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CASE NO.: Appeal (civil)  2943 of 2008

PETITIONER: Om Parkash Batish

RESPONDENT: Ranjit @ Ranbir Kaur and others

DATE OF JUDGMENT: 24/04/2008

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. 2943 OF 2008 (Arising out of SLP (C) No. 5471 of 2006)

S.B. SINHA, J.

1.      Leave granted.

2.      Whether a casual employee who was appointed for a limited period to  carry out repairing job in a building would be a’workman’ within the  meaning of the provisions of Section 2(n) of the Workmen Compensation  Act, 1923 (the Act) is the core question involved herein. 3.      Appellant is the owner of a residential building.  It is situated by the  side of an industrial establishment known as M/s. Chandrika Textiles.   

4.       On or about 30th June, 1996,  the predecessor-in-interest of the  respondents, Ram Lal, suffered an accident coming in contact with a high  tension electrical wire passing over the roof of the said M/s. Chandrika  Textiles.  He suffered injuries as a result thereof.  He was shifted to the Post  Graduate Institute of Medical Research, Chandigarh, where his statement  was recorded.  He expired on 6th July, 1996.   

5.      On the premise that the said Ram Lal was a ’workman’ under the  appellant, a proceeding was initiated by the Workmen Compensation  Commissioner under the Act.  In the said proceeding the parties adduced  their respective evidences.  One of the contentions raised by the appellant  was that the accident took place when the said Ram Lal was on the roof of  the said textile mills and that he had not been working under him.  It was,  however, accepted that he had been working for sometime with the appellant  for carrying out repair works.  It was furthermore urged that a casual  employee would not be a ’workman’ within the meaning of the provisions of  the said Act.  6.      The Workmen Compensation Commissioner framed several issues;  principal amongst them were :-

"1.     Whether the deceased Ram Lal was employed as  workman by the opposite party in the relevant  date?   OPA

4.      Whether the application is not maintainable?  OPR        

The first issue was answered in the negative. The Workmen  Compensation Commissioner on issue No.4 held :-

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"       In the nutshell nothing can be derived from the  statement of PW-3 Kamal Chand except that he knew the  date of accident i.e. 30-6-1996 at the time which  assumably seems to have been after thought only.   Therefore both the witnesses of the applicants could not  prove the alleged place of accident which resulted into  the death of Ram Lal whereas there is sufficient evidence  having been admitted by Achharpal PW about the site of  the accident further having corroboration in the statement  of Hamir Chand and Anil Kumar RWs who are  independent witnesses.  

         Thus the entire evidence of respondents is logical  which goes to show that Ram Lal got shock injuries on  the roof of the shed of a closed factory owned by late  Partap Singh at village Khera on 30-6-1996 as per site  plan Ex.RW-3/A.

       Secondly the contention of respondents that  deceased Ram Lal was not covered under the definition  of a workman is not required to be discussed here as the  relationship of employee and worker is not there in this  particular case.

       In view of the above discussion I hereby hold that  the application in not maintainable as Ram Lal deceased  was not workman on the relevant date i.e. 30-6-1996 with  the respondents and he got inflicted by an electric shock  at another place than the alleged one.

       Therefore issue No.4 is decided in favour of the  respondents and against the applicants."

7.      Respondents herein preferred an appeal thereagainst before the High  Court in terms of Section 30 of the said Act.  The High Court framed the  following substantial questions of law.            "1.     Whether the Commissioner has totally failed to  appreciate the evidence properly and legally and as such  has caused injustice to the appellants?

2.      Whether the Commissioner has wrongly mixed the  question of criminal proceedings as well as the  proceedings under the Workmen Compensation Act and  has given wrong weightage to the police report?

3.      Whether the learned Commissioner has wrongly  and illegally decided issue No.4 regarding  maintainability of the application?

8.      The High Court proceeded on the basis that although an appeal under  Section 30 of the Act lies only on a substantial questions of law, however,  total misreading and misappreciation of evidence would also give rise to the  one.  It meticulously went into the deposition of the witnesses examined on  behalf of both the parties.  It, for the reasons stated in the impugned  judgment, did not accept the statement made by the deceased which was  treated to be the dying declaration on his part.

9.      While holding that there was nothing to disbelieve the statement of  the widow with regard to the nature of the injuries suffered by Ram Lal in  the accident, the deposition of the witnesses examined on behalf of the  appellant herein was disbelieved holding :-

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"       Keeping in view the entire evidence and the  aforesaid discussion I am of the considered view that  deceased Ram Lal was employed with O.P. Batish and  the accident occurred in the premises of O.P. Batish."  

        A sum of Rs.1,66,369.50 ps. was awarded in favour of the  respondents.  Appellant was also held liable to pay penalty of 50% of the  said amount i.e. Rs.83,184.75 ps.   

10.     Mr. Jawahar Lal Gupta, learned senior counsel appearing on behalf of  the appellant would submit that there being no relationship of employer \026  employee by and between the appellant and the deceased Ram Lal, the  impugned judgment is wholly unsustainable.  

11.     Mr. Yash Pal Dingra, learned counsel appearing on behalf of the  respondents, on the other hand, would contend that the definition of  ’workman’ as contained in Section 2(n) of the Act must be read with the  Schedule II appended thereto.  It was submitted that only because Ram Lal  was a daily wager, the same would not mean that he was also a casual  workman.   

12.     The Workmen Compensation Commissioner arrived at a finding of  fact that the accident did not take place at the premises of the appellant.  It  was on the said premise that the Workmen Compensation Commissioner did  not deem it fit to go into the question as to whether late Ram Lal was a  workman or not.  

13.     Section 30 of the Act provides that an appeal shall lie to the High  Court on a substantial question of law.  A substantial question of law, in our  opinion, will carry the same meaning as is commonly understood.   Distinction sought to be made by Mr. Dhingra that a substantial question of  law for the purpose of a first appeal and one for a second appeal would be  different, cannot be accepted.     

14.     The right to file an appeal is a statutory right.  The Parliament may not  provide such a right at all.  The right to file an appeal can be hedged with  conditions. A limited right can also be conferred.   

15.     A right of appeal under the Act is provided, both to the management  as also the workman.  It is difficult to hold that whereas for the workman the  High Court shall exercise a wider jurisdiction but in the event the employer  is the appellant, its jurisdiction would be limited.  The High Court  unfortunately proceeded on the basis that appreciation of evidence also  would give rise to a substantial question of law.

16.     In a proceeding initiated under the Act the provisions of the Code of  Civil Procedure or of the Evidence Act are not applicable.  The  Commissioner could lay down his own procedures.  He could, for the  purpose of arriving at the truth, rely upon such documents which were  produced before it.  

17.     The incident was reported to the police authorities.  The Officer  Incharge of the concerned police station recorded the statement of deceased  Ram Lal.  The said statement was marked as Ex.RW-5/A, the translated  version whereof reads as under :-

"Stated that I am a resident of aforesaid address and have  passed matric.  I was working in Khera Chak in the house  of O.P. (Om Parkash) as beldar (daily wager) for about 8  days.  On 30.6.1996 I had gone to Mama’s (maternal  Uncle’s) house at Khera.  At about 8.30 in the morning I  climbed on to the roof of the factory which is adjacent to  the house of my maternal uncle just to watch the weather

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and while away my time, I did not pay attention to the  high tension wire going above the roof.  Suddenly by  mistake my hand touched the electric wire and thereafter  I do not know what happened.  This accident occurred  due to my being electrocuted suddenly.  I do not have  any suspicion on any person.  I do not want to start any  police investigation."                                  

18.     The entire approach of the High Court, with respect, as regards the  correctness or otherwise of the said statement is wrong.  The statement was  recorded by the police authorities.  If that be so, it could be looked into by  the Workmen Compensation Commissioner.  The High Court opined that the  Commissioner had mixed up the proceeding before it with the criminal  proceedings.  He did not.  

19.     If the statement of the deceased was admissible in evidence, evidently  no case has been made out for initiating any proceeding under the Act  against the appellant. It was a case of pure and simple accident and that too  at a place over which the appellant had no control.  Entering into the realm  of appreciation of evidence adduced by the parties per se is out of bound of  an appellate court which is concerned with determination of a substantial  question of law.  It is one thing to say that the findings of the Workmen  Compensation Commissioner were perverse and in arriving at its findings it  failed to take into consideration relevant facts or took into consideration  irrelevant factors which were not germane for the purpose of determining the  issue, but whether a witness is trustworthy or not, has nothing to do with  determining into the question of perversity.   

20.     We may consider the case from another angle.  The averments  contained in the claim application are as under :-

"       That the deceased Ram Lal S/o. Sh. Ram Rattan  R/o. Village Palasra, Tehsil Nalagarh, Distt. Solan, H.P.  was employed as workman for construction work of  residential building of opposite party in the month of  June, 1996.  The deceased Ram Lal had worked with the  opposite party for 27 days continuously as workman for  the repair work of shed at village Khera, Tehsil Nalagarh,  Distt. Solan, H.P."  21.     The definition of ’workman’ as provided in Section 2(n) of the Act, as  it stood on the date of the incident, reads as under :-                  "(n) "workman" means any person other than a person  whose employment is of a casual nature and who is  employed otherwise than for the purpose of employer’s  trade or business  who is--         \005.                           \005..                  \005..  (ii)   employed in any such capacity as is specified in  Schedule II,  whether the contract of employment was made before or  after the passing of this Act and whether such contract is  expressed or implied, oral or in writing; but does not  include any person working in the capacity of a member  of the Armed Forces of the Union and any reference to a  workman who has been injured shall, where the workman  is dead, include a reference to his dependants or any of  them.  

       The ingredients of the said provisions are \026

i)      the workman must not be employed as a casual workman ; ii)     his employment must be in connection with the employer’s  trade and business.

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22.     We must, however, place on record that the words beginning from  "other than a person whose employment is of a casual nature and who is  employed otherwise than for the purpose of the employer’s trade or  business" have been omitted by Act 46 of 2000.  We are, however,  considering the statutory provision as it then stood.    

23.     The workman in the present case was employed for a limited period  for carrying out repair works in a residential house.  The same does not,  thus, answer the description of a workman as contained in the provisions of  the Act.   

24.     Schedule II appended to the said Act to which reference was made by  Mr. Dhingra, in our opinion, is not applicable, as it is subject to the  provisions of Section 2(1)(n) of the Act.  If, therefore, the law as it then  stood would exclude the applicability of the Act, having regard to the  definition of the term "workman" the same cannot be held to include  deceased, only because he was working in connection with a building  activity.   

Even otherwise, working in a residential house does not satisfy the  requirements of law.

25.     We must also bear in mind that the very fact that the Act was  amended is itself a pointer to show that the Parliament intended to avoid a  mischief which was prevailing.   

       Applying the principles of mischief rule [ Heydon’s case  (1584) 3  Co. Rep. 7a], it must be held that prior to the amendment of the definition of  "workman", the category of workman to which Ram Lal belonged did not  come within the purview of the provisions of the said Act.  

26.     For the reasons abovementioned the impugned judgment cannot be  sustained, which is set aside accordingly.  The appeal is allowed with no  order as to cost.   However, the amount paid to the respondents by the  appellant, if any, shall not be recovered.