*THE HONOURABLE SRI JUSTICE P.S.NARAYANA +C.M.A.No. 496 2007 % 31st July, 2009. #The Branch Manager, Oriental Bank of Commerce, Karimnagar. ….Appellant. Vs. $ Shaik Madar and others …. Respondents !Counsel for the Appellants: Mrs. Kalpana Ekbote Counsel for the Respondents: S.A.K.Mynuddin <Gist : >Head Note: ? Cases referred: [1] 2008 ACJ 1700 2 2008 ACJ 169 3 2007 ACJ 1951 4 ALD 1 ( 2001) 171 5 2003(2) ALD 146 THE HONOURABE SRI JUSTICE P.S.NARAYANA C.M.A.No. 496 OF 2007 JUDGMENT C.M.A.M.P.No. 1291 of 2009 is filed by the vacate stay petitioners- Respondents in C.M.A.No. 496 of 2007 to vacate the interim order made by this Court in C.M.A.M.P.No. 1128 of 2007, dated 13-7-2007. At the stage of hearing of the vacate stay application, learned counsel representing the appellant in C.M.A. and also the respondents in C.M.A. made a request for the final disposal of the C.M.A. itself. Since the C.M.A. is taken up for final hearing and the same is being disposed of finally, no orders need be passed in C.M.A.M.P.No. 1291 of 2009 and accordingly, the same is hereby closed. 2. The Branch Manager Oriental Bank of Commerce, Karimnagar, Opposite Party No.1 in W.C.NO. 10 of 2004 on the file of the Commissioner of Workmen Compensation and Assistant Commissioner of Labour, Karimnagar had preferred the present C.M.A. under section 30 of the Workmen Compensation Act ( hereinafter referred to as ‘the Act’) for the purpose of convenience). 3. Learned Commissioner for Workmen and Assistant Commissioner of Labour, Karimnagar, in the light of the respective stands taken by the parties. After recording the evidence of PWs 1 to 4 and RW-1 and marking Ex. A-1 to A-10 ultimately came to the conclusion that Respondents 1 to 10 –Applicants are entitled to an amount of Rs.3,54,610/- with interest. Aggrieved by the same, the present C.M.A. had been preferred. 4. Mrs. Kalpana Ekbote representing appellant would maintain that the learned Commissioner totally erred in holding that there was an employer and employee relationship between the deceased and the appellant bank. Learned counsel also pointed out that the learned Commissioner ought to have appreciated that no acceptable documentary evidence had been placed to prove that the deceased was engaged by the appellant Bank. The counsel also would maintain that even as per the evidence of PW-3, the deceased in fact was employed by PW-3 and not by the appellant Bank. The counsel also pointed out to the definition of the Workmen and further pointed out to Schedule II of the Act and also pointed out to the substantial questions of law raised in the present C.M.A. and would maintain that in the light of the facts and circumstances, since the deceased would not answer or fall within the definition of the workmen, the very Act itself being non-applicable granting of compensation cannot be sustained. Learned counsel also placed strong reliance on certain decisions to substantiate her submissions. 5. Per contra Sri D. Kasim Saheb representing S.K.Moinuddin had taken this Court through the evidence of PWs- 3 and 4 apart from the evidence of PWs 1 and 2 and would maintain that in the light of clear evidence available on record, it cannot be said that there was no employer and employee relationship between the appellant Bank and the deceased. The learned counsel also would further maintain that in the light of the enlarged scope of definition of the workmen specially after the Amendment, to contend that the deceased would not fall within the definition of the workmen, cannot be accepted. The counsel also further pointed out to the documentary evidence available on record and also the clear findings recorded by the learned Commissioner for Workmen Compensation and Assistant Commissioner of Labour, Karimnagar and ultimately the counsel would conclude that in the light of the clear findings which had been recorded by the learned Commissioner for the Workmen Compensation and Assistant Commissioner of Labour, Karimnagar since no substantial questions of law, as such, would arise for consideration inasmuch as on facts, the findings had been recorded, the C.M.A. is liable to be dismissed. The counsel also relied on certain decisions to substantiate his submissions. 6. Heard the counsel and perused the oral and documentary evidence available on record and also findings recorded by the learned Commissioner for the Workmen Compensation and Assistant Commissioner of Labour, Karimnagar. 7. In the light of the submissions made by either counsel on record the following points arise for consideration in this Civil Miscellaneous appeal. 1. Whether the findings recorded by the learned Commissioner for the Workmen Compensation and Assistant Commissioner of Labour, Karimnagar to be confirmed or to be disturbed in the facts and circumstances of the case. 2. If so, to what relief , the parties to be entitled to? POINT No.1: 8. For the purpose of convenience the parties herein after would be referred to as shown in W.C.No. 10 of 2004 on the file of the learned Commissioner for the Workmen Compensation and Assistant Commissioner of Labour, Karimnagar. The said W.C. was filed under Section 22 of the Act claiming compensation in respect of the accident and death of Khaja Maqdoom Mohiuddin during the course of employment. The substantial questions of law raised in the present Civil Miscellanous Appeal by the appellant Bank are as here under: 1. Learned Commissioner for the Workmen Compensation and Assistant Commissioner of Labour, Karimnagar holding that there was a employer and employee relationship between the deceased and the Bank? 2. The learned Commissioner for the Workmen Compensation and Assistant Commissioner of Labour, Karimnagar erred in holding that the since the deceased was neither employee of the bank nor was he engaged by the appellant Bank for his business. 9. Respondents 1 to 10 in the C.M.A. as applicants filed W.C.No. 10 of 2004 claiming compensation as already mentioned. It is stated that the owner of the building also was impleaded as party shown as Respondent No.11 in the present Civil Miscellaneous Appeal i.e. 2nd Respondent in W.C. as aforesaid. It is stated that applicant No.1 is the father of applicant No.2 is the mother. Applicant Nos.3 to 6 are the brothers and applicant Nos. 7 to 10 are the sisters of the said deceased aforesaid aged 24 years who was employed by Bank on 24-3-2003 along with the applicant No.1 Shaik Moinuddin private electrician attending repairs of sign board of the appellant bank at their branch. It is stated that the applicant No.1 was engaged for Rs.300/- per day and the deceased was engaged for Rs. 150/- per day and on 24-2-2003 the Opposite Party No.1. i.e. present appellant had contacted M/s Chitrakar Sign Board and requested to arrange for private electrician to attend the work on bank sign boards and thus these persons were engaged for the said purpose. Several other details also had been narrated in the said application filed by the applicants/respondents 1 to 10 in the present C.M.A. W.C.No. 10 of 2004 aforesaid. 10. The owner of the building had not chosen to contest the matter. 11. However, the present appellant- Opposite Party No.1 in W.C.No. 10 of 2004 had resisted claim denying the averments and a specific stand had been taken that it is not aware of the alleged facts stated in the application and further there is a specific denial of engaging of the services of the deceased by the applicant No.1 and a clear stand had been taken that the deceased did not meet with any accident whatsoever while working for the bank and hence the opposite party No.1 is not liable to pay any compensation at all. 12. The learned Commissioner for Workmen Compensation and Assistant Commissioner of Labour, Karimnagar formulated the following points for consideration:- 1. Whether there was employee-employer relationship between the deceased and the opposite party No.1 as on the alleged date of accident. 2. Whether there was an accident out of and in the course of employment of the deceased with the opposite party No.1 resulting in his injuries and death. 3. The exact age and wage of the deceased in case compensation is due. 13. Learned Commissioner for Workmen Compensation and Assistant Commissioner of Labour, Karimnagar recorded the evidence of PWs 1 to 4 and RW-1 also and marked Ex.A-1 to A-10 and ultimately came to the conclusion that the Rs.3,184.50x50%x222.71 =Rs. 3,54,610/- is payable towards compensation in accordance with Section 4(1)(a) of the Act as Amended in 2000. The respective submissions made by the counsel also had been referred to above. 14. This Legislation is nodoubt a welfare piece of Legislation, the interpretation of the provisions of the Act to be in consonance with the spirit and object of the Act. It is also true that adopting a too liberal construction of the provisions also may put the Opposite Party into undue trouble since such parties though otherwise not liable to pay the compensation, may be made liable to pay the same. In this back drop the evidence available on record to be appreciated. Especially in the light of the substantial questions of law, which had been raised by the appellant Bank. 15. PW-1 deposed in detail about the aspect how the electrician work had been taken and PW-1 and his son had been engaged. 16. PW-2 supported the version of PW-1. PW 3 and PW-4 also had been examined. 17. Ex.A-1 is attested copy of F.I.R. Ex.A-2 attested copy of P.M.E. Report. Ex.A-3 attested copy of inquest report. Ex.A-4 copy of Proceedings of Executive Magistrate and M.R.O.Karimnagar. Ex.A-5 attested copy of Final result. Ex.A-6 certificate of death.Ex.A-7 school record sheet of 7th class. Ex.A-8 legal notice, Ex.A-9 reply of O.P.No.1 to legal notice. Ex.A-10 one photograph. 18. The evidence of RW-1 is also available on record. Apart from the evidence of PWs 1 and 2, the evidence of PW-3 is also available on record, who deposed with regard to the death of the deceased. This witness also deposed that he was attending to the electrician work of sign boards of Oriental Bank of Commerce, Karimnagar as the lights of the Board failed, he was checking the board, this witness sent him to the Bank on the request of the Bank Manager over phone. This witness also deposed about the death of the deceased and the other particulars. 19. Apart from the evidence of PW-3 there is evidence of PW-4 also who had deposed that he was working in the Branch office of M/s United Insurance Company Limited, he heard a sound and found one person fallen to the ground and sustained burn injuries on right hand and right knee that both of them were attending repair of sign board of the Oriental Bank of Commerce which was in ground floor that the incident occurred in front of main entrance of their office at first floor, that the Manager and the Staff of Oriental Bank of Commerce also came out and saw the place of accident that the Manager of the Bank, shifted the injured person to the hospital, that he came to know that the person died immediately and the police recorded the statement of PW-4. No doubt this witness was cross-examined. This is the evidence of PWs 1 to 4. 20. As against this evidence, the evidence of RW-1 was on record, who deposed that he worked as Manager from 18-12-2000 to 20-9- 2003. During the said period he never instructed any one to get the repairs of the sign boards of their bank that he never engaged any one for repairing of their sign boards and the applicants were not entitled to any compensation. This witness was cross-examined at length. 21. This witness specifically denies the suggestion also relating to the fact that he contacted Chitrakar two to three days before 25-2-2003 requiring an electrician to rectify the lights which were not glowing that the deceased Maqdoom Moinuddin and his father Shaik madar i.e. the applicant No.1 came to RW-1 and enquired whether they were required to rectify the lights of sign boards, that he engaged the deceased Maqadoom Moinuddin and his father Shaik Madar to rectify the sign boards of the bank on 25-2-2003, that as the wiring of the bank was not in condition there was short circuit resulting in electrocution of Maqadoom Moinuddin, who died on the spot that the Opposite Party No.1 is liable to pay compensation as it engaged the deceased who died while attending the work entrusted by the Bank . 22. Thus on one side the evidence of PWs 1 to 3 is available on record and Ex.A-1 to Ex.A-10 had been relied on. On the other hand the specific stand taken by the Opposite Party No.1 also by examining RW-1 denying the very engagement of the services of PW-1 and the deceased, also is available on record. 23. Learned counsel for the appellant placed strong reliance on the decision of the Apex Court in Om Prakash Batish Vs. Ranjit and others[1], wherein the Apex Court while dealing with Section 2(1) (n) as it stood prior to its Amendment in 2000 read with Schedule II, item No. (viii) in the context of workmen held that a person employed for a limited period for carrying out repair work in a residential house will not fall within the meaning of Workmen. The Apex Court in fact at paras 23 and 24 observed: “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. 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. “ 24. It may be appropriate to have a look at the definition of the Workmen as Amended as it stands as on today and same reads as here under:- “List of persons who, subject to the provisions of Sec. 2(1)(n) are included in the definition of workmen. The following persons are workmen within the meaning of Sec. 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 a lift or a vehicle propelled by steam 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 where of a manufacturing process as denied in Clause (k) of Sec. 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; 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”. 25. Further, strong reliance was placed on Commander Headquarters, Coast Guard Region and others Vs. Vijaya and another[2] wherein learned Judge of the Madras High Court while dealing with Section 12 of the Act and the liability of the principal employer held that : “ordinarily part of trade or business of principal Welder/coolie working with contractor was directed to fix notice board on the wall at the site belonging to Defence Department and when the workman was doing the work, wall collapsed and workman sustained fatal injuries – Whether the incident is covered under the expression ' ordinarily part of the trade or business' of the Defence Department and the department is liable as principal employer – Held no; the main business of the Defence Department is to defend the country; contractor alone is liable” In fact, 1979 (55)FJR 3489 was followed. 26. Further strong reliance was placed R.L. Bhalla Vs. Poonam Devi [3] wherein the learned Judge of the High Court of Delhi while dealing with the definition of Workmen under the Act held that Workman –Chowkidar employed at the residence of his employer sustained injury in accident arising out of and in the course of his employment resulting in his death. No evidence that deceased was working a workman or he used to look after the security work of transport business of his employer – Whether the deceased was a workman and his employer is liable for compensation. Learned Judge in fact relied upon the following cases. Central Mine Planning and Design Institute Ltd., Vs. Ramu Pasi, 2006 ACJ 521 ( SC), Official Liquidator Vs. Kerala State Electricity Board, 1990 ACJ 421 ( Kerela), Rebati Gantayat V. Haguru Sethi, 1986 ACJ 248 (Orissa). State of Gujarat Vs. Rajendra Khodabhai Deshdia, 1991 aCJ 638 (Gujarat) and held no. 27. However, learned counsel representing respondents 1 to 10 placed strong reliance on Galireddy Vs. Chinna Ramaswamy Goud[4] and in District Manager, Food Corporation of India, Kancharapalem Visakahaptnam Vs. Gottavilli Venkata Ratnam[5] and made certain submissions that in the light of these binding decisions of this Court and also in the light of the clear evidence of PW-3 coupled with evidence of PWs 1 and 2, since the deceased would fall within the definition of workman as the definition stands as on today in the light of Schedule II (1) of the Act, the appeal to be dismissed. 28. In Galireddy’s case cited 14 supra, the learned Judge of this Court at paras 9 and 10 held: “As per Section 2(1) (n)a person is employed on a casual basis and who is employed otherwise than for the purpose of employer’s trade or business, is not a workman within the meaning of the Act. Thus, the two ingredients which disentitled a person to be termed as a workman are: he must be employed on casual basis and he must be employed otherwise than for the purposes of employer’s trade or business. On a careful scrutiny of the language employed in the provision, it appears to me that even if one of the two ingredients is absent, then such a person can be termed as workman. Thus, the word and occurring in between the words “ other than a person whose employment is of a casual nature’ and ‘ who is employed otherwise than for the purposes of the employer’s trade or business must be read conjointly. As a necessary corollary, a person who falls within the ambit of one of the two ingredients and does not come under the other ingredient, can still be termed as a workman. For example, even though the employment of a particular person may be of casual nature and thereby falling within the ambit of one of the ingredients, but if that particular person is engaged for the purpose of employer’s trade or business, he must be termed as a workman within the meaning of Section 2(1) (n) of the Act. Similar is the view expressed by a learned single judge of this Court in Divisional Engineer, telecommunications, Srikakulam V. I. Sankara Rao, 1999-II LLJ- 1316 (AP) which is cited by the learned Counsel for the respondents. The learned single Judge of this Court held in that case that a casual worker, who was engaged as a driver on daily wages by the Telecom department, is a workman within the meaning of section 2(1) (n) of the Act. The findings of the learned Judge in the above cited case are apposite, which are extracted hereunder. Thus, it would be seen that if respondent no.1 services were utilized for the purpose of trade or business of the appellant department, then he will fall within the term workman a defined under the act. The admitted evidence in the case is that respondent No.1 services were being utilized whenever there was need of drivers in the department. His services were utilized for the work of the department. His services have been utilized on various dates. In the circumstances, having regard to Section 2(2) of the Act read with Section 2(1) (n) of the Act it follows that the services of respondent No.1 were utilized for the trade or business of the appellant department. That being so, the respondent No.1 was woman within the meaning of Section 2(1) (n) of the Act. Further, in Kerela Balagram vs. Kochumon 1998-I LLJ-744 ( Ker. DB) cited by the learned counsel for the respondents, a Division Bench of the Kerala High Court dealing with Section 2(1)(n) of the Act, held that a workman engaged in farming and agricultural operations comes within the definition of workman. In that case, the employer, a charitable society, which is conducting agricultural operations and farming, even though carrying such operations on charity basis, must be termed as an employer within the meaning of the Act. The division Bench held therein that even if private individual or society conducts agricultural operation for in house use and consumption and not for the purpose of sale, there will be a profit element in the conduct of agriculture. No society or individual will, under normal circumstances, without expecting a surplus, will invest funds for agricultural operations and that the society conducting a destitute home is conducting agricultural operations and so it was held that the said society is an employer within the meaning of the act and will not get absolved from liability to compensate the workman under the Act in the event of his accident during the course of employment in connection with its business. It is further held that even if the employment of the deceased workman is of casual nature, he will not come within the exclusion clause contained in the definition section.” 29. A careful examination of Amended definitions and also schedule II (1) and further in the light of the evidence of PW-3 well supporting the stand taken by PWs 1 and 2, this Court is of the considered opinion that the findings recorded by the learned Commissioner for workman compensation cannot be found fault. 30. Accordingly, the said findings are hereby confirmed. POINT No.2: 31. In the result, this Civil Miscellaneous Appeal being devoid of merit, the same shall stand dismissed. However, the parties to bear their own costs. ______________________ Justice P. S.Narayana 31st July, 2009. KM THE HONOURABE SRI JUSTICE P.S.NARAYANA C.M.A.No. 496 OF 2007 31st July, 2009. [1] 2008 ACJ 1700 [2] 2008 ACJ 169 [3] 2007 ACJ 1951 [4] ALD 1 ( 2001) 171 [5] 2003(2) ALD 146