P L D 1953 Lahore 29 (PLP)

S. Abdul Rashid for Respondent (1). KAYANI, J.‑‑On 28th of March 1949 one Allah Bakhsh, who was employed by Shamas Din, a contractor, for painting the casing of electric fans in the Civil Surgeon's house at Sheikhupura, fell from a ladder and lost his life. His minor children, Muhammad Younas and Kaniz Fatima, made an application under the Work men's Compensation Act, claiming Rs. 4,900 on the basis that the monthly wages of the deceased were Rs. 120. The respondent Shamas Din contractor filed a written state ment in which he stated broadly that the facts of the case did not attract the provisions of the Workmen's Compensation Act, and raised certain other objections. During arguments his counsel objected that clause (viii) (a) of the Second Schedule was not attracted because the height of the building was less than twenty feet, but this objection was overruled by the learned Commissioner inasmuch as it had not been raised earlier in the pleas. The Commissioner, however, held that the compensation to which the applicant were entitled was Rs. 3,500. Two points were raised in appeal. The first was that there was no legal evidence upon which the Commissioner could base his finding that the height of the building was twenty feet or more. The second was that the painting of the casing of the fans did not amount to a repair of the building. Both objections are based on the language of the Act. Under section 2 clause (1) (n) of the Act, `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‑ "(ii) employed on monthly wages not exceeding four hundred rupees, in any such capacity as is specified in Schedule II." Schedule II states in clause (viii) (a) that a person is a workman within the meaning of section 2 (1) (n), who is employed in the construction, repair or demolition of any building which is designed to be or is or has been more than one storey in height above the ground or twenty feet or more from the ground level to the apex of the roof. The learned Commissioner relied on a copy of the inquest report prepared by an Assistant Sub‑Inspector when the death of Allah Bakhsh was reported to him, mentioning casually in that report that the height of the roof "appeared to be twenty feet". In evidence he was not asked if he had actually measured the height, and it would seem that the finding that the height was twenty feet is based on evidence that is not only insufficient but also illegal. It was argued, however, that the burden of proving that Allah Bakhsh was not a workman was on the respondent, and for this purpose reliance was placed on Ebrahim Haji Jusab v. Jainibi Anuddin (A I R 1933 Bom. 270) where it was held, upon a question whether the employment of a certain workman was of a casual nature, that "the onus 9n such cases would be on the employer to prove the condition which is necessary for the purpose of excluding a person from the category of a workman, and it has to be shown that the workman's employment was of a casual nature". This observation however, relates to the parenthetical clause which excludes a person from the category of a workman and if any person relies on the exception in the parenthetical clause, it is for him to prove it. Other matters in the definition of the term` "workman" have to be proved by the person asserting them, if it is denied that the person in respect of whom the application was made was a workman. That the respondent did not accept Allah Bakhsh to be a workman is clear from the denial in the written statement. It is unfortunate, however, that the learned Commissioner did not record the statements of the parties to elicit from them what exactly they were relying upon. If the burden of proof had been on the respondent, then, since he did not prove that the building was twenty feet in height, he must fail. The burden, however, should be on the applicants and, since they had no opportunity of proving that the height of the roof was twenty feet, it will not be proper to decide the case on the present record. As regards the second objection, it appears to me that a fan is a part of the installations of a house, that, consequently, it should be included in a "building" and that the painting of the casing of a fan would amount to repairs within the meaning of the Schedule. On the first point, I find it necessary to obtain a report from the learned Commissioner as to the height of the building from the ground level to the apex of the roof. I direct him to execute the measurements under his own supervision and in the presence of the parties and to send a report within three weeks from the date on which he receives this order. The parties have been directed to appear before him on the 25th of February 1952. This is in continuation of my order of the 4th February 1952. The Commissioner has now executed measurements on the outside of the building and has found that the height of the roof of the verandah is 14 feet 6 inches from the ground and that the height of the roof of the drawing‑room from the roof of the verandah is 6 feet inch. The total is thus 20 feet 61 inches. It is also stated that the plinth level is a foot and a half above the ground level and it was argued that this should be deducted from the height of the roof. I do not, however, think that this would be a correct interpretation of the language of clause (viii) (a) of the Second Schedule which requires that the height should be 20 feet or more from the ground level to the apex of the roof. The ground level should be the level of the ground surrounding the building and not of the floor after the level has been raised from the ground. If the plinth level is raised to twenty feet above the ground and then a room only ten feet in height is erected over it, the risk to which the workman employed on the roof would be exposed would be the risk of a man who is thirty feet above the ground level and not merely ten feet. I, therefore, hold that the deceased was a workman under the Act. The appeal is dismissed with costs. A. H. Appeal dismissed.