Girdhari Lal Sharma vs ELDECO Housing and Industries Ltd.

N.K. Mehrotra, J.—This is an appeal u/s 30 of the Workmen''s Compensation Act, 1923 against the judgment and order dated 16.6.2001, passed by the Workmen Compensation Commissioner/Deputy Labour Commissioner, Lucknow Region, Lucknow in W.C. Case No. 19 of 1997, Girdhari Lal Sharma v. Managing Director, M/s. ELDECO Housing and Industries Ltd.

Girdhari Lal Sharma was a piece rate contractor engaged by the Respondent and he was earning Rs. 2,600 average monthly income from the work given by the Respondent. When he was working on an electric pole, he was shocked by the electricity current and ultimately he became paralysed. He filed a petition for compensation. The learned Commissioner found that he is not a workman employed by the Respondent but even then since he was contractor engaged by the Respondent and since he has become permanently paralysed, he awarded a sum of Rs. 30,000 as compensation. It is against this order, Girdhari Lal Sharma has preferred this appeal.

I have heard the learned Counsel for the parties. The only question involved in this appeal is that whether the claimant is workman as defined u/s 2(1)(n) of the Workmen''s Compensation Act or he is a contractor engaged for work at piece rate and not covered under the definition of workmen.

Section 2(n) of the Workmen Compensation Act is as follows :

Section 2(1)(n).-''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 :

(i) A railway servant as defined in Section 3 of the Indian Railways Act, 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 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 the Union); 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.

Learned Counsel for the Appellant has referred Schedule II of the aforesaid Act and he has placed reliance on category shown at item No. XXXI in Schedule II : "XXXI.-Employed in the maintenance, repair or renewal of electrical fittings in any building.

In support of his contention, the learned Counsel for the Appellant has also referred Dharangadhara Chemical Works Ltd. Vs. State of Saurashtra, , Chintaman Rao and Another Vs. The State of Madhya Pradesh, Besides, these two decisions, the Appellant has also referred Shot v. J. W. Handerson Ltd. 1946 AC 24 (HL)(As per Lord Thankerton) which is followed in the case of State of Uttar Pradesh and Another Vs. Audh Narain Singh and Another, , State of Assam v. Kanak Chand Dutta AIR 1967 SC 884, State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, and State of U.P. and Others Vs. Chandra Prakash Pandey and Others Etc.,

A perusal of all categories in Schedule II goes to show that word ''employed'' has been used in all categories. Therefore, the provision of Section 2(1)(n) should be read alongwith the language used in Schedule II. So the word ''employed'' will be taken to be ''employed'' on a monthly wages. It is settled in the catena of cases decided by the Hon''ble Supreme Court that ''employed'' means not ''engaged'' but employed on a ''contract of service''.

The decision of the Hon''ble Supreme Court in Dharam Ghandra Chemicals Work''s case has been followed in Chintaman Rao and Anr. v. State of Madhya Pradesh (supra) in which the word ''employed'' has been interpreted. The relevant portion of the aforesaid case is as follows : "The concept of employment involves three ingredients : (1) employer, (2) employee, and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision. Can it be said that a Sattedar is employed by the management of the factory to serve under it? There is well understood distinction between a contractor and a workman and between contract for service and contract of service. In Stroud''s Judicial Dictionary (Third Edition, Volume 1, Page 616) the distinction between a contractor and a workman is brought out in bold relief in the following manner : "Of course every person who makes an agreement with another for the doing of work is a contractor, in a general sense; but as used in Workmen''s Compensation Act; and "workman" have come to have a more restricted and distinctive meaning," and "contractor" means ''one who makes an agreement to carry out certain work specified, but not on a contract of service."

In view of the aforesaid settled position, it is clear that there must be a contract of service. In the case cited by the learned Counsel for the Appellant, there must be a fourth ingredient to establish the relationship of master and servant (i) right to select a person; (ii) control and supervision over the workmen; (iii) payment of wages or remuneration; and (iv) right to suspend or remove a person from employment.

In the counter-affidavit, the Respondent has filed certain documents. Annexure-2 is the statement of Girdhari Lal Sharma himself recorded by the Commissioner. The Respondent had also filed certain bills on the basis of which the payment was made to the Appellant. These bills also show that the payments were made twice or thrice in a month. Annexure-2 is a final running bill. All these documents coupled with the statement of Girdhari Lal Sharma placed before the Commissioner establishes a fact that there was no relationship of master and servant and the Appellant was not employed but he was a piece rate contractor. Therefore, there is no ground to interfere into the finding recorded by the Commissioner that the Appellant was not a workman as defined u/s 2(1)(n) of the Workmen Compensation Act.

In view of the aforesaid finding, the appeal has no force and is liable to be dismissed. The appeal is dismissed.