the work but makes it a condition that he will supply his own timber, I cannot see that the contact Becomes on that account any the less a contract of service as distinguished from a contract for service, if it is otherwise so. Mr. Mukherjee also overlooked the very next sentence in the deposition of the director. There he said that Hazara Singh had taken the contract 'to fix the chimney with his labour', thereby saying that the contract was with Hazara Singh for the execution of the work to be paid for by the sum agreed to and that the manner and means and the agency by and with which the work was to be executed was for Hazara Singh alone. Our attention was also drawn by Mr. Mukherjee to the evidence of a clerk of the appellant-company who said that the company had looked after the work of setting up the chimney. Again I fail to see that if the appellant-company looked after the setting up of the chimney in order to ensure itself that the work was being properly done, the nature of the contract w;as thereby alterned in any way. A person calling in a contractor to do a piece of work will naturally look after the work in the sense of attending to and viewing it so that the work may be properly done. The sentence relied upon by Mr. Mukherjee does not suggest in the remotest way that the appellant-company was looking after the setting up of the chimney in the sense of getting the work done, and that, therefore, those who were doing the work were persons employed directly under the company itself.
14. It appears to me that neither the decisions invoked by Mr. Mukherjee, nor the facts relied upon by him help him in substantiating his contention.
15. I have already referred to the nature of the contract. I am free to confess that it may be said to satisfy the first part of Section 12(1) which speaks of a contract entered into 'in the course of or for the purposes of his trade or business''. It can. I think be legitimately said if a company, carrying on the business of manufacturing goods in a factory, enters into a contract for the purpose of some repairs to its machinery or the factory building, such contract is entered into in the course of and for the purpose of the company's trade or business. The requirement of the second part of the section, however, is altogether different. What is required there is that the work to the execution of which the contract relates, must be one 'which is ordinarily part of the trade or business of the principal'. I find it wholly impossible to hold that where a company carries on the business of manufacturing goods and requires a factory for performing the manufacturing process and the factory requires a chimney, the work of occasional repairs to the chimney is a part of the ordinary trade or business of the company. The business of the company in such a case is to manufacture the goods which it produces. The manufacture may be done inside a factory and the factory may require a chimney which would occasionally need repairs, but repairing the chimney can in no, view be a part of the company's trade Or business, whether ordinarily or extraordinarily. In my view, the learned Commissioner was altogether wrong in holding against the appellant-company on the basisof a supposed admission in its written statement and equally wrong in his construction of the contract as also in the view taken by him of the nature of the work, for which the contract was entered into, in relation to the appellant-company's business. The order made by him cannot possibly be upheld.
16. For the reasons stated above, this appeal is allowed. The judgment and order of the Commissioner for Workmen's Compensation are set aside and the application of respondent No. 1 as against the appellant-company is dismissed. This order will not prejudice any right which respondent No. 1 may have against Hazara Singh or any remedy which may still be open to him to enforce those rights.
17. There will be no order for costs.
18. The appellant-company will be entitled to withdraw from the Commissioner for Workmen's Compensation such part of the compensation as may still be lying with him.
19. I agree.