H.W. Dhabe, J.
1. This First Appeal is placed before us on a reference made by the learned single Judge to the Division Bench for consideration of the question whether a Starter employed by the Bombay Electric Supply and Transport (B.E.S.T.) Undertaking is a workman covered by Clause (2) of Schedule n of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'). Parties agree that since the above is the only question involved in this appeal, we can finally dispose of the appeal itself by our judgment
2. The facts are that the appellant was working as a Starter in the B.E.S.T. Undertaking during the relevant time. On the 13th June, 1981, at about 4.15 p.m. while he was boarding a bus to report for duty, he met with an accident as he slipped from the step of the exit door of the bus and fell down. As a result, he sustained a fracture on the left leg. He was removed to the K.E.M. Hospital for treatment. He thereafter got certificate of fitness on 26th November, 1981 and resumed his duty as a Starter in the B.E.S.T. Under taking on 28th November, 1981. He then filed an application under the provisions of the Act claiming half monthly wages for the period from 13th June, 1981 to 25th November, 1981 during which period he was unable to attend to his duties on account of temporary disablement
3. The respondents filed a written statement resisting the claim made by the appellant The principal plea raised by the respondents in their written statement was that the. appellant was not a workman within the meaning of the said expression given in Section 2(1)(n) of the Act. The learned Additional Commissioner for Workmen's Compensation, Bombay, who heard the matter, upheld the above plea raised on behalf of the respondents and therefore, having held that the appellant was not a workman within the meaning of Section 2(1)(n) of the Act, he dismissed the application of the appellant claiming half monthly wages from 13th June, 1981 to 25th November, 1981 during which period he was unable to attend to his duties on account of temporary disablement
4. Feeling aggrieved, the appellant preferred the instant First Appeal in this Court The said appeal was heard by the learned single Judge of this Court who by his judgment rendered on 2nd April, 1991, held that he was of the view that the appellant who worked as a Starter could be covered as a workman under Clause (2) of Schedule n of the Act which was inserted in the said Schedule as per the Government Notification dated 9th June, 1969 but he found that there was a binding judgment of the Division Bench of this Court on the same question in respect of the B.E.S.T. Undertaking itself in the case of Municipal Corporation for Greater Bombay v. Sulochanabai Sadashiv Joil 1978 ACJ 208 (Bom). He therefore, referred the said question for consideration by the Division Bench of this Court and that is how this matter is placed before us for consideration. Since this is the only question involved in this appeal and since the parties have agreed, we decide the whole appeal by this judgment
5. Before we proceed to consider the actual question relating to the interpretation of Clause (2) of Schedule II of the Act we may first refer to the Division Bench judgment of this Court cited supra. Perusal of the said judgment would show that the question raised in the said case was whether the Bus Starter was covered by Clause (i) of Schedule II of the Act which is as follows:
The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that Section, that is to say, any person who is--
(i) employed, otherwise than in a clerical capacity or on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle.
6. It is clear from para 8 of the aforesaid judgment of this Court that it was not disputed before the Division Bench that the only Clause relevant for the purpose of decision of the; said case was Clause (i) of Schedule II of the Act. The said judgment has, therefore, construed only Clause (i) of Schedule II of the Act and not Clause (2) thereof which was not pressed into service in that case. It is, therefore, clear that the ratio of the judgment of the Division Bench in the above case has to be restricted to the facts of the said case as it is per incurium because it does not consider and interpret the provision of Clause (2) of Schedule II of the Act which has been pressed into service in the instant case on behalf of the appellant. The Supreme Court has held in the case of State of U.P. v. Synthetics and Chemicals Ltd. : 1993(41)ECC326 , that a judgment rendered sub silentio or bring in per incurium is an exception to the rule of binding precedent.
The judgment of the Division Bench of this Court cannot, therefore, be treated as binding precedent in the instant case in which the provisions of Clause (2) of Schedule II of the Act are specifically brought to the notice of this Court and are relied upon in support of the submission that the appellant is a workman within the meaning of Section 2(1)(n) of the Act.
7. The next question to be considered is whether the appellant is covered by Clause (2) of Schedule II of the Act. Clause (2) of Schedule II of the Act is as follows:
(2) Persons employed in any occupation ordinarily involving outdoor work by any Municipality or by any District Local Board.
The crucial question which arises for consideration is whether by nature of duties performed by the appellant as a Starter he can be said to be employed in an occupation involving outdoor work.
8. As regards the duties to be performed as a Starter, there is no dispute between the parties as to the nature of the dudes of the Starter. There are certain points on the bus routes where there are cabins or some sort of construction made by the respondents where the persons appointed as Starter work. A Starter is required to maintain a register which is in the nature of logbook in which he has to make the entries regarding the timings of the arrival and departure of buses at that point as informed to him by the drivers and/or by the conductors of the concerned buses. He also enters in the said register the facing numbers of the tickets issued to the conductors. Similar duties of the Starter are referred to in para 6 of the judgment of this Court cited supra. It is clear from the duties performed by line Starter that his duties are more or less of clerical nature and that he is required to work inside the cabin. The question then to be considered is whether by the nature of his duties, he can be said to be doing outdoor work within the meaning of Clause (2) of Schedule II of the Act.
9. In interpreting Clause (2) of Schedule II of the Act it has to be borne in mind that the object of the Act is to provide for the payment of certain classes of employers to their workmen of compensation for injury by accident. The above object of the Act clearly shows that it contemplates that during the course of employment the workmen are likely to be injured or suffer occupational diseases for which as a welfare measure the Act seeks to provide compensation. Perusal of the definition of the expression 'workman' given in Section 2(1)(n) of the Act shows that only such categories of employees are sought to be covered who are likely to suffer by the nature of their employment injuries by accident or suffer some occupational diseases. Sub-Section (3) of Section 2 of the Act empowers the Slate Government to add to Schedule II any class of persons employed in any occupation which it is satisfied is a hazardous occupation. The said Sub-section (3) of Section 2 of the Act thus shows that it is only such employees who work in hazardous occupations who are sought to be provided with the benefit of payment of compensation for injuries by accident suffered by them or for occupational diseases contracted by them. In fact Clause (2) of Schedule II of the Act is added by the State Government as per its notification dated 9th June, 1969 by exercising the power under Sub-section (3) of Section 2 of the Act, which would mean that by the said Clause (2) of Schedule II of the Act, the State Government intended to cover such employments in which the work was hazardous.
10. Bare perusal of some of the entries in Schedule II of the Act would show that the occupations whereby the nature of their work the workman are not likely to suffer any injury accident or suffer any occupational disease such as work of clerical nature are specially excluded fronts the entries in Schedule II of the Act. See Clauses (i), (ii), (x), (xiv), (xxx) and (xxxiii) of the said Schedule II of the Act In interpreting the expression 'outdoor work' used in Clause (2) of Schedule II of the Act it has, therefore, to be borne in mind that the scheme of the Act. shows that for conferring the benefits thereunder it intends to cover hazardous employments only.
11. The ordinary dictionary meanings of the expression 'outdoor' contained in Oxford Dictionary and Webster's Dictionary are as follows:
Oxford Dictionary: 1. That is done, exists, lives, or is used, out of doors, without the house, or in the open air.
Webster's Dictionary 'done or used outside the house of, in or characteristic of the open air.
The said dictionary meaning shows that the expression 'outdoor' means what is done or used outside the house or in open air. It is clear from the meaning of the above expression 'outdoor' that if the work is done in the house or a cabin or a covered enclosure as in the instant case or as in the offices such work is not intended to be covered by the expression 'outdoor work' used in Clause (2) of Schedule II of the Act. The reason is obvious that when the employees are working within the of flee or the cabin or in a place having roof above their place of employment there is no likelihood of their being exposed to any danger or being prone to accident unless the said work is of such a nature as is covered by the other entries in Schedule II of the Act where the work carried out in closed enclosure or building itself is dangerous, hazardous or prone to accident As already pointed out the said entries in Schedule II of the Act themselves exclude clerical work and thus provide an intrinsic evidence to show that such work is not hazardous or prone to accident
12. It is, therefore, clear that merely because the appellant was working outside the main office it cannot be said that he was doing outdoor work within the meaning of the said expression because it contemplates work in open air outside the house or the building or a cabin at one place or may sometimes involve movement from one place to another both of which are normally known as field duties. As already pointed out the work done inside the cabin by the Starter of BEST. Undertaking is of a clerical nature which even according to the scheme of Schedule II of Act cannot be said to be hazardous in nature. Therefore, even though the appellant is entitled to press into service Clause (2) of Schedule II of the Act in the instant case, on facts as shown above, he is not covered by the said Clause (2) of Schedule II of the Act. He cannot, therefore, claim any compensation under the Act.
13. In the result, the instant appeal fails and is dismissed. However, in the circumstances, there will be no order as to costs.