IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 541/2006 Ram Bahadur and another .. Appellants. Versus Sharda Leesa Factory Jawahar Jyoti, Damuadhunga, Kathgodam Nainital .. Respondent. Sri I.S. Mehra, learned counsel for the appellants. Sri Prabhat Pandey, learned counsel for the respondent. Dated: March 02, 2009 UHon’ble B.C. Kandpal, ACJ: U This appeal under Section 30 of Workmen’s Compensation Act, has been preferred against the judgment and award dated 10-7-2006, passed by the Commissioner Workmen’s Compensation/ Deputy Labour Commissioner, Uttaranchal, Haldwani in WCA No. 49/2002, Ram Bahadur and another Vs. Sharda Leesa Factory. 2- Brief facts of the case giving rise to this appeal are that the appellants/claimants filed claim petition before the Workmen’s Compensation Commissioner/ Deputy Labour Commissioner, Haldwani for the death of Thakur Das occurred during the course of his employment under the respondent/Sharda Leesa Factory. According to the claimants Thakur Das died on 20-8-2002 due to the accident occurred on 18-8-2002 while he was working under the employment of the respondent. At the time of the accident Thakur Das was 21 years of age and he was being paid Rs. 150/- per day as wages by the respondent/ factory. 3- On the claim application notice was issued to the respondent/Sharda Leesa Factory. As the employer did not file written statement in the claim petition the 2 petition was ordered to proceed exparte against the respondent vide order dated 30-4-2003. However, the respondent filed application dated 29-5-2003 for setting aside the order for proceeding the case exparte against it, which was allowed by the trial court and thereafter the respondent/Factory filed its written statement denying the allegations made in the claim petition. The respondent/Factory has denied the employment of the deceased Thakur Das with it. However it has been contended in the written statement that the respondent asked the R.K. Electrical situated at Panchakki Chauraha Kathgodam to replace the electric bulb by fixing electric tube in the Factory premises. Son of R.K. Electrical came to the factory premises to fix the electric tube and on the start of the work he suddenly fell down and got injured. It has further been alleged that the deceased was studying in B.Com-I year as regular student and he also used to work in his Electric Shop. He was not employed under the respondent/factory and he was never paid Rs. 150/- per day as wages by the Factory as there was no relationship of workman and employer between the deceased and the Factory. Hence prayer was made for dismissal of the claim petition. 4- Thereafter the claimants in support of their claim adduced documents and also got examined Ram Bahadur, as P.W.1 and Anand Singh, as P.W.2. The opposite party also filed documentary evidence and examined Alok Sharda and Narendra Pal Singh. 5- The Workmen’s Compensation Commissioner after having considered the entire material available on record and hearing learned counsel for the parties came to the conclusion that the deceased Thakur Das was not in the employment of the respondent/factory, hence he 3 does not come within the definition of the workman. The Workmen’s Compensation Commissioner accordingly dismissed the claim petition vide judgment and award dated 10-7-2006. 6- Feeling aggrieved by the aforesaid judgment and award the appeal U/S 30 of the Workmen’s Compensation Act 1923 has been preferred by the representatives of the deceased before this court. 7- At the time of the admission of the appeal the following substantial questions of law were framed in the memo of appeal:- A. Whether the learned Commissioner is justified in deciding the claim petition and passing the final order without framing any issue as per mandatory provision of Rule 28 of Workmen’s Compensation Act 1923?. B. Whether the learned Commissioner is justified in dismissing the claim petition of the appellant holding that deceased Thakur Das was not a workman, without discussing and specifying the specific amended term of “workman” defined in Section 2(n) (II) read with item no. (XXXI) of Schedule-II Workmen’s Compensation Act 1923?. C. Whether the learned Commissioner is justified in deciding the claim petition of the appellant and passing the final order without the interpretation of established facts and law?. 8- Heard Sri I.S. Mehra, learned counsel for the appellant and Sri Prabhat Pandey, learned counsel for the respondent and perused the record. 4 9- The controversy involved in this case is whether the deceased was engaged in any such capacity as specified in Schedule-II of the Workmen’s Compensation Act, 1923 for carrying out the work of the employer and as to whether the deceased was a workman on the day/year of his accident. It is also to be considered as to whether the deceased died due to accident arising out of and in the course of his employment. 10- As far as the evidence adduced by the parties is concerned, the learned Workmen’s Compensation Commissioner has discussed the evidence adduced by the parties in detail. The learned Commissioner has discussed the evidence of Ram Bahadur father of deceased Thakur Das, who has deposed in his statement that his son died due to accident arising out of and in the course of his employment, but the letter which was sent by the father of the deceased to Chief Minister claiming for financial help, nowhere indicates that his son had been working in Sharda Leesa Factory (respondent). The first information report which was lodged by Ram Bahadur also nowhere indicates that his son had been working in Sharda Leesa Factory. The Workmen’s Compensation Commissioner has further discussed the evidence of P.W.2, Anand Singh, who although in his examination-in-chief has deposed that Thakur Das had been working in the Sharda Leesa Factory for the last one year but in the cross-examination he has stated that he although put his signature in the inquest report of the deceased Thakur Das, but he did not tell it to the police that Thakur Das was in the employment of respondent Sharda Leesa Factory. 5 11- Further the Workmen’s Compensation Commissioner has discussed the evidence of Alok Sharda, partner of Sharda Leesa Factory, who produced the attendance register of the workmen along with audit report for the year 2002-2003 and this witness has stated that Thakur Das had never been engaged by the Factory for any work related to the business of the Factory. The learned Commissioner has further discussed the evidence of the aforesaid witness who deposed that elder brother of Thakur Das runs an electrical shop under the name and style of R.K. Electrical, which is at a distance of about 400 paces from the Factory and on the date of accident the Factory informed R.K. Electrical for changing a tube light and this person was sent by R.K. Electrical. However, the deceased had never been engaged by the respondent/factory for changing the bulb. The Workmen’s Compensation Commissioner further discussed the evidence of one Narendra Pal Singh, who deposed that he had been working in the factory for the last 6-7 years and Thakur Das had never worked with him in the factory. 12- There is a specific finding recorded by the Workmen’s Compensation Commissioner that no appointment letter or the letter showing therein that the deceased had ever been engaged as a casual labour or as partial or permanent employee by the respondent/factory, could be placed before the court below. I find myself in full agreement with the finding recorded by the Workmen’s Compensation Commissioner that the respondent/factory asked R.K. Electrical for repair of the electric bulb/tube and R.K. Electrical on its own sent Thakur Das for that purpose. Further Thakur Das had never been engaged either a casual employee or 6 a temporary or permanent employee by the respondent/factory. 13- The Workmen’s Compensation Act underwent an amendment by Act 46 of 2000 whereby in the definition of ‘Workman’ the words “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” were omitted. It is true that after the amendment the question whether the person works for employer’s trade or business or not are wholly immaterial and inconsequential. The word “Workman” under the Workmen’s Compensation Act now simply means any person employed in any capacity as specified in Schedule-II and a perusal of Schedule-II shows that how comprehensive and extensive are the areas of work and employment and almost any kind and every kind of work is included therein. It is, therefore, firstly to be established that the workman should be under the employment of the respondent/factory. He may be in any capacity but he should be under the employment of the respondent/factory. In the instant case it is quite clear from the perusal of the evidence available on record that the deceased Thakur Das had neither been in casual capacity nor in partial or permanent capacity under the employment of the respondent/factory. The appeal U/S 30 of the Workmen’s Compensation Act lies to the High Court on a substantial question of law and a substantial question of law in my opinion will carry the same meaning as is commonly understood. This court cannot proceed on the basis that re-appreciation of evidence would give rise to a substantial question of law as the evidence has been appreciated by the Workmen’s Compensation Commissioner and it is settled law that when two views 7 are possible and out of those two views one view has been adopted by the trial court the appellate court cannot substitute its own view in place of the possible view adopted by the trial court. 14- The learned counsel for the appellant also placed some decisions in support of his contention that in case if the workman has been engaged even for a day as a casual labour, it will be deemed that the deceased was a workman within the meaning of Workmen’s Compensation Act and his dependents are entitled to compensation. He has cited before me 2007(2) T.A.C. 45 (M.P.) Nandu and others Vs. Sheela Bai and others. The judgment cited before me has been considered thoroughly by me , but I am of the view that the same is not applicable to the facts and circumstances of the present case as the facts in the cited judgment are that the employer in that case in the joint reply admitted the engagement of the deceased for the work of motor repair. The only plea raised by the employer in that case was that the deceased was not a skilled labour. Here in the instant case the employer has straightaway pleaded that Thakur Das had never been in the engagement for the electrical work or any type of work in the respondent/factory. 15- The learned counsel for the appellant has further cited 2008 (118) FLR 78 (Jharkhand High Court) Satsang and another Vs. Sate of Jharkhand and another. I have gone through this judgment also and I am of the view that the same is not going to help the appellants in any way. In the cited case it has been held that the workman under the Workmen’s Compensation Act will simply mean any person employed in any capacity as specified in Schedule-II, but in the 8 instant case, as I have already observed that the deceased cannot be considered as a workman as he had never been employed in any capacity by the respondent/factory as specified in Schedule-II. 16- The other citations cited by the learned counsel for the appellant, viz. (1) 2007(115) FLR 476, Umesh Chandra Srivastava, Asstt. Engineer, P.W.D. Barkot, Uttarkashi Vs. Habib Ahmad and others and (2) 2006(1) T.A.C. 407 (Kerala) Shah Vs. Rajankutty, are also not applicable to the facts and circumstances of the present case as in the cited judgments in one case the deceased was employed as mason for constructing the house of the employer while in the instant case there is no cogent evidence showing that the deceased had ever been engaged in any capacity by the respondent/factory. In the another cited case the deceased was covered under the definition of workman as he was employed by the employer as a casual workman, while in the instant case as already observed in the foregoing paragraphs that the deceased had never been engaged by the respondent/factory. I am, therefore, of the opinion that none of the rulings cited by the learned counsel for the appellant is applicable to the facts and circumstances of the present case. 17- The learned counsel for the appellant has further pointed out before me that the Workmen’s Compensation Commissioner has not considered the deceased as a workman on the ground that he was studying in B.Com.-I and this ground alone cannot be considered to be sufficient for not considering the deceased as the workman. I find myself in full agreement with the contention raised by the learned counsel for the appellant. It is not the intention of the law that in case if 9 a person engaged in any factory either as a casual labour or partial or permanent workman and at the same time he is studying in a school then this alone by itself would not conclusively establish that he was not working in the employment of the respondent factory. But this aspect only would not be sufficient to hold that the deceased was under the employment of the respondent/factory in absence of any cogent evidence with regard to the engagement of the deceased with the respondent/factory either as a casual or partial or permanent workman. 18- Section 3(1) of the Workmen’s Compensation Act reads that “the accident or the death should arise out of and in the course of the employment.” Therefore, in order to establish this aspect there must be an engagement for doing any type of casual or partial or permanent work between the workman and the employer, which is totally lacking in the instant case. 19- For the reasons stated above, I do not find any infirmity or illegality in the impugned judgment and award passed by the Workmen’s Compensation Commissioner. Accordingly the substantial questions of law framed in the memo of appeal are answered against the appellants. 20- The appeal lacks merit and is liable to be dismissed. 21- Accordingly, the appeal is dismissed. The impugned judgment and order passed by the learned Workmen’s Compensation Commissioner, is hereby confirmed. ( B.C. Kandpal, ACJ) ISB