1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 455 OF 2009 The Estate Manager, Maharashtra State Agricultural Corp. Ltd. Sakharwadi (A), Mala, Tq. Kopargaon, Dist. Ahmednagar. ... APPELLANT (Orig. Opponent) VERSUS 1) Smt. Vidya Shrikant Kulkarni and others. ... RESPONDENTS (orig. Applicants) ***** Mr. R.N.Dhorde, Advocate for Appellant; Mr.Pradeep Shahane, Adv. For Respondents. ­­­­­ CORAM : K.U.CHANDIWAL, J. DATE : 12th June, 2009. PER COURT : 1) By consent of the parties, the matter is taken for final hearing at admission stage. As indicated in the order dated 22.4.2009, and the parties agreed, record need not be called. Copies of evidence are tendered with the appeal memo. 2) The Appellant feels aggrieved by the Judgment and Order dated 23rd December, 2008 passed by the Commissioner for Workmen’s Compensation (Labour Court), Ahmednagar under the Workmen’s Compensation Act, 1923 in Application 2 No.WC 53/07, granting compensation in favour of the claimants to the tune of Rs. 3,06,180/­ with interest, it is under challenge under Section 30 of the said Act. 3) The deceased was in employment with the appellant at Sakarvadi, its agriculture site, as a clerk, having been in service from 24.9.1985. He was working in water supply and plantation department at site. On 16.7.2007, deceased Shrikant suffered pains while he was at work in the afternoon session. Consequently, he was treated by Dr. Darandale, regular Medical Officer of the appellant, however, the employee Shrikant succumbed due to arrest of heart. 4) The Counsel for the appellant would urge that the substantial question of law in the matter is : (i) Whether the impugned judgment and Order is bad in law, illegal as it is not in tune with the settled position, same is liable to be quashed and set aside. (ii) Whether the Order under challenge is bad as deceased Shrikant did not fall within the definition and category of `Workman’ under the Act. 5) The Counsel for the appellant extensively dealt with the evidence to impress that deceased Shrikant being Clerk was not required to attend manual activities. The learned Judge erred in construing the definition 3 of the `Workman’ and the findings are perverse as there was no strenuous work to the deceased employee. 6) In order to substantiate his contention, Mr. Dhorde took me to the Judgment in the matter of Shakuntala Chandrakant Shresti Vs. Prabhakar Maruti Garvali and Anr. ­ AIR 2007 SC 248. In paragraphs 29 and 30, Their Lordships have observed thus : “29. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. 30. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor.” 4 7) There is no controversy that the deceased Shrikant, who was attending his duties and regular pursuits had acute chest pains and consequently by seeking permission of his superior, left for medical advice and suffered heart stroke. The nature and condition of the work is also to be seen before castigating the Award. Evidence of Ashok Ramchandra Kolhe, the Estate Manager, illustrate that the deceased Shrikant was a Class­IV employee at Sakharvadi (A) Malla (field) as Estate Clerk, looking after irrigation and plantation. He was also required to visit Kopargaon on occasions. In the cross­ examination, he accepts that on 16.7.2007, Shrikant, while he was on duty, expired as he had chest and abdominal pains. The Officer also accepts that there was the unit of 15 employees in the department. However, strength of clerk was only 9 and consequently the deceased had the strain and stress of work. The contention that there was no casual connection to heart attack and the work is incorrect as apparently the deceased, while at duty, suffered the heart attack. The nature of work was that he was required to coordinate plantation. Though I find that Dr. Darandale, who has examined the deceased, is not examined. However, evidence of Mr. Kolhe supports that Dr. Darandale phoned him at 3.30 p.m. that deceased Shrikant while was under examination, had massive heart stroke and 5 succumbed. Consequently, Mr. Kolhe sent official vehicle to his residence to ferry his family members to the hospital of Dr. Darandale. 8) The Counsel for the appellant also placed reliance to the Judgment in the matter of Kamlabai Chintaman Vs. Divisional Superintendent, Central Railway, Nagpur – 1971 BCI (O) 36. It was a case of railway engine driver, who expired during the employment. But, the learned Commissioner under Workmen’s Compensation Act, did not approve that it was the death during employment. On analyzing the evidence, even in appeal, this Court found that on the material date, the deceased had sufficient rest during the service activities as spelt out in paragraph 5 of the judgment. The deceased collapsed while he was talking to the Guard as to why signal was given to stop the railway engine The Court recorded that it was required for the appellant to show that the deceased died not only because of heart disease, from which he was suffering, but also because of some contributory cause on account of his employment or his duty, which he was performing at Chanda or between Majri and Chanda. This Court recorded ­ “deceased merely walked to the Guard merely to find out why he had shown the red flag to stop the engine. While talking to him, he collapsed.” All these circumstances, therefore, clearly show that there was no casual connection between the death of 6 Chintaman and his employment. These facts are not applicable to the scenario of events in the present case. 9) The contention that the deceased was not a `workman’ under the Workmen’s Compensation Act in the light of Section 2(1)(n) is to be assessed. Section 2(1)(n) defines `Workman’ and sub­clause (ii) says employed in any such capacity as is specified in Schedule II. Schedule II starts with – the following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is ­ (i) employed, otherwise than in a clerical capacity or on a railway, in connection with the operation, repair or maintenance of lift or a vehicle propelled by stern or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle; or (ii) employed, otherwise than in a clerical capacity, in any premises wherein or within the precincts whereof a manufacturing process as defined in clause (k) of section 2 of the Factories Act, 1948 (63 of 1948), is being carried on, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, whether or not employment in any such work is within such premises or precincts and steam, water or other mechanical power or electrical power is used; 7 or (iii) employed for the purpose of making, altering, repairing ornamenting, finishing or otherwise adapting for use, transport or sale any article or part of an article in any premises wherein or within the precincts whereof twenty or more persons are so employed. However, the definition at point (xxix) is employed in horticultural operations, forestry, bee keeping or farming by tractors or other contrivances driven by steam or other mechanical power or by electricity. Thus, Schedule II sub­clause (xxix) does not restrict to avoid to a clerk, but it applies to a person employed in horticultural operations. Evidence of Mr. Kolhe and of also the widow of the deceased in unequivocal terms disclose that deceased was working in plantation and irrigation activities of the Corporation, such activities were at the field at Sakharwadi. 10) To revert back to clause (xxix) in Schedule II of the Act, it is more than clear that the legislature did not intend to incorporate a Clerk in said capacity otherwise there could have been specific provision to the same effect. Such arrangement has been done in the case of employment in railway or in any premises where manufacturing process is carried 8 out. 11) The Counsel for the respondents/original claimants has placed reliance to the following judgments ­ 2007 II CLR 360; 1990 (60) FLR 858; 2005 (1) CLR 595; 2005 (1) CLR 947; 1994 (1) LLJ 433; 1956 (1) LLJ 740; 2007 (6) Mah.LJ 108; 2008 (2) Mah.LJ 741; 1989 (58) FLR 214; 2005 II CLR 1010; and 2004 III CLR 404. It has been observed in these judgments that evidence on record, having indicated the death of the employee of heart attack, without there being any demur, it has to be presumed that his death is established as casual connection between the nature of employment and the death. The employment was treated to be attributable cause accelerating the death. 12) The widow of the deceased has stated that the deceased though was working as a Clerk, had strenuous activities to perform and due to such stress and strain, he had the sufferance. The evidence of legal heir to this effect is not shattered in the cross­examination by the appellant/corporation. I repeat, the death of deceased Shrikant was during the course of employment and he falls in the category of a `workman’, the learned Judge did not commit any mistake in granting the compensation under the Workmen’s Compensation Act. Appeal sans merit, it is dismissed. In view of dismissal of the appeal, 9 CA No.2907/2009 does not survive, it is also dismissed. ( K.U.CHANDIWAL) JUDGE bdv/office/fa455.09