ORDER
1. This appeal is against an order passed by Deo J. in Miscellaneous (First) Appeal No. 160 of 1951 on 9th March 1953. The matter arises out of proceedings under the Workmen's Compensation Act, and the present appellant (now deceased and represented by his heirs) was the employer against whom the orders of the learned Commissioner and that of the learned Single Judge have been made.
2. The facts of the case are as follows: The respondent Damodar was working as the head mason in the construction of a godown which the employer was getting constructed to store grain in which he was doing business. Damodar was working as a mason and used to dress stones for use in the godown. While so working a chip of stone flew up and got embedded in his eye, which though treated resulted in the loss of the sight of that eye. Compensation was claimed on two accounts, viz. for permanent loss of the limb and for the expenses of treatment. A lump sum has been awarded by the learned Commissioner, and that amount is not in dispute any longer.
3. The appeal of the employer is directed only against the finding that Damodar falls within the definition of 'workman' given in the Workmen's Compensation Act. According to the employer, both the learned Commissioner as well as the learned Single Judge have erred in holding that Damodar can be described as a workman within the Workmen's Compensation Act. The definition is contained in Section 2(1)(n) of the Act. It reads as follows:
'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. .....
According to the learned counsel for the appellants Damodar's employment was of a casual nature and he was not employed for the purposes of the employer's trade or business:
4. The first question to settle is whether the word 'and' is disjunctive or conjunctive, or in other words whether both the limbs of the conditions of exclusion have to be satisfied. There is a large number of rulings showing that both these clauses are to be read conjunctively. The leading case on the subject is of the House of Lords where Lord Birkenhead, L. C., laid down that both the conditions have to be satisfied: see Manton v. Cantwell 1920 AC 781. at p 780 (A). In dealing with a cognate clause the Lord Chancellor said 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 thus appears that even though this mason 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. Now, the construction of a godown for the purposes of storing grain is so vitally connected with the business of dealing in grain that there can be no doubt that a mason constructing it was employed for the purposes of the employer's trade or business. In the same case to which we have referred the House of Lords laid down that the thatching of a roof through workmen by farmers was so connected with the employer's business as to be contemplated by the definition. In that case the farmer who was living in a thatched house for the purposes of his business employed a workman for thatching the roof. The employee fell off the roof and was killed and was held entitled to compensation and was taken to be within the definition. There are other cases in India on the same point, which need not be cited here. One of them is Khulna Electric Supply Corporation Ltd. v. Bahadur Sardar, 42 Cal WN 516 (B). Other cases will be found collected in any leading text book on this Act.
5. The second part of the definition has now to be considered. The question is whether this mason could be said to have been employed on monthly wages not exceeding Rs. 400 in a capacity as described in Schedule II. It has been found as a fact by the learned Commissioner that the building which was being constructed was more than 20 feet in height from the ground to the apex of the building. This is a finding of fact and is not open to challenge in view of the provisions of Section 30 of the Act. Once this is held, it is quite obvious enough that Damodar came within the II Schedule of the Act.
6. The next question is whether he was employed on monthly wages not exceeding Rs. 400. No doubt, Damodar was being paid daily wages; but the employment had continued for more than two months. His emoluments, though they were not paid on a monthly basis, did not exceed Rs. 400 per month. This is an admitted fact. In view of the rulings which have been cited by the learned Single Judge one has not to see that the employment should be on a monthly basis. What has to be seen is that the emoluments which are mentioned do not exceed more than Rs. 400 per month. In the present case this condition is also satisfied.
7. In the result Damodar must be treated as a workman even though his employment was of a casual nature, because he was employed for the purpose of the employer's trade or business his emoluments did not exceed Rs. 400 per month and he was working in a capacity such as is described in one of the clauses of the second schedule of the Act. The decision of the learned Single Judge, therefore, with all due respect is entirely correct. We see no reason to interfere. Indeed we did not trouble the learned counsel for the respondent for a reply.
8. The appeal fails and is dismissed withcosts.