Kerala High Court
Payyannur Educational Society vs Narayani on 20 March, 1995
Equivalent citations: 1996ACJ73, (1996)IIILLJ1212KER
Bench: K.T. Thomas, N. Dhinakar
JUDGMENT Thomas, J.
1. Two workmen while engaged in a land excavating operation, were buried alive under heaps of mud billowed on them in a landslide and the site became their grave instantaneously, Dependents of those who died in such a trice made claims for compensation from the owner of the land (appellant) and two others (respondents 2 and 3). The Workmen's Compensation Commissioner (for short 'the Commissioner') found that it was the appellant who had employed them, and on that finding he directed the appellant to pay compensation amount to the dependents of those two victims. These appeals are in challenge of the common award passed by the Commissioner.
2. There is no dispute that at the time of the catastrophe the two workmen were engaged in excavation work on appellant's land. Appellant is a registered society called "Payyannur Educational Society". Appellant's contentions were that the two workmen were not employed by the society but they were recruited by the second respondent to whom the society sold soil at the rate of Rs. 15/- per Lorry load and that the mishap occurred during the operation undertaken by the second respondent who was permitted by the society to do the excavatory work and collect the soil. In other words, appellant's main case is that it was not the employer.
3. The Commissioner found that the victims were actually employed by the appellant-society and hence it was held liable to pay the compensation amount assessed in accordance with the table prescribed.
4. Learned counsel for the appellant contended that the aforesaid finding has no support from reliable evidence in the case and that the evidence has established the second respondent as the employer and that second respondent was permitted to dig the soil.
5. The finding on facts (that the deceased victims were the workmen of the appellant society) is not open to challenge in the appeal filed under Section 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') without being linked to a substantial question of law. However, learned counsel formulated a question like this: When the claimants themselves admitted that the victims were engaged by the second respondent, is it open to the Commissioner to hold otherwise? Learned counsel contended that the aforesaid question is a substantial question of law.
6. We think, even assuming that the appellant's version, on that score, is correct, the ancillary question is whether the appellant-society can escape from liability under Section 12(l) of the Act. The subsection is extracted below:
"Contracting - (1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed".
7. Learned counsel for the appellant advanced the following arguments to bypass Section 12 of the Act. That provision can be invoked only if the digging work as part of "the trade or business" of the society and further such should have been the normal business of the society. According to the counsel, the ordinary business of the society is to impart education and the digging work was not a part of it at all. Learned counsel invited our attention to the decision of the Constitution Bench of the Supreme Court in Unnikrishnan v. State of A. P. AIR 1993 SC 2178 in which it was held that the work of imparting education cannot be treated as trade or business, but it is only a charitable activity. He also cited the decision of the Division Bench of this court in Hassan v. Mohammed 1994 1 KLT 502 which was rendered in a case involving Kerala Buildings (Lease and Rent Control) Act and tried to draw support for his contention that the word "business" in Section 12 of the Act must be understood as synonymous with trade.
8. Learned counsel then proceeded to contend that the word ''ordinarily" in Section 12 means "usually" or in circumstances "other than extraordinary" etc. In support thereof he cited a number of decisions which we do not wish to catelogue here except pointing out that in those decisions the word "ordinarily" was construed in other contexts and not in the context of Section 12 of the Act.
9. It is trite law that the safe guidance for interpreting any provision in a statute or for understanding the scope and meaning of a particular word in provision, is to ascertain the intention of the legislature. However wide in the abstract, general words and phrases are more or less elastic and admit of restriction or extension to suit the legislative intention. "The object of the legislation would afford answer to the problems arising from ambiguities which it contains", (vide Maxwell on the "Interpretation of Statutes" 12th edition at page 86).
10. We bear in mind that one of the objects for enacting the Act even as early as 1923 was to ameliorate the hardships of economically poor workmen who were exposed to risks in work, or occupational hazards by providing a cheaper and quicker machinery for compensating them with pecuniary benefits. With the progress of times the concept impelled the courts, by and large, to make stretched constructions without violating the fundamental principles in order to advance the above object. Looking at it from the above angle, the object of the legislature in providing Section 12 in the Act is to safeguard the right to compensation when the employer delegates the work to another person.
11. We will now proceed to consider in what manner the words "business" and "ordinarily" in Section 12 of the Act should be understood.
12. Section 3 of the Act imposes a liability on the employer to pay compensation in cases where personal injury is caused to a workman by accident arising out of and in the course of the employment. Section 12 of the Act has, in effect, stretched the contours of the word "employer" wider as to include the person contracting with another person for carrying out the work of the former. In such cases, the provision enjoins that the principal shall stand substituted as the employer. This is achieved by the words 'where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer". The principal may have any claim for contribution from his contractor or delegatee, but that can be dealt with as between them separately. The victim or his dependents are not to be involved in such disputes. This much can easily be discerned from the section.
13. The meaning of the two crucial words in Section 12 has to be understood in the above context. We do not think that the word "business" in the section need be restricted to what is synonymous with trade. The use of the conjunction "or" should be understood as disjunctive for covering totally different areas unconnected with "trade'. A reference to the Dictionary would reveal that the word "business" has different shades of meanings. Among them the most suitable in the present context is that which "The Oxford Advanced Learners Dictionary of Current English" has given as its third meaning: "Task, duty, concern or undertaking to do a work". Some succinct illustrations have also been given in the said dictionary to drive the meaning home. They are: "It is a teacher's business to help his pupils; I still make it my business to see that money is paid promptly; that is no business of yours". In none of the illustrations the word "business" is used to denote anything connected with trade or commerce. We think that, the word business used in Section 12 of the Act has been intended to convey the meaning as the work or task undertaken by the person concerned which are not restricted to trade or commercial work alone. Hence the interpretation given to the words "trade or business" appearing in Article 19 of the Constitution, or in the Rent Control Law is not apposite in the context of Section 12 of the Act. We may observe with great respect that the Division Bench of this Court in Travancore Devaswom Board v. Prushothaman (1989-II-LLJ-114), has not adopted any principle in conflict with the above view.
14. In Bata Shoe Company v. Union of India AIR 1954 Bombay 129 Gajendragadhkar, J. (as he then was) observed that the word "business" in its wider connotation may have more extensive meaning than the word "trade". His Lordship then quoted Jessel M.R. in Smith v. Anaerson 1880 15 Ch D 247 who stressed the meaning of business as "anything which occupies the time and attention and labour of a man for the purpose of profit". This wide meaning was followed in Public Works Dept. v. Commissioner 1981 Lab I.C. 498 by a Division Bench consisting of Dr. A.S. Anand, J. (as His Lordship then was) and I.K. Kptwal, J. in Workmen's Compensation cases. We are, therefore, emboldened by the above decisions in adopting the wide connotation for the word "business" in the present case.
15. Our next endeavour is to ascertain what the legislature meant by the word "ordinarily" in Section 12 of the Act. The word "ordinarily" is an elastic term. It is seen used in different statutes. The word has different shades of meaning in different contexts (vide Kailsdh Chandra v. Union of India (1961-II-LLJ-369) (SC). If it is used for referring to jurisdictional aspects it may mean "in large majority of cases but not invariably". When the word is used for referring to residential qualification it may sometimes include even temporary residence. But the word "ordinarily" is employed in Section 12 of the Act for a different connotation. That has to be understood in the background of the preceding portion in the section wherein execution of the work carried out through any other person contracted by the principal for this purpose is mentioned. What the principal would have done if he has not contracted with another person to carry out that work? He himself would have normally done that work or caused it to be done under his supervision. The word "Ordinarily" is used in Section 12 of the Act for projecting that idea. So the word "ordinarily" in Section 12 of the Act means "otherwise, normally". We cannot confer any other meaning to the term "ordinarily" as it appears in the section. We did not find anything contrary to the above legal position in the decision of the Division Bench of this Court in Vijayaraghavan v. Velu (1973 -I-LLJ-490).
16. Learned counsel for the appellant lastly contended that as the soil was sold to the second respondent, appellant had lost any ownership thereof and hence he cannot be made liable. What was sold by the appellant was only the soil and not the land. As long as the soil was not separated and transported, it remained as part of the land. The work involved in transforming land into soil must necessarily have been done when the ownership and title of the land remained with the appellant. So the appellant cannot disclaim liability in that line either.
When the legal position is understood thus, we are of the view that appellant is the employer vis-a-
vis the victims, as per Section 12 of the Act. Appellant is therefore liable to pay the compensation due under the Act to the claimants. Accordingly, we dismiss the appeals.