Orissa High Court
Rebati Gantayat vs Haguru Sethi And Ors. on 6 January, 1986
Equivalent citations: 1(1986)ACC497
JUDGMENT P.C. Misra, J.
1. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 against an order of the Commissioner under the Workmen's Compensation Act, Balasore under Section 3 of the Act refusing to grant compensation to the present appellant.
2. The appellant filed an application before the Commissioner under the Workmen's Compensation Act, Balasore alleging that her husband late Gangadhar Gantaya was a Workman under the respondent Haguru Sethi who had a business establishment dealing with tamarind and rice etc Her case is that her husband was earning a monthly-wage of Rs. 120/- and during the course of employment he died of an accident. He was employed by his employer for plucking tamarind and while doing so, a branch of the tamarind tree broke down as a consequence of which he had a severe fall sustaining various injuries. He was then taken to the Hospital where he died. The case of the respondent is that Gangadhar Gantayat was a casual labourer and on the date of accident he was working on share basis along with Brother person and be died in the alleged accident due to fall from the tamarind tree from which he was plucking tamarind. The respondent further alleged that though on humanitarian grounds he had some money for his Svdhi ceremony there is no legal obligation on his part to pay any compensation for his death. According to him, Gangadhar Gantayat was not workman as per the provisions of Section 2(1)(n) read with Schedule II of the Act and as such the present appellant is not entitled to compensation as right. The next contention of the respondent is that notice of claim as required under Section 10 having not been served the proceeding under Section 3 of the Act is not maintainable.
3. The Commissioner under the Workmen's Compensation Act in the impugned order held as follows:
(i) The claimant has failed to prove that there was a business organisation of the respondent where the deceased Gangadhar Gantayat was a workman,
(ii) The deceased was not a workman as defined in Section 2(1)(n) and Schedule II of the Act; and
(iii) The statutory provision of Section 10 of the Act having not been complied with, the proceeding is defective which cannot be cured by the proviso to Section 10 of the Act.
4. The appellant assails all these findings in this appeal.
5. The main point that has been argued in this appeal is whether the claimant's husband was a workman as defined in the Act. As already stated, it is the case of the claimant-appellant that her husband was a workman as defined in the Act whereas the case of the respondent is that he was a casual laborer. In order to appreciate the question, the definition of' workman' as given in Section 2(1)(n) requires to be scrutinised. Section 2(1)(n) runs as follows:
(a) 'workman' means any person (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) who is:
(i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890, not permanently employed in any administrative) district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or
(ii) employed on monthly wages not exceeding one thousand rupees, 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 dependants or any of them.
6. From the definition it is clear that there must be a relationship of an employer and an employee before a person can be said to be a workman vis-a-vis his employer. Once such a relationship is established it has to be further analysed to find if the employment of the employee is of a casual nature and if he was employed for the purpose of employer's trade or business. Furteer under the same definition in order that a person may be considered to be a workman within the meaning of the Act, he must be employed in such capacity as is mentioned in any of the items included in Schedule II. The State Governments have been empowered by the provisions of the Act to add further categories in Schedule II by virtue of which different State Governments have extended the Act to apply to other hazardous occupations depending upon the local conditions of the State. There is, however, a difference of opinion among the High Courts whether the entries in Schedule II are illustrative or exhaustive. Our High Court is one which hold the latter view that Schedule II gives a comprehensive list which though not exhaustive is certainly illustrative of the nature of the work which makes an employee a workman within the meaning of the Act--vide Ladi Jagannadham v. Smt. Padmabati Baurani . The very fact that in Sub-section (3) of Section 2, the State Government have been empowered to add to the Schedule II any class of persons employed in any occupation which it is satisfied is a hazardous occupation suggests that the list of occupations enumerated in Schedule II is not exhaustive. It is not possible to enumerate the nature of employment exhaustively in a growing society where the scope and nature of employment is ever expanding. The basis that the list in Schedule II is not exhaustive and is merely illustrative leads me to further consideration as to whether the nature of the work which the employee was entrusted to do is akin any of the items in Schedule II of the Act. According to the appellant, the nature of the work in which her deceased husband was employed is the nature of the work in Clause (xxiii) of Schedule II. Clause (xxiii) of Schedule II reads as follows:
The following persons are workmen within the meaning of Section 2(1)(n) and subject to that provisions of the section, that is to say, any person who is:
X X X (xxiii) employed in the tapping of palm trees or the felling or logging of trees, or the transport of timber by inland waters, or the control or extinguishing of forest fires, or X X X In my opinion the plucking of tamarind from the tamarind tree cannot be one akin to the nature of work in clause (xxiii) of Schedule 11. By virtve of Orissa Gazette Notification dated 23 2.1979 some new items were added to Schedule II after item (xxiii) in its application to the State of Orissa. The said new items do not include a job of the nature in question in this case.
7. The next important question is as to whether the employment of the deceased was of a casual nature and if his employment was for the purpose of the employer's trade or business for determination of which the evidence of the witnesses examined on behalf of the present appellant requites consideration. P.W. 1 Baidbar Sethi deposed that late Gangadhar was serving in the house of Haguru Sethi. His evidence does not establish that late Gangadhar was working for any trade or business of the respondent PW 2 Birabhadra Singh in his cross-examination stated that Gangadhar Gantayat was maintaining accounts of the business and after his death the respondent is maintaining the same himself. His evidence rather goes to corroborate that Gangadhar never worked in the field of the respondent but was working in his house. PW 3 Sanatan Swain stated that Gangadhar was serving under Hagura and was managing his business. The witnesses examined on behalf of the respondent deposed to the effect that the husband of the appellant was purely a casual laborer and was in to way employed in the trade or business of respondent. It is for the claimant to prove that the deceased was a workman employed in the trade or business of his employer from the evidence led in the court below I do not think that the appellant has been able to discharge the burden of proving that her husband was a workman as defined in the Act.
8. Having held that the husband of the appellant was not a workman as per the definition of the Act, it is unnecessary to go into the other questions as to whether the proceeding was defective for non-compliance of Section 10 of the Act and in that matter as to whether the notice contemplated under Section 10 of the Act is mandatory or obligatory.
9. I do not find any other sustained question of law to be gone into in this appeal. The appeal is accordingly dismissed. There would be, however, no order as to costs of this Court.