P L D 1964 (W (PLP)

4. The short question for consideration, therefore, in this appeal is whether the deceased Ghulam Haider was rightly held to be a workman under the above‑mentioned provision of law. Mr. Afzal Nabi, the learned counsel for the appellant has urged that a casual worker is not covered by the definition of the workman under the Compensation Act and at any rate since the construction of the mill premises was not the business of the appellant's company it could not be held that the deceased was in the employment of the appellant for the purposes of his trade or business. In order to appreciate the argument of the learned counsel it would be useful to reproduce the definition of the workman in section 2(I)(n) of the Workmen's Compensation Act, 1923. It is in the following terms :‑ " `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 11390), 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 His Majesty's naval, military or air force ; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them." It will be noticed that a workman under the above‑mentioned definition is 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. On the plain reading of the language of this definition, it is perfectly clear that even a casual worker is covered by the definition, provided he was employed for the purposes of the employers trade or business. Mr. Afzal Nabi contended that a person whose employment is of a casual nature does not fall within the above‑mentioned defini tion. I have no hesitation in repelling this contention. This point was considered by me in Misc. Appeal No. 39/1960, decided on 16th April 1962. On this point it was observed by me as under :‑ A casual workman, if found to have been employed at the time of the accident for the purposes of the employer's trade or business, his case will clearly fall within the definition of `workman' under the Workmen's Compensation Act. This observation is supported by weighty decisions on this question. The word 'and' in the above‑mentioned definition between the phrases `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 used in a conjunctive sense, and not in disjunctive sense. The provisions of the English law also are almost identical. In Manton v. Cantwell 1920 AC 781‑786, In dealing with a cognate clause, the Lord Chancellor observed `that the meaning of the second part of the sentence was that if a man be employed for the purposes of the trade or business, the employer is liable even though the employment was of a casual nature'. It is, therefore, perfectly clear that even though a workman might have been employed casually, he would be deemed to be within the definition of `workman' if he was employed for the purposes of the employer's trade or business. This view also finds support in two Indian decisions in the case of Gyaniram v. Gangabai A I R 1957 M P 84 and Ghashiram v. Smt. Nannibal A I R 1960 M P

267. The appellant's counsel has not satisfied me that the view taken in the above‑mentioned case is not based on the correct interpreta tion of the definition under consideration.

5. The next contention of the appellant's counsel, that the deceased Ghulam Haider could not be considered to be employed for the purposes of the employer's trade or business because the construction in the mill was not the appellant's trade or business, has also not much force. The question that the employment oaf casual nature or an employer's trade or business for purposes of section 2 (1)(n) is essentially one of fact and not of law. It cannot be considered to be a substantial question of law and, therefore, it is not open to the appellant to contest the finding in appeal under section 30 of the Workmen's Compensation Act.

6. At any rate in order to hold whether the deceased was employed for the purposes of trade or business of the appellant, it was not at all necessary to prove that the construction of the mill was the business of the appellant‑company. In law what has to be seen in such cases is whether the construction of the mill was for the employer's trade or business or not. In Manton v. Cantwell (1920 A C 781) exactly similar question was under consideration. The House of Lords was considering a case of a workman who was employed by a farmer to thatch the roof of the farmhouse on the farm. The man fell of the roof and sustained injuries which caused his death. The question arose whether or not the person concerned was employed for the purposes of the employer's trade or business. On this point Lord Birkenhead, L. C. observed as under :‑ My Lords, what are the facts here 7 A farmer living in a modest steading, in the middle of his farm, is under the necessity of thatching the roof of his farmhouse. It is a very frequent practice in the neighborhood for the farmers to carry out this work themselves. The material which is used for the thatching is, of course, as everyone knows, a by‑product of that which is grown upon the farms ; it has itself a commercial value ; be that high or be it low, it could no doubt be disposed of by the farmer if he did not require it for his own purposes, but it is the habit, as the evidence before the County Court Judge abundantly established, for farmers in that neighborhood to do their own thatching, and it is necessary to observe very closely that it would not be possible to carry out the business of farming without the provision of either a farmhouse or some substituted premises. However small be the economy of the particular farm, however rudimentary the processes by which its business is conducted, some record at least must be preserved of them : in other words, it is hardly possible to conceive of the case of a farm in which at least some office work must not be carried on, and, as Mr. Scanlan in his very ingenious and clear argument was driven to admit, the only office which he could suggest in this case would be the farm house, the case of which we are now considering. The result therefore is that we find a man who is earning his living by the processes of agriculture, finding himself compelled by his own rustic arts to effect a reparation in the roof of the office which is necessary for his business, and without the decent convenience of which he could not carry out his business. He provides the raw material which is required for his premises by using a commodity, itself a subject of barter in agriculture, and which he could dispose of in such a manner if he did not require it for the purpose of restoring his dwelling house. He does not, as he has often done before and as many of his neighbors the local farmers did, carry out the repaires him self. He employs the deceased man to effect these repairs. My Lords, I am not able to conceive how the argument can be successfully put forward that a man who employs another in a task of this kind is not employing him for the purposes of his trade or business, and I reach hesitating to differ from all the Lords Justices in the Irish Court of Appeal but nevertheless quite clearly the conclusion that the deceased man was so engaged, that the decision of the County Court Judge upon this point, amounting as it did to a finding of fact, was right, and that the decision of the Irish Court of Appeal must be reversed. Similar questions were also considered in number of decisions of the Indian Jurisdiction. In T. N. Sitharama Reddiar v. A. Ayyaswami Gounder (A I R 1956 Mad. 212). A owned a few acres of dry land having a small well in his field. With a view to deepen this well, he engaged a band of diggers of whom B was one. A or his father supervised the work. He paid the diggers advance at 12 annas plus 1 measures of rice every day and supplied them with gun powder for dynamiting the rocks. During the opera tion, when dynamite was used for digging, B was injured and his right arm was amputated up to his elbow and lost three fingers. It was held by Ramaswami, J. that the injured person was a workman within the definition and was employed for the purpose of trade and business of the owner of the lands. In Hirjibhai Lakhamsibhai v. Damodar (A I R 1957 M P 49) a person employed in the construc tion of the godown for storing grain was held to be a workman. It was further held that the construction of the godown for storing grain being so vitally connected with the business of a grain merchant the mason employed in constructing it is a person employed for the purposes of the trade or business of the employer, and, therefore, a workman although his employment is casual. In Ghasiram Motiram Kulmi v. Smt. Nannibal Nathulal (A I R 1960 M P 267) a workman employed in the construction of a well for the purpose of the employer's business of agriculture on daily wages which did not exceed on average Rs. 400 a month, was held to be covered by the definition. In that case also the mason was employed for plastering the wall of a freshly dug up well, which was more than 20 feet. It was found that the workman concerned was employed in the making of an excavation within clause XVI of Schedule II and was covered by the defini tion of the workman in the above‑mentioned enactment.

7. Mr. Afzal Nabi, the learned counsel for the appellant in support of his contention has referred co a Bombay High Court decision in Rabla Muhammad Tahir v. G. I. P. Railway (A I R 1929 Bom. 179), which is a case of a Railway company and is clearly distinguishable. The case cited by the respondent's counsel is Jeethalal Manekjf Sharma v. Sardambal Ammal (A I R 1936 Mad. 941), is to the point and takes the same view which has already been discussed by me and need no further comments.

8. In the light of the above discussion, it is perfectly obvious that the learned Commissioner for Workmen's Compensation has decided the question under consideration on proper and correct construction of the definition of the workman under the Work men's Compensation Act. In the present case the construction of the Flour Mill was vital for carrying on the business of the Flour Mill by the appellant and the deceased who was employed for plastering the walls of the said mill was rightly held to be employed for the purposes of appellant's trade and business.

9. Accordingly I find no force in this appeal and dismiss it with costs. K. B. A. Appeal dismissed.