1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 2680 OF 2009 1 Shridhar s/o Shankarrao Jagade, Age 68 years, Occ. Agriculture, R/o. Zari, Tq.Parbhani, District Parbhani 2 Shantibai w/o Shridhar Jagade, Age 65 years, Occ. Household, R/o. As above ...Appellants Versus 1 Horticulture Officer, Taluka Fruit and Rop Watika (Taluka Fal and Rop Watika) Pathri Road, at Post. Parbhani District Parbhani 2. Superintendent Agricultural Officer, Sahakar Nagar, Agriculture Engineering Work Shop, Sahakar Nagar, At post, Parbhani, Dist. Parbhani ...Respondents ..... Mr. .P.N. Kalani, Advocate for the appellants Mr. N.N. Jadhav, A.G.P. for the respondents. ..... CORAM: R.G. KETKAR, J. DATED: 10TH DECEMBER, 2009 JUGMENT :- 1 This appeal is directed against the judgment and award dated January 17, 2009, passed by the learned Civil Judge, Senior Division 2 Parbhani and Ex-officio Chairman for Workmen’s Compensation at Parbhani in F.A. No. 8 of 2008. By the impugned judgment and order, the learned Trial Judge rejected the petition filed by the appellants under the workmen’s Compensation Act, 1923, (for short “the Act”) for claiming compensation of Rs.4,30,000/- from the respondents, with penalty and interest towards the accidental death of Janabai, daughter of the appellants. 2 This appeal came up for admission before this Court (R.K. Deshpande, J.) on October 1, 2009, when the following substantial question of law was framed;- “The Trial court having recording the clear cut finding that, the death of Janabai was caused during the course of employment, whether, it was right in rejecting the claim of the appellants on the ground that, the deceased was not doing any horticultural operations by relying upon the item No.29 of Schedule II of the Workmen’s Compensation Act, 1923”. The Court also issued notice for final disposal of this appeal to the respondents and in the meantime called for record and proceedings of the case. In view of this order, the appeal is admitted. By consent of the parties, appeal is heard finally. 3 3 The facts and circumstances, leading to filing of the present first appeal, are as under:- The appellants are parents of Janabai Jagade. Initially said Janabai was appointed as Agricultural labourer w.e.f. August 25, 2004. She was promoted as Agricultural Assistant w.e.f. September 1, 2007. The incident in question occurred on November 6, 2007 in the Rop Watika of respondents situate at Pathri Road, Parbhani. Janabai lost her balance and fell in the well and died. The incident was reported at police station Nanalpeth, Parbhani and was registered as A.D. No. 35 of 2007. The police prepared spot panchnama, inquest panchnama and collected post mortem report. The appellants contended that they are dependents of Janabai. She was 26 years of age on the date of incident and was earning salary of Rs.4000/- p.m. They claimed compensation of Rs.4,30,000/-, on the basis of her 50% salary that comes to Rs.2,000/- multiplied by the relevant factor 215.28. The appellants issued demand notice dated May 26, 2008 to the respondents. They failed and neglected to pay the compensation and consequently the appellants filed petition under the Act. The respondents resisted the claim by filing written statement at 4 Exh.8. They contended that Janabai was working as an Agriculture Sevika from August 25, 2004 and was promoted as Agriculture Assistant w.e.f. September 1, 2007. She was a Government servant. The respondents, however, contended that Janabai was not a workman. Hence, the application under the provisions of the Act was not maintainable. It was further contended that GIS amount of Rs. 60,000/- and security deposit of Rs.10,000/- were paid to the appellants as per the M.C.S. Rules. Besides, an amount of Rs. 38,000/- was collected from employees and the same amount was also paid over to the appellants. On these among other grounds, the petition filed by the appellants was resisted. On the basis of the rival pleadings, the learned trial Judge framed necessary issues. The parties led oral as well as documentary evidence, In support of the claim, the appellants examined P.W.1 Shridhar Jagade at Exh.12. The appellants also submitted spot panchnama at Exh.21, inquest panchnama at Exh.22, extract of service book Exh.26-A, copy of notice Exh.28 on record and closed their evidence. On behalf of the respondents, R.W. 1 Shri Kazim Hussain s/o Jamin Hussain was examined at Exh.17. The respondents produced appointment letter at Exh.15, extract of service book at Exh.29, extract of payment register at Exh.30, 31, 32 and closed their evidence. 5 After considering the material on record and hearing learned advocates appearing for the parties, the learned trial Judge held that deceased Janabai Jagade was an employee of the respondents. He also came to the conclusion that she was 28 years old at the time of incident and was drawing salary of Rs.4000/- p.m. He however, came to the conclusion that death of Janabai did not occur during the course of employment and accordingly dismissed the petition. Hence, this first appeal. 4 Perusal of the impugned judgment and order indicates that the learned trial Judge considered the spot panchnama at Exh.21 and came to the conclusion that Janabai was not doing horticulture operations by tractor or other mechanism. The learned trial Judge further observed that the parents did not file on record statements of labourers, who were present on the spot. In the view of the learned trial Judge, it was necessary for the appellants to examine eye witness to narrate the incident. He also came to the conclusion that duty list of Janabai was not filed on record to show that she was employee for doing the horticultural operation as defined under Item xxix of Schedule II of the Act. In view of the findings recorded by the learned trial Judge, he came to the conclusion that she was not a workman as defined under Section 2(1)(n) and Item xxix of Schedule II of the Act. 6 5 In support of the appeal, Shri Kalani, learned counsel for the appellants submitted that the impugned judgment and order is wholly perverse and shows total non application of mind on the part of the learned trial Judge. He invited my attention to the assertions made in the claim petition and written statement at Exh.8, filed on behalf of the respondents. He submitted that from perusal of the claim petition and written statement at Exh.8, it would be clear that respondents did not dispute the fact that Janabai was working as Agricultural Assistant with the respondent No.1. It was further asserted in the petition that incident occurred in the course of employment of respondent Nos. 1 and 2 and death of Janabai occurred during the course of employment. In the written statement Exh.8, the respondents admitted that Janabai was working as Agricultural Sevika and that she was in the employment of the respondents as agricultural Assistant in the employment of respondents. It however further contended that she was not workman as defined under Section 2(1) (n) of the Act. 6 On behalf of the appellants, Shri Jagade was examined at Exh. 12, who reiterated the contentions raised in the claim petition. In the cross examination he admitted receipt of Rs.60,000/- towards G.I.S. as also refund of security deposit of Rs.10,000/-. He further admitted receipt of Rs.38,000/- paid by the respondents by way of financial assistants. 7 7 On behalf of the respondent R.W. 1 Shri. Kazim Hussain s/o Jamin Hussain was examined. In the deposition he admitted that Janabai was working as Agriculture Assistant in their department. She was working on the date of incident and was discharging the duties, which were assigned to her. On the basis of this material on record Shri Kalani, learned counsel for the appellants, submitted that having regard to the provisions of Section 2(1) (n) of the Act r.w. Item xxix of Schedule II, irresistible conclusion is that Janabai was workman working with the respondents. Section 2(1) (n) of the Act defines the term “Workman”. Section 2(1)(n) reads as under;- “2(1) In this Act, unless there is anything repugnant in the subject or context,- (n) “workman” means any person, who is;- (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 dependents or any of them.” 8 Clause xxix of Schedule II of the Act under Section 291) (n) reads as under;- 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 employed in horticultural operations, forestry, bee-keeping or farming by tractors or other contrivances driven by steam or other mechanical power or by electricity; 8 On the other hand, Shri Jadhav, learned A.G.P. submitted that the spot panchnama was not proved by the appellants. If the spot panchnama is not proved, the contents thereof cannot be read. He further submitted that Janabai was not a workman and consequently the appellants’ claim petition cannot be entertained under the Act. Finally he submitted that the appellants should have produced the duty list of Agriculture Assistants or should have made application before the trial court calling upon the respondents to produce her duty list. Since the duty list was not produced by the appellants, it cannot be said that the learned trial Judge committed any error while dismissing the petition. 9 After hearing learned counsel for the parties and after going through the material on record, the following things emerge as undisputed facts;- 9 i) Janabai was employed as Agriculture Assistant by the respondents; ii) on the date of the incident she was discharging the duties assigned to her; iii) The incident occurred on November 6, 2007 in the Rop Watika situate at Pathri Road, Parbhani. iv) the Group Insurance amount of Rs.60,000/- was paid to the appellants and the amount of security deposit of Rs.10,000/- was refunded to them. The employees of the respondents have contributed amount of Rs.38,000/- and paid to the appellants,which was also considered by the appellants. 10 The learned trial Judge considered the spot panchnama at Exh. 21 and came to the conclusion that from description of spot panchnama, it appears that Janabai was not doing any horticulture operation by tractor or other mechanism. As indicated above, this was not even the case pleaded by the respondents in the written statement. Even the witness examined on behalf of the respondents did not depose that Janabai was not engaged in horticulture operation. On the other hand, R.W.1 specifically deposed that Janabai was discharging duties assigned to her on the date of incident. The learned Trial Judge held that it was necessary for the appellants to examine eye witness to narrate the incident. From material on record, I 10 am satisfied that the appellants have duly established their claim. The submission is made on behalf of the respondents that the spot panchnama is not proved by the appellants and consequently the contents of spot panchnama cannot be taken into consideration. The learned trial Judge mainly relied upon the spot panchnama for coming to the conclusion that Janabai was not doing any horticulture operation by tractor or other mechanism. If the submission made on behalf of the respondents is accepted, the main ground for rejecting the petition of the appellants goes away. It is relevant to note that it was not disputed in the written statement that she was working in Rop Watika of respondents and that she was discharging the duties assigned to her. 11 The learned trial Judge accepted that Janabai was getting salary of Rs.4000/- p.m., he however, rejected the petition on the ground that Janabai was not workman and she was not doing any horticultural operation. In view of the conclusion arrived by me, the impugned judgment and order cannot be sustained. The impugned judgment and order is quashed and set aside and the matter is remanded to the trial Judge for determining the compensation as also award of interest on the basis that Janabai was 28 years old on the date of incident and was drawing salary of Rs.4000/- p.m. The learned Trial Judge will also issue notice calling upon the respondents before imposing the penalty. 11 The learned trial Judge will decide the claim in accordance with law and in the light of the observations made herein above, as early as possible and in any case, within three months from the date of receipt of record and proceeding. Office to remit the record to the trial court urgently. The appeal is allowed in the aforesaid terms. However, in the circumstances of the case, there shall be no order as to costs. *****