P L D 1971 Dacca 200 (PLP)

The only witness examined on behalf of the opposite‑prty appellant is Mr. Habibur Rahman, Executive Engineer, E. P. WAPDA, Chandpur. He stated that he did not know the deceased labourer Abdur Rafique and he did not employ him as labourer for loading and unloading bricks. He, however, admitted that the truck No. EBT 1710 belonged to E. P. WAPDA and Abdul Hannan was its driver at the relevant time. He further admitted in his examination‑in‑chief that Mr. A. Rab Sectional Officer, E.P. WAPDA reported to him on 5‑6‑1967 that a labourer fell down from their truck and was killed instantaneously. This witness further stated that he instructed the S. D. O., Mr. A. Samad to report the matter to the police and a case was ultimately started against the driver Abdul Hannan who pleaded guilty, and was convicted in that case. After his conviction, this witness discharged him from the service. He, however, asserted that deceased Abdur Rafique was not a labourer of the E. P. WAPDA. What he meant by this, was difficult to understand because in the very next breath he stated that labourers were hired by Sectional Officers and he prepares bill in muster roll forms and the bill was passed by the S. D. O., WAPDA and the payment was made by the Sectional Officer. This witness possibly was anxious to keep himself at a safe distance from this incident and the case as he immediately stated thereafter that the Executive Engineer had nothing to do in the matter and he does not know anybody. He, however, admitted that after the receipt of the pleader's notice he searched for the muster roll but could not find the name of Abdur Rafique therein. He admitted, however, that the Sectional Officer reported to him that the deceased was a labourer. This witness proved two exhibits; Exh. A, a muster roll of the Sectional Officer of the relevant period and Exh. B the register of the staff under work charged head. In cross‑examination he proved the copy of the report which was submitted to him by the Sectional Officer intimating about the death of Abdur Rafique. In cross- examination this witness stated that it was not a fact that the deceased was their labourer and to avoid payment of compen sation they have manufactured the papers. The learned Commissioner, Workmen's Compensation after considering the evidence of the witnesses found that there is no reason to disbelieve the testimony of P. Ws. 1 and 2 and found that Exh. 1 clearly showed that the labourer Abdur Rafique who fell down from the truck and died instantaneously was working in the WAPDA on 5‑6‑1967. The trial Court further found that according to the testimony of opposite‑parties‑respondents' witness No. 1 it was Mr. A. Rab who was in charge of the employees and paying the labourers. The Executive Engineer was not maintaining the register, preparing the bills or making pay ments to the labourers and as such he was not competent to say whether the deceased was a labourer of the E. P. WAPDA. It is interesting to notice that neither the Sub‑Divisional Officer nor the Sectional Officer Mr. A. Rab was examined in this case. The trial Court clearly found that the materials proved that deceased Abdur Rafique was an employee of the E. P. WAPDA at the time of his death and the E. P. WAPDA was liable to pay compensation for his death. The trial Court took the view that Rs. 3 was the daily wages and as the labourer used to be paid for works on Sunday, so the monthly calculation of the wages would come to Rs. 90 and according to the Schedule IV of the W. C. Act, the heirs of the deceased were, therefore, entitled to a compensation of Rs.4,000 which the learned Commissioner, Workmen's Compensation directed to be paid to the four petitioners, that is to say, the parents and the minor brother and sister in equal shares. This order of the learned Commissioner, Workmen's Compen sation has been challenged in this appeal by the opposite‑party No. 2 appellant before us. Mr. Sultan Ahmad, the learned Advocate appearing on behalf of the appellant has firstly urged that the trial Court erred in law in not holding that the application for compensation was not entertainable for want of notice and claim as required under sec tion 10 of the W. C. Act. The operative part of clause (i) of section 10 of the W. C. Act runs as follows:‑ "No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within one year of the occurrence of the accident or, in case of death, within one year from the date of death:" Clause (b) of the second proviso of this section which is relevant in this case runs as follows:‑ "Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim‑ (b) if the employer or any one of several employers or any person responsible to the employer (for the Management of any branch of the trade or business in which the injured workman was employed) had knowledge of the accident from any other source at or about the time when it occurred." This clause clearly shows that the bar of section 10 of the W. C. Act will not be operative if the employer or his representative or his authorised agent had the knowledge of the accident from any other source on or about the time of the occurrence. The Executive Engineer opposite‑party‑appellant's witness clearly stated in his evidence that Mr. A. Rab, Sectional Officer represented to him on the very date of the occurrence, that is to say, on 5‑6‑1967, that a labourer fell down from the truck and was killed. In view of this clear and unequivocal evidence it does not appear reasonable for the employer's learned Advocate to say that there is a bar against entertainment of the claim of compensation of the worker in this case. It is plain from the facts that the authorised officer of the employer had knowledge of the accident immediately after the same had occurred. The next proviso of this section 10 of the W. C. Act also makes it clear that the want of notice may be waived by the learned Commissioner for compensation if appropriate explanation is placed before him at the time of the hearing of the matter. In this case no objection was taken as to the want of notice under section 10 of the W. C. Act before the trial Court and as such the same for very substantial reasons cannot be allowed to be raised, in this appeal. The next point urged by Mr. Sultan Ahmad was that the documents marked Exhs. A, B and 1 were inadmissible and should not have been considered by the trial Court as they were not legally proved. Out of these documents Exhs. A and B were brought before the Court by his client opposite‑party No. 2 appellant and it was sought to be tendered in evidence by opposite‑party‑appellant's witness No. 1 in order to show that the muster roll and the register did not include the name of the deceased Abdur Rafique and as such he was not an employee of the E. P. WAPDA. Under section 30 of the W. C. Act only a point which is a substantial question of law can be raised in such an appeal. See the case of Muslim Cotton Mills (Pakistan Industrial Development Corporation) v. Din Islam (P L D 1959 Dacca 599), and the case of Adam Limited v. Unisa Khatoon and others (P L D 1961 Dacca 550). It can hardly be said that defect in the mode of proving a document is a question of this nature which can be allowed to be raised as a substantial question of C law, particularly at the instance of a party who tendered much) obedience. Apart from that on merit, we do not find any substance in this contention. Exhs. A and B were sought to be proved by opposite‑party‑appellant's witness No. 1 Mr. Habibur Rahman, the Executive Engineer. He stated in his cross‑examination that Exh. A was written by Sectional Officer Mr. A. Rab whose handwriting he knew and Exh. B was the register of the office showing the strength of staff' under work charge head. It is obvious that this exhibit was maintained in the due course in his office. In view of this statement we do not find that there was any defect in the mode of proving the documents. It should however be remembered that the mode or proof has nothing to do with the question of belief or disbelief or the authenticity or the lack of it. Furthermore the trial Court did not base its decision on these two documents, and it is the clear finding of the trial Court that it was quite likely that the correct muster roll was not produced in Court as the opposite‑party‑appellant's witness No. I was apprehending that he might be compelled to pay the compen sation from his personal account. It is clear, therefore, that the exclusion of these two documents did not alter the result of the case at all. With regard to Exh. 1 the same conclusions are irresistible. Even if we exclude this exhibit from our consideration the fact remains that opposite‑party‑appellant's witness No. 1 stated in his examination‑in‑chief that a report was made to him by the Sectional Officer intimating about the death of the deceased labourer on 5‑6‑1967. In view of the above, the contention of the learned Advocate for the appellant does not appear to have any substance and as such the same is rejected. The next point that was raised was that the deceased Abdur Rafique does not come within the definition of a workman as mentioned in section 2(1)(n) of the W. C. Act as his employment was of a casual nature. Moreover he was not employed on the basis of monthly payment. With regard to the contention raised on this point it is necessary to examine the definition clause relating to a workman. Section 2(1)(n) of the W. C. Act runs as follows‑ " 'Workman' means any person (other than a person whose employment is of a casual nature and who is employed other wise than for the purposes of the employer's trade or business) who is‑ (i) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 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 (five) hundred 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 Pakistan); 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." The contention of the learned Advocate for the appellant is that if a person has a casual employment, then he cannot come within this definition. After reading the opening clause carefully it becomes clear that the contention has no substance. In order to exclude an individual from the category of a workman he must suffer from two defects, that is to say, he must be, firstly, a person whose employment is of a casual nature, and, secondly, that his employment should be for a purpose different from the employer's trade or business. In our opinion, the word "and" in c this clause is conjunctive and cannot be treated disjunctively, that is to say, the existence of one of the factors will not exclude a person from the category of a worker; it must be shown that the person's employment was casual in nature and the same was other than employer's trade or business. In this connection it may be useful to refer to a decision of their Lordships of the House of Lords in the case of Manton Pauper) v. Cantwell (1920 A G 781). In this case a farmer employed a casual labourer to thatch the roof of his farmhouse. He lived in a small farmhouse. The labourer fell from the roof and sustained injuries and ultimately died as a result of those injuries. A question arose in that case whether such a labourer was a workman within the definition of section 13 of the Workmen's Compensation Act, 1906. Section 13 of this Act, it will appear, is similarly worked. The material passage of the said section is as follows:‑ "'Workman' does not include any person employed otherwise than by way of manual labour whose remuneration exceeds two hundred and fifty pounds a year, or 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." The latter part it will appear is almost similar to the opening words of clause (n) of section 2(1) of W. C. Act, 1923. It was accepted in this case that it was a common practice for farmers in that district to do their own thatching and it was obvious that the labourers' works were of a casual nature. In spite of this tae learned Law Lords clearly found the labourer as a workman under this definition and upheld the order for awarding the compensation. We further find that this view that we are taking is clearly supported by the decision of Adam Limited v. Unisa Khatoon and others, Hamoodur Rahman, J. (as his Lordship then was), with whom Idris, J. concurred, observed as follows:‑ "In our opinion, the two conditions, namely, employment of a casual nature and employment otherwise than for the purposes of employers' trade or business must both exist before the exclusion can be operative." The same view has also been taken in the case of Bachia Mistri v. Shanti (A I R 1946 All. 473), and also in the observations of Aftab Flour & Allied Industries Ltd. v. Mst. Nasim Akhtar (P L D 1964 Kar. 406). It is obvious, therefore, that the labourer even though his employment can be termed as of casual nature was still a workman within this definition as the purpose for which he was employed was for the employers' business. The last point that was urged by the learned Advocate for the appellant is that the definition of a workman as given in clause (n) of section 2(1) of the W. C. Act, 1923, required, that a workman has to be one who is "employed on monthly wages", and as the deceased labourer used to be paid on the basis of daily wages, so he could not be termed as a worker within the definition of this clause. I must say that at the first reading we were somewhat impressed by this contention. A thorough reading of this clause, however, clearly exposes the hollowness of this contention. Section 5 of the W. C. Act provides that for the purpose of this Act monthly wages would mean the amount of wages deemed to be payable for a month's service irrespective of the fact whether the wages are payable by the month or whatever other period or by piece rates and the same is to be calculated according to three tables as contained in that section. Reading the Act as a whole it becomes abundantly clear that the expression "employed on monthly wages not exceeding (five) hundred rupees, in any such capacity as is specified in Schedule II", clearly means employed on wages which do not exceed Rs. 500 a month. The real purpose of this clause is merely to fix an upper limit of the income and not the mode of payment of such wages. In our opinion, it does not matter at all for the application of this Act whether such wages are payable on an hourly basis, monthly basis or weekly basis. What was considered to be important and applicable in terms of this clause was the limit of the wages as Rs. 500 per month and if the sum exceeds rupees five hundred on calculation for the month, then the person concerned could not enjoy the benefit of a workman as contemplated under this section. Beaumont, C. J., with whom Sen, J. concurred in the case of Ellerman's City & Hall Lines v. Asis Thomas ( A I R 1938 Bom. 110), while discussing the import of this clause observed as follows:‑ "It is said that this workman was not employed on monthly wages, but in my opinion the reference to employment on monthly wages in section 2(1), sub‑clause (n), means employ ment at wages which do not exceed an average of Rs. 300 a month. It seems to me quite impossible, reading this Act as a whole, to say that it was limited to workmen who are employed by the month so that it would not include workmen employed by the day or by the week or by the year." The same view has also been taken in the case of Cooling Equipment Co. Ltd. v. Mst. Zainab Bibi and another (A I R 1943 Lah. 52), and in the case of Bachla Mistri v. Shanti. In view of the above, it is apparent that a labourer who is paid his wages on a daily or weekly basis can also be termed as a workman within the meaning of clause (n) of section 2(1) of the P W. C. Act, 1923. These are all the points that were raised in the appeal and we have found that there is no substance in any one of them. The result, therefore, is that this appeal is dismissed with costs and the cost we assess at rupees four hundred in all. Let the records of this case be sent down to the trial Court immediately. The connected rule which arises out of this appeal being F. M. A. No. 33 of 1969, has now become infructuous in view of the fact that the First Miscellaneous Appeal No. 33 of 1969 itself has been dismissed with costs. The Rule is accordingly discharged without any order as to costs. T. H. KHAN, J.‑I agree. Appeal dismissed.