IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (WCA) No.: 70/2004 Decided on.: 10.7.2008 Jamna Devi and others. …Appellants. Versus Sunil Kumar and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioner : Mr. Vinod Gupta, Advocate. For the respondents : Pt. Om Parkash, Advocate. Rajiv Sharma, J. By way of this FAO (WCA), a challenge has been laid to the order dated 3.2.2004 passed by the Commissioner under the Workmen’s Compensation Act, 1923. The brief facts necessary for the adjudication of this First Appeal against the Order are that the respondents had filed a claim petition under section 22 of the Workmen’s Compensation Act, 1923 before the Commissioner contending therein that late Sh. Gian Chand was employed by the appellant during the marriage of his son. The respondents have contended that due to heavy rush of work and also on account of negligence by not providing treatment to Gian Chand, he died during the 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 course of his employment. The appellant has filed reply to the claim petition. The gist of the reply of the appellant was that he never engaged Gian Chand as labourer during the marriage of his son. The learned Commissioner has framed the following issues: 1. Whether the petitioners are entitled for compensation as alleged? OPP. 2. Whether the petitioners are not the LRs of deceased late sh. Gian Chand? OPP. 3. Whether this Court has jurisdiction to try this petition? OPR. 4. Relief. The learned Commissioner awarded compensation of Rs. 50,000/- under the Workmen’s Compensation Act, 1923. The appellant has challenged the award dated 3.2.2004. Mr. Vinod Gupta, Advocate had strenuously argued that deceased Gian Chand was not a regular workman since his category does not find mention in the list of person in Schedule-II of section 2 (1) (n) of the Workmen’s Compensation Act, 1923. Pt. Om Prakash, Advocate had submitted that the list of persons as per Schedule-II is illustrative and not exhaustive to prove that the person engaged was a workman. I have heard the learned counsel for the parties and have perused the pleadings carefully. Schedule-II, gives a list of persons, who are deemed to be workman within the definition of section 2 (1) (n) of the Workmen’s Compensation Act, 1923. The list, though comprehensive, is certainly illustrative of the nature of the work which makes an employee the workman within the meaning of the Workmen’s Compensation Act, 1923. The fact that the employment is of casual nature by itself is not sufficient unless the employment is also for the purpose other than the employer’s 3 trade or business. These conditions must co-exist to take out the workman from the ambit of the definition of workman. The matter can be viewed from another angle. The onus of proving that the employment of Sh. Gian Chand was of casual nature was on the appellant. In the present case the appellant has failed to discharge the onus and the necessary corollary of the same would be that the workman is covered under the Workmen’s Compensation Act, 1923. Moreover, he was employed for the purpose of work by the employer. It is settled law by now that onus is always on the employer to prove the conditions necessary for excluding a person from the ambit of ‘workman’. A Division bench of Karnataka High Court in Assistant Executive Engineer, Bhadravathi versus H.S. Sunanda and another, 1994 (2) LLJ 1043 has held as under: “In this case even assuming that the employment of the deceased was of a casual nature, it cannot be disputed that he was an employee for the purpose of the work of the appellant and therefore we are of the view that the submission of the learned government Advocate cannot be accepted.” The learned Single Judge of the Punjab and Haryana High Court has held in Swaran Kaur and another versus Sardari Lal Kapoor and others, 1994 ACJ 1088 that onus of proving that the employment of the workman was of a casual nature is on the employer and where the employer fails to discharge that onus, it would follow that the workman was covered under the Act. The learned Single Judge has held as under: “Coming to the last contention, the word ‘casual’ occurring in the definition has not been defined under the Act. It has been observed in more than one decision that the word is not capable of a precise definition. The sum and substance of various decisions dealing with this aspect of the matter whether employment is of a 4 casual nature or otherwise, depends on the facts and circumstances of each case. The onus of proving that the employment was of a casual nature is on the employer and where the employer fails to discharge that onus, it would follow that the workman was covered under the Act. In Raj Rani versus Narsign Dass Mela Ram, 1958-65 ACJ 439 (Punjab), the facts were that a person was employed on wages for painting the premises of a shop. While painting the premises, he touched a live electric wire and died on account of electric shock. It was held that the deceased was a workman within the meaning of the Act. Shamsher Bahadur, J. (as he then was) observed that in construing what is an employment of a casual nature, it is the nature of the service which has to be looked at and not is duration. It was further observed that with the progress of times the concept and the circumstances in which a workman is entitled to compensation has considerably widened and a liberal construction has to be put on this phrase. The learned Judge made reference to several other authorities of various High Courts, which included cases where a person employed for executing repairs to the building fell from the scaffolding while executing repairs and the heirs were held entitled to compensation under the Act. In a more recent case in Rakha Ram versus Harcharan Dass, 1983 CLJ (C&Cr) 175, the aforesaid decision in Raj Rani’s case (supra) was followed and it was held that the employer having failed to establish that the employment of the workman was of a casual nature, the person concerned was covered by the provision of the Act. The law laid down in Raj Rani as well as Rakha Ram clearly applies to the facts and circumstances of the present case. It is, therefore, held that Budh Singh was a workman within the meaning of the Act and petitioners- appellants are entitled to succeed.” 5 A Division Bench of Madhya Pradesh high Court: in Smt. Mangala Ben versus Dilip Motwani and another, 1998 (79) FLR 806 has held that the onus is upon the employer to prove the conditions necessary for excluding a person from the category of workman. Their Lordships have held as under: “In our opinion, the finding of the Commissioner on the basis of above that it is not proved that the deceased was in the employment of the respondent owner of the car is perverse. The learned Commissioner further held that the claimant did not produce any evidence to prove that the deceased was employed for the purposes of respondent Dilip Motwani’s trade or business. He observed that in absence of such evidence, the deceased cannot be held to be a workman. In our opinion, the learned Commissioner committed grave error of law in holding that the burden lay on the claimant to prove that the deceased was employed for the purpose of respondent’s trade or business. It is settled that the onus is upon the employer to prove the conditions necessary for excluding a person from the category of workman. From the definition of ‘workman’ given in section 2 (1) (n) of the Act, it is clear that for not treating a person as workman, two conditions are required to be proved, namely, that his employment is of casual nature and he is not employed for the purpose of employer’s trade or business and the onus on the employer to prove these conditions. The learned tribunal wrongly held that the onus lay on the claimant to prove that Hansmukh Manilal was employed for the purpose of his employer Motwani’s trade or burinsess, it resulted in failure of justice. The finding of the learned Commissioner is vitiated by error of law. Under these circumstances, it is clear that substantial question of law is involved. From the evidence produced by the claimant it has been proved that Hansmukh Manilal was in the employment of car owner respondent Motwani 6 and he died during the course of his employment. Therefore, the claimant is entitled for compensation.” Now, the Court has to advert to the statements of the parties. PW-1 Sh. Rajesh Kumar has deposed before the Commissioner that his father was engaged by the employer during his son’s marriage. He has further deposed that his father died due to stress and strain while working at the residence of the appellant. He has produced on record the copy of the post-mortem report. In his cross-examination, he has deposed that his father used to work as a labourer. PW-2, Ashok Kumar has deposed that Sh. Gian Chand was a labourer. PW-3 Sh. Rajgir Singh has also deposed that Sh. Gian Chand had gone to work in the marriage of appellant’s son. RW-1 Sh. Anil Kumar has denied the master-servant relationship. He has denied that Sh. Gian Chand died due to heart attack. According to him, he died of natural death. RW-2 Sh. Baj Ram has denied that Sh. Gian Chand was engaged as a labourer to work in the marriage of appellant’s son. It is evident from the oral evidence of the parties that Sh. Gian Chand was engaged by the appellant to work as a labourer. He died during the course of his employment due to heart attack. There exists casual connection between the death and employment of Shri Gian Chand and the employer is liable to pay the compensation. It has come in the statement of PW-1 that his father was made to work for longer duration. The stress and strain of working for longer hours had definitely attributed towards the death of the workman which arose out of and during the course of employment. Accordingly, it is held that Sh. Gian Chand was the workman and he died during the course of his employment with the appellant. His death is attributed to stress and strain due to longer working hours. 7 Consequently, there is no merit in the present FAO (WCA) and the same is dismissed. There shall be no order as to costs. July 10, 2008 (Rajiv Sharma ), J. *awasthi*