Patna High Court
Mossomat Motijhari Devi vs Bindeshwari Prasad Chourasia on 14 July, 1987
Equivalent citations: AIR1988PAT5, 1987(35)BLJR707, AIR 1988 PATNA 5, 1988 LAB IC 421, 1987 BLJR 707, (1987) PAT LJR 789, (1987) BLJ 749, 1987 BBCJ 585, (1988) 1 LAB LN 978, (1988) ACJ 109
JUDGMENT S.S. Sandhawalia, C.J.
1. The true import of the definition of a workman in Section 2(1)(n) of the Workmen's Compensation Act, 1923 and in particular the impact of the exclusionary clause therein -- "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" -- was the ticklish question which necessitated this reference to the Full Bench. Equally at issue was the correctness of the earlier view of the Division Bench in 1973 Pat LJR 287 (Jasimuddin v. Mst. Hajiza Bibi).
2. The facts He in a narrow compass and, indeed, in the context of the proviso to Section 30(1) of the Workmen's Compensation Act (hereinafter to be referred to as the 'Act) providing that no appeal shall lie against an order unless a substantial question of law is involved therein, they pale into relative insignificance. Nevertheless the basic terra-firmd of the matrix thereof giving rise to the issue aforesaid, has to be necessarily noticed albeit with brevity. The appellant Most. Motijhari Devi claims to be the wife of late Rameshwar Bind and had preferred the application for compensation in her alleged capacity of being his sole legal heir. It was her case that Rameshwar Bind abovesaid was employed by respondent Bindeshwari Prasad Chourasia for nearly fourteen and half months prior to the 17th of Sept. 1975 first for carrying building materials from the market place to the site and later in the construction of the residential house of the respondent. It was alleged that the deceased had asked the respondent to supply adequate building materials, which was not done, and on the 17th of Sept he fell from the machaan in the course of the construction of the house of the respondent and suffered injuries to which he succumbed later at that Patna Medical College Hospital. The appellant served notice on the respondent under Section 10(2) of the Act which was refused by him leading to the proceeding before the Commissioner under the Act.
3. In his written statement the respondent took up the plea that the case as framed was not maintainable and categorically denied the employment of Rameshwar Bind for fourteen and half months and instead the plea was that he was a purely casual worker brought by the mason Butan Rai and had worked in the house for paltry four days only. It was the case that Butan Rai, mistry, used to pick up labourers from the Shesh Mahal Chawk in Arrah town and the deceased was so engaged only four days prior to the accident in construction of the building which had started only a week ago. In terms it was pleaded that the deceased was not a workman as defined in the Act. The allegations of fact made on behalf of the applicant were categorically controverted.
4. The learned Commissioner formulated the points which arose for determination as under : --
"(1) Whether the death due to accident arose during and in the course of employment of the workman?
(2) Whether the workman was in the employment of the opposite party for a period of 14 1/2 months so as to qualify him for compensation?
(3) Whether the applicant is the widow of Rameshwar Bind and legal heir of her deceased husband?"
On a detailed discussion of the evidence he held on point No. 1 that on the fateful day the workman fell down and died, but the fact that he was a workman and was in course of employment as a workman to qualify for compensation was not proved on the record On point No. 2, the Commissioner held that the story of the applicant that Rameshwar Bind was working on a monthly salary and that also for 14 1/2 months for masonary work had not at all been proved. On the contrary, he found that the deceased was a casual worker who was working as a labourer with mason Butan Rai Mistry. Consequently, he was not a workman as defined in the Act so as to qualify him for compensation. On what now turns out to be the crucial point No. 3 the Commissioner held that the appellant had not been able to even remotely prove her stand that she was the widow of the deceased and the alleged factum of the marriage of which she could be the best witness had not been even remotely established which was a serious lacuna in her case to qualify herself as a legal heir of the deceased. On the aforesaid findings the Commissioner found that the appellant was not entitled to any compensation and dismissed the application.
5. This appeal originally came before a learned single Judge, but apparently because of some ticklish legal issues raised it was referred to a hearing by the Division Bench. Before the Division Bench the learned counsel for the appellant placed firm reliance on 1973 Pat LJR 287 (Jasimuddin v. Mst. Hafiza Bibi), the correctness of which was challenged on behalf of the respondent. Raising some doubts about the ratio therein, the Division Bench by its order of reference dated the 21st of March, 1987 directed its adjudication by a larger Bench, and that is how it is before us now.
6. Learned counsel for the appellant Mr. Sachchidanand Sahay took up the extreme stand that if a workman comes within the ambit of Sub-clause (ii) of Clause (n) of Section 2(1) of the Act, then even though he may be employed for a single day and that also in a trade or business which was not the occupation of the employer, he would still be a workman within the meaning of Section 2(1)(n) and, therefore, entitled to compensation under the Act. In essence, he took up the position that a daily worker employed for a single day was also a workman under the Act irrespective of the fact whether he was employed for the trade or business of his employer or otherwise. Reliance was sought to be placed on AIR 1938 Bom 110 (Ellerman's City and Hall Lines v. Asis Thomas), AIR 1943 Lahore 52 (Cooling Equipment Co. Ltd. v. Mt. Zainab Bibi), AIR 1960 Madh Pra 267, (Ghasiram Motiram Kulmi v. Smt. Mannibai Nathumal), 1981 Lab 1C 493 (J & K),(Public Works Department v.
Commr., Workmen Compensation), AIR 1963 Madh Pra 24, (Gorelal v. Dropdibai), 1980 Lab IC 300 (All), (Mahmood v. Balwant Singh) and AIR 1933 Bom 270, (Ebrahim Haji Jusab v. Jainibi Anuddin).
7. Apart from the legal issue, learned counsel for the appellant sought to frontally assail the firm finding of fact arrived at by the Commissioner that the appellant had not been able to establish that she was the lawfully wedded wife of the deceased and was thus entitled to compensation as his widow.
8. There is no gainsaying the fact that the legal issue posed at the very outset is not free from difficulty and has given anxious moments to great judicial minds over well-nigh a century and has inevitably led to some cleavage of judicial opinion and, in any case, to some judicial ambivalence. However, I am firmly of the view that we are precluded from examining and adjudicating upon the same because this appeal must founder on the threshold issue of the firm finding of fact arrived at by the Commissioner that the appellant has been signally unable to establish that she is the widow of the deceased and consequently entitled to compensataion as an heir.
9. In the aforesaid context, it becomes necessary to advert to the relevant part of Section 30 and in particular to the first Proviso to Sub-section (1) thereof.
"30( 1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely : --
(a) an order awarding as compensation a lump sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(aa) .....
(b) .....
(c) .....
(d) .....
(e) .....
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees :
... ... ...
In the light of the aforesaid proviso it seems necessary to quote in extenso the finding of the Commissioner arrived at on the crucial question of the alleged marriage of the appellant with the deceased in para 8 of the judgment under appeal :--
"8. Now coming to point No. 3 I would like to mention that the applicant is claiming to be the widow of Rameshwar Bind but she in her evidence has given that she does not remember in which year she was married. She is also not remembering who was the priest or Hajam in her marriage. She does not remember whether Barat for the purpose of marriage went there or not. According to her, elder brother Sukhu who is alive did Kanyadan but he has also not been examined. She also does not remember whether religious ceremony was performed. Thus the fact of marriage of which she can be the best witness has not answered regarding solemnisation of marriage and this is a serious lacuna in her case to qualify to be the legal heir of the deceased."
10. From the above it is somewhat too manifest that the finding aforesaid was one of pure fact raising no question of law far from there being any substantial question of law involved therein as is the mandatory requirement of the proviso to Section 30(1) of the Act. Consequently, in this appeal it is neither possible nor desirable to reappraise a pure finding of fact in face of the clear bar spelt out by Section 30 of the Act. The view I am inclined to take is amply buttressed by the Division Bench judgment in AIR 1943 Lahore 52 (Cooling Equipment Co. Ltd. v. Mt. Zainab Bibi) on which reliance, in fact, was placed by the learned counsel for the appellant himself. Therein also the identical question whether the claimant was or was not the deceased workman's widow was raised and it was held in no uncertain terms that it was a pure question of fact which could not be agitated and disturbed in appeal. Sale, J. speaking for the Division Bench held in no uncertain terms as follows : --
"In other words, it is contended that once an appeal is admitted on a substantial question of law, the whole case is open to investigation by the High Court. We are unable to agree with this contention..... Where the question of fact is wholly independent of any question of law, the High Court in appeal is, in our view bound by the finding of fact, arrived at by the Commissioner.
In the present case, the question whether the petitioner is or is not a widow of the deceased is admittedly wholly independent of any point of law involved in this appeal, and we, therefore, hold that we are precluded by Section 30 from a reconsideration of the Commissioner's finding that the petitioner is the widow of the deceased."
I am wholly in agreement with the view enunciated above and in accord, therewith, would consequently hold that it is not open to this Court to reverse a firm finding of pure fact arrived at by the Commissioner in the judgment under appeal.
11. Even placing the case of the appellant at the highest and assuming entirely as a matter of argument (without in the least holding so) that it would be open to this Court to examine the finding of fact, I am still inclined to the view that no case whatsoever is made out to arrive at a conclusion contrary to one arrived at by the Commissioner. Learned counsel for the appellant had assiduously and vehemently attempted to challenge that finding and even drew our attention to the evidence on the point, but I find not the least merit in the said challenge or anything in the evidence which necessarily warrants the disturbance of the considered finding arrived at by the Commissionser. Consequently I would affirm the finding of the Court below on point No. 3 unhesitatingly.
12. Once it is held as above it necessarily follows that the present appeal must fail and has to be dismissed. It is a sound canon of judicial restraint that the Courts, and in particular larger Benches, would adjudicate only on issues which directly fall for adjudication to effect the fortunes of the litigants. If as has been held above the appeal must fail, it would be entirely academic and indeed wasteful, if not obiter, to enter the thicket of the legal issues which at one stage were sought to be raised in the present appeal. Those questions must necessarily wait for another case in which they directly and immediately fall for consideration and adjudication.
13. To finally conclude, this appeal fails and is hereby dismissed, but in view of the ticklish questions originally raised, parties are left to bear their own costs.
Uday Sinha, J.
14. I agree.
Birendra Prasad Sinha, J.
15. I agree.