Kerala High Court
Kerala Balagram vs Kochumon Alias Abraham on 23 October, 1997
Equivalent citations: 1998ACJ996, (1998)ILLJ744KER
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT Abdul Gafoor, J.
1. The Opposite Party/Employer in a Workmen Compensation Case has approached this Court with this Appeal challenging the order awarding compensation to the Workman-respondent herein. The former contends that the latter was not a 'workman' in so far as he was not engaged in the trade or business of the former to fall under the definition of the term in Section 2(1)(n) of the Workmen's Compensation Act, 1923 and in so far as he was employed in a casual nature. It is also contended that the Tribunal had cast a burden to prove the negative fact on the appellant. The three questions of law on which the respondent is put on notice in this appeal relate to the above three aspects.
2. Certain facts are admitted. Agriculture is one among the operations conducted by the appellant-society apart from managing orphanage, schools, vocational training centres, dairy farming, tailoring institute, printing institute etc. In connection with the agricultural operations of the appellant the paddy harvested had to be sifted on May 11, 1993 and for that purpose a sifting machine was arranged and the sifting was conducted on May 11, 1993. There occurred an accident on the said day during the course of the sifting and as a result of it the left hand of the respondent got crushed in the machine and he sustained severe injuries resulting in amputation of two fingers. The respondent had been taken to the hospital and an amount of Rs. 1,000/- had been paid to the respondent towards hospital expenses. The respondent claimed compensation, and the Commissioner for Workmen Compensation awarded an amount of Rs. 36,028/- to the respondent. It is based on these admitted facts the questions of law raised in this appeal have to be answered.
3. The appellant contends that the agricultural work of a registered charitable society solely for the purpose of feeding orphans will not come within the purview of the words 'trade' or 'business' in Section 2(1)(n) of the Act. The main part of Section 2(1)(n) reads as follows:
"'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)...".
It is submitted that the appellant is a charitable society and therefore conducts no business or trade and it is not with any profit motive. Therefore, the respondent cannot be said to be a workman to fall within the ambit of the definition as stated above. Unless a profit motive is there, the appellant cannot be said to be carrying on any trade or business, the counsel contends. In this respect, the ruling of a Division Bench of this Court reported in Dr. M.M. Hassan v. T.C. Mohammed 1994 (1) KLJ 479 is relied on. That ruling is with respect to the meaning ascribed to these words in Kerala Buildings (Lease and Rent Control) Act, 1965 wherein it had been held that "'business' in the second proviso to Section 11(3) of the Act must be given a restrictive interpretation confining it to purely commercial activity like buying and selling and excluding from its purview the practice of 'profession' which is purely personal, depending on the specialised skill or ability of the individual in a particular field of learning". The words 'trade or business' are used in several statutes like fiscal statutes, rent laws and labour laws, apart from Article 19(1)(g) of the Constitution of India, The meaning ascribed to such words shall always be with reference to the context and with respect to the content of the statute itself. Therefore the meaning that is ascribed in one statute cannot be taken to interpret the very same words in another statute legislated with altogether a different intention and object. The said words in the fiscal statutes or rent laws cannot have a similar meaning when employed in any welfare legislation like Workmen's Compensation Act. So, the meaning as interpreted by this Court in the said ruling cannot be relied on for the aid of the appellant. On the other hand, another Division Bench of this Court in the decision reported in Payyannur Education Society v. Narayani (1996-III-LLJ (Suppl)- 1212) had occasion to consider the meaning of the word 'business' employed in Section 12 of the Workmen's Compensation Act, 1923. This Court in paragraph 13 thereof held as follows at p.1214:
"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 hold 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 destitution, 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. Purushothaman (1989-II-LLJ-114) has not adopted any principle in conflict with the above view".
This Court arrived at the above finding, also after considering the decision in Dr. M.M. Hassan v. T.C. Mohammed (supra). It is true that in paragraph 14 of the said judgment the Division Bench had referred the decision in Bata Shoe Company v. Union of India AIR 1954 Bom. 129 and Smith v. Anderson 1980 15 Ch.D 247, where the meaning of the word 'business' was construed as "anything which occupies the tune and attention and labour of a man for the purpose of profit". On its basis, the counsel contends that the purpose of profit is an essential and integral part of the business whereas there was no profit motive for the appellant in the agricultural operation and that it cannot be taken that the appellant was conducting a business. It is to be noted that the Division Bench in Payyannur Educational Society's case (supra) did not hold that the profit motive is an essential feature to come within the word 'business' employed in Workmen's Compensation Act, even though, this Court has noted the meaning of the said word as understood in Smith v. Anderson (supra) and other cases. Moreover, the Payyannur Educational Society, the appellant in that case considered by the Division Bench, is also a charitable society engaged in education and not in making profit.
4. Even if profit motive must be there, to consider a venture as 'business', even then the appellant cannot escape from the liability. As is seen from Schedule II the workmen engaged in farming and agricultural operations come within the definition of the 'workman'. The appellant society is also conducting agricultural operations and fanning. Even if private individual or society conducts agricultural operation for in-house use and consumption and not for the purpose of sale, there will be a profit element in the conduct of agriculture. No society or individual will, under normal circumstances, without expecting a surplus, will invest funds for agricultural operations. The appellant society conducting a destitute home is conducting agricultural operation, because it is more profitable to produce paddy by itself rather than purchasing it from outside for feeding the children and with an intention that by investing funds in the agriculture it can produce paddy worth more than the amount invested. That itself is sufficient profit motive. Therefore, the agricultural operations of the appellant come within the term 'business' employed in Section 2(1)(n) of the Act. Merely because the nature of the appellant society is charitable, it will not get absolved from the liability under the Act to compensate the workman who had met with an accident during the course of employment in connection with its business. The first question of law is therefore answered against the appellant.
5. It is further contended by the appellant that admittedly by respondent the engagement was only for 45 minutes and therefore the respondent "was employed in a casual nature", and therefore will not come within the Section 2(1)(n) of the Act. Section 2(1)(n) as extracted above contains an exclusion clause in the expression within brackets. Therefore, a workman whose employment is of a casual nature will not come within the term, if he is not engaged for the purpose of the employer's trade or business. Answering the first question of law, we had found that the employment in which the workman was engaged while he met with an accident, was for the purpose of the employer's business. Even if the accident occurs when the employment is of a casual nature in connection with the business of the employer, the exclusion clause does not apply. So, even if the employment of the respondent is of casual nature, he will not come within the exclusion clause contained in the definition.
6. Even otherwise, his employment is not of a casual nature. The agricultural operation is being conducted by the appellant is admitted. That has to be done periodically. Certain operations had to be done only once in a year. Even then, that is a part of the operation. Therefore, for that operation, a person has to be employed. Such employment cannot be presumed to be of casual nature, because employment is not merely depending upon chances. A Division Bench of this Court in the decision reported in Kochu Velu v. Joseph (1980-II-LLJ-220) had examined the different facets of the issue and held that the employment is not of a casual nature at all when there is regularity in the employment. It was held that, "there may be regular employment of persons in employment of a casual nature, casual employment of persons in an employment of casual nature, regular employment of persons in employment of regular nature and casual employment of persons in employment of regular nature. The Section takes in casual or regular employment of persons in employment of regular nature. In other words, we need only consider whether employment is of a nature which is not casual in character".
7. The Madras High Court had considered a case similar to the one on hand in T.N. Narayanaswamy v. Pattusamy (1997-II-LLJ-23), inj respect of a workman engaged in moving paddy in a paddy thrashing machine. A contention was raised there that the workman was only a casual labourer for agricultural operation and therefore Section 2(1)(n) was not attracted. Dealing with the issue, the Madras High Court held that, at p. 25:
"Section 2(1)(n) of the Workmen's Compensation Act does not exclude workers who have been employed in the casual manner, from the definition of the word "workmen". 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 is a workman as per the above definition. The work of the appellant cannot be considered to be of a casual nature since grinding or hulling paddy is a regular work to remove the husk".
The facts in that case are more or less similar to those in this case. On its basis, the employment for sifting operation is a regular employment though it occurs at a particular interval alone. So, it cannot be stated that the respondent's employment was of casual nature. The second question of law raised in that regard is also answered against the appellant.
8. The third question of law raised by the appellant is "whether the burden to prove the negative fact of non-employment of the respondent is on the appellant". In this respect it is contended that the appellant was called upon to prove that the respondent was not employed under the appellant. That is a negative burden cast on the appellant, the counsel contends. This also cannot be accepted because it was an admitted fact that the accident occurred and as a result of that the respondent sustained injuries. It is also an admitted fact that the accident occurred while sifting operation was being conducted in the premises of the appellant in respect of the paddy cultivated and harvested in its property. Thus, it had been proved that the accident occurred while the work was being conducted for and on behalf of the appellant. In such circumstances, if the appellant disputes the liability to pay compensation, it was upon the appellant to prove that it had not engaged the respondent workman. As A.W. 1, the respondent had categorically stated that he had been engaged by the appellant in 1992 also for the same work and that he did not know to whom the sifting machine belonged to or from where it was brought. In cross-examination he had categorically stated that on the relevant day he had been called for the work of sifting by an employee of the appellant society. R.W.2 had deposed that the respondent had been engaged by Sri. T.U.Kurian to whom the sifting machine belonged and that the respondent had been employed on a prior occasion when the very same machine belonged to Sri. T.U.Kurian had been engaged for sifting. In such circumstances, if the appellant had been serious enough in contending so, should have examined the said T.U.Kurian to prove that fact. But, the appellant did not choose to examine him. When the accident and injury had been admitted and when it is proved that it had taken place while the work was being conducted for appellant, it was incumbent on the appellant to examine Sri. T.U.Kurian and prove that the appellant had not engaged the respondent. That is a burden cast on the appellant. Having proved the accident and injury sustained during the work conducted on behalf of the appellant, if the liability is disputed, it is incumbent on the appellant to prove the fact regarding employment. That cannot be said to be a negative burden unnecessarily cast on the appellant as contended. So, the third question of law is also answered against the appellant.
9. Though no question of law is raised, it is contended by the appellant that the respondent was not employed as is specified in Schedule II of the Act. Admittedly by the appellant, the work that was being conducted is sifting of paddy. That will necessarily come within employed in farming by tractors or other contrivances driven by steam or other mechanical power or by electricity as mentioned in item (xxix) of the Schedule II of the Act as it stood at the material time or item (xxix) added to Schedule II by the notification issued by the State Government. Item (xxxii) (I) added to the 2nd Schedule as per the State Government notification takes in person "employed in cultivation of land". It is contended by the appellant that sifting will not come under 'farming' or 'cultivation', and therefore the respondent is not employed as is specified in Schedule II. He submits that farming and cultivation will be something connected with growing of crops in the field and not after harvesting. The cultivation or farming is for the purpose of raising crops and to consume the same after harvesting, it is not for simple growing of the plants concerned. The High Court of Madras had occasion to consider similar issue in connection with employment in farming by tractors or other contrivances, in the decision reported in T.N.Narayanaswamy v. Pattusamy (supra). The Court held as follows at pp.25-26:
"Regarding the contention of the learned counsel appearing for the appellant that the petitioner being an agriculturist, he cannot be considered as a workman and agriculturists are not mentioned in Schedule II is not convincing since Clause (xxix) of Schedule II makes any person employed in farming by tractors or other contrivances driven by steam or other mechanical power or electricity as a workman. Similarly, Clause (xxxviii) which makes any person employed in cultivation of land or rearing or maintenance of livestock or forest operations or fishing in which on any one day of the preceding twelve months more than twenty one persons have been employed, also to be considered as a 'workman'. Therefore, the petitioner who was engaged in the grinding machine in the field of the Opposite party cannot be excluded from the definition of the word "Workman"."
Schedule II applicable to this case does not concern with employment of 25 persons or 12 months as stipulated in the Schedule as applicable to the State of Tamil Nadu. The Madras High Court has thus found a person engaged in the grinding machine in the field as a workman being employed in cultivation of the land. There is no reason not to follow the said view. Going by the respective entry as mentioned above in Schedule II, the respondent-workman herein was employed at the time of the accident in connection with the farming and cultivation of the land held by the appellant. The amount deposited will get adjusted against the claim.
In the above circumstances, there is no reason for interference of the order impugned. Appeal fails and it is dismissed, in the circumstances of the case without any order as to costs.