T.N. Singh, J.
1. Second bout of litigation employer is fighting in this Court challenging the award passed against him under the Workmen's Compensation Act, 1923 (for short 'the Act'). Earlier, he had come in M.A. No. 112 of 1987 when the award passed on July 21, 1987 was set aside on the technical ground that the judgment was not well-written one and the Commissioner was required to 'record his judgment in accordance with Rule 32(1) of the Workmen's Compensation Rules, 1923 and to dispose of the proceeding by March 15, 1988. Accordingly, a fresh judgment is passed on July 2, 1991, herein impugned and thereunder the liability of the employer stands reiterated.
2. Admitted facts of the case are few and those too are the contentious ones. Those I may refer to immediately to project the cleavage of (sic) the rival versions set up by parties, albeit with regard to the single legal contention. Limitation of this Court's jurisdiction in appeal under Section 30 of the Act is to be kept always in view and parties are also conscious of that position and have joined on the single legal contention--whether deceased Jagdish for whose death compensation is claimed was a 'workman' and whether his death in the fatal accident took place in the course of employment.
3. Prag (since deceased) along with four had filed on March 23, 1977 the claim petition demanding compensation under the Act for his son's (Jagdish) death on January 22, 1977 alleging that he was asked to report for duty at 7.00 p.m. in the evening to the appellant to do work in connection with irrigation of his agricultural farm. He was being paid daily wages at the rate of Rs. 7/-. There was a belting between the shafting of the water pump and electric motor supplying the power but there was no safety guard; Jagdish's scarf (pancha) got entangled in the shafting and the belting and he was drawn between the two which resulted in his being fatally injured and his head being severed from the body. He also alleged that the electric motor could not be stopped by switching off the motor because power was being stolen from direct mains and the motor was connected directly to the mains. Claimant Nos. 2 to 6 were minor brothers and sister of the deceased and they were dependent on him because his father, the claimant No. 1, had no land or any property and was a farm labourer. For maintaining the family, deceased Jagdish and Prag made joint contributions out of their earnings. The said claimant Prag also stated that on January 31, 1977, he had sent a notice to the non-applicant/appellant demanding compensation. At para 13, he stated that he had made the report in respect of the incident to the police for taking necessary action, but the non-applicant was an influential person and he had exercised undue influence on the police and the complaint made was hushed up.
4. In the written statement, filed on May 27, 1977, at para 4, it was stated that the averments of the claimants in para 4 of the claim petition were not correct and a specific case by the appellant/non-applicant was set up denying that on the date of occurrence, there was any irrigation work on his farm and for that work Jagdish was employed. It was his case that on this date, he was out of station and was pursuing at Lashkar (Gwalior) his Appeal No. 85 of 1975-76 before the Additional Commissioner for Chambal Division. He also stated that Prag might have unauthorisedly operated the motor and supplied water to the neighbouring farmer without his knowledge and for the occurrence, therefore, he was not liable. At para 5, he, however, stated that on his return from Lashkar, on the same date, he could learn about death of Jagdish and his head being severed from the trunk. At para 7, he stated that for his electric connection, he had a meter, a switch and a starter and he was operating the electric pump with the help of electricity with due permission of the Electricity Department. It could be that the claimant had unauthorisedly taken direct connection from the electric mains to operate the motor because he was obliging somebody and if through meter power was drawn, claimant's theft would have been discovered. At para 8, he stated further that age of deceased Jagdish was mentioned as 16 years when claimant Prag had lodged the report in that connection and that Rs. 7/- dairy wages are not paid to a minor farm labourer. At para 11, is admitted receipt of notice dated January 31, 1977 from Mazdoor Sabha, Bhind to which a correct reply was given.
5. Claimant Prag examined himself and three other witnesses, i.e., Mazdoor Sabha Secretary, Ganga Shankar, Ram Sahai and Narayan. The non-applicant examined himself and one Daru who was his employee on the date of his evidence and was admittedly also working under him on the date of occurrence. The only other witness he examined is the Police Officer Gambhir Singh Tomar, who proved Exhs. D-2, D-3 and D-4. One was the alleged report of Prag (Exh. D-3) and the other two were statements of witnesses he had examined in connection with investigation of the matter. Exh. P-l is a notice which P.W Ganga Shankar had admittedly issued to the non-applicant Vidyaram. To that, reply Exh. D-5 was sent on February 5, 1977, but also proved is Exh. D-l, which is addressed by claimant Prag to the Assistant Labour Commissioner, Gwalior with copy endorsed to the Mazdoor Sabha, Bhind; that is dated January 31, 1977.
6. To re-appreciate evidence obviously is not within the ken of my competence in this appeal under Section 30 of the Act and as such, I am required first to revert my attention to the admitted facts and the special feature of the evidence that has come on record which deserves forensic focus necessary for determination of the question earlier mooted for disposal of this appeal. In this connection, the first question raised by the appellant to be answered is if the police officer's oral evidence and the documentary evidence which has come through him do really non-suit the claimants. Although Prag, in the claim petition, stated that he had made the report to the police, but he denied his thumb impression and also denied that the facts as recorded in Exh. D-3 were so recorded on his report. Although the police officer Gambhir Singh Tomar has denied being influenced unduly and also denied acting at the behest of the non-applicant, I would accept trial Court's view and would hold him unreliable. On the other hand, I would accept the evidence of claimant Pragthat he was upset enormously by his son's death and had lost his senses and he did not state what was recorded on his report by the police officer and that Exh. D-3 was not his report.
7. Intrinsically, the case of the appellant/ non-applicant is useless and hollow. The police officer appears to have followed his dictates to save his skin, but, on his evidence, no reliance can be placed because what he was required to do under the law in such circumstances, he had not done. His bare assertion that he had sent 'intimation' as contemplated under Section 174 is not to be accepted because nothing else has come on record to establish that he had followed meticulously the provisions of Section 174 and had done all necessary things which were required to be done on receipt of the alleged report, Exh. D-3, On receipt of the report about 'unnatural death' which had taken place, as enacted in Section 174, he was not only required to 'immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests', but to proceed to the place where the body of the deceased was reported lying and there, 'in the presence of two or more respectable inhabitants of the neighbourhood, make investigation, and draw up a report of apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appear to have been inflicted.' It has not been established that the Executive Magistrate had held the inquest and he has also not proved the report contemplated under Section 174, he had allegedly prepared because that report has not come on record. It is doubtful indeed if he had really sent any 'intimation' as deposed by him and what appears, on the other hand, clear to me is that the statements of the witnesses whom he is said to have examined were recorded pursuant to an F.I.R. which could be lodged by Prag and which had been suppressed. When the point was in issue and the controversy was a hot one about involvement of the police officer in the conspiracy to hush up the F.I.R., burden solely rested on the non-applicant/appellant to establish the contrary and remove the doubt. He failed to do so. In his written statement, he had taken a plea to support the authenticity and correctness of Exh. D-3 and that fact he had to prove, but he failed to bring on record convincing, clear and clinching evidence.
8. On the other hand, the claimants' case being that the non-applicant/appellant was stealing electricity and that fact was disputed, but that fact being of crucial significance to the cause of accident which the non-applicant/appellant had disputed, it was latter's burden to prove the case which he pleaded. In that also he failed. His own witness Daru, who admittedly was eye-witness, did not support him. The report of the police officer contemplated under Section 174 should have been brought on record to indicate how he found things at the place of occurrence when he visited the same. Whether or not the electric motor was disconnected from the meter and had been connected to the electric mains so that it could not be stopped to avert the accident and save the poor soul? Nothing has been proved by him. His case that water was given unauthorisedly by operating the pump to neighbouring farmers has also not been proved as his witness Daru did not support him even in that regard. On facts proved, the conclusion which is irresistible is that during night of January 22, 1977, at 8.00 p.m. when the occurrence took place, the water pump was being run by electric motor and with that irrigation work was being done at the behest of the non-applicant/ appellant for irrigating his field.
9. The next question and indeed, the only question of signal importance, therefore, arises as to whether deceased Jagdish was employed by the non-applicant/appellant and he met his death in the course of his employment. Main plea in that regard is that deceased was a minor, aged 16 years and no evidence has come to prove the contract of employment. It is also contended that on admitted facts, the injury resulting in Jagdish's death could not be related to his employment. It is true that about the age of Jagdish and his adulthood, satisfactory evidene is lacking. It is equally true that in Exh. P-l, the notice of Mazdoor Sabha, the fact mentioned is that on the date of occurrence Jagdish had been sent for by the non-applicant/ appellant to work at his farm on the tube-well for which he was to be paid daily wages of Rs. 7/-. In that document and also in Exh. D-l, the complaint addressed by Prag to the Assistant Labour Commissioner, the circumstances are stated of the actual occurance and accident. I would accept the finding of the Court below, borne out on oral evidence and also on Exhs. P-l and D-1, that D. W. Daru was operating on that night the electric pump set and there was a quilt lying at the place of occurrence which he wanted Jagdish to be brought to him on the other side of the belting. When deceased was crossing the belting which was in motion, as the electric motor was running, his scarf got caught up because the belting was not provided with any safety guard and indeed, the electric motor could not be switched off because it was disconnected from the meter and connected directly to the mains.
10. Reference may be made now to relevant statutory provisions to decide the question and the contentions agitated. No provision of the Act interdicts jurisdiction of the Workmen's Compensation Commissioner's Court to enforce liability of an employer for compensation when 'personal injury is caused to a workman by accident out of and in the course of his employment' in case the workman concerned is a minor and he is not an adult. Clause (n) of Section 2 defines the term 'workman' who could be 'any person' except 'any person working in the capacity of a member of the armed forces of the Union' and indeed illustratively, in Schedule II of the Act, are enumerated different kinds of trades or business in which a 'workman' may be employed. In the Schedule also, there is no prohibition against 'employment' of a child or a non-adult by any employer engaged in the different kinds of activities of trade and business enumerated therein. In Section 4 which provides procedure for quantifying the amount of compensation to be granted in terms of Section 3, there is no prohibition against making award in respect of death caused of a minor workman. Schedule IV contains a table referred to in Section 4, according to which the compensation is to be quantified in case of permanent disablement and death. Therein also, the multiplying 'factors' which are to be applied for determination of compensation to the age of the workman range from 'not more than 16 years of age and different factors are indicated in respect of higher ages such as 17, 18, 19 etc. up to 65. It is only in the Employment of Children Act, 1938, that there is a prohibition in Section 3 against a child being employed or permitted to work in the specified occupations until he has completed the minimum 14 years of age, Section 3 (3) of that Act confoms indeed to the prohibition contained in Section 67, Factories Act, that no child who has not completed his 14th year shall be required or allowed to work in any factory. Therefore, according to me, under the Act, in terms of Sections 3 and 4 and Schedule II, compensation is awardable in case of death of a non-adult workman in an accident during the course of his employment.
11. The question whether the deceased Jagdish was duly employed in connection with his trade or business by the non-applicant/appellant is indeed a vital question because Mr. J.P. Sharma protested vehemently that no 'contract of employment' as contemplated under Clause (n) of Section 2 of the Act has been proved and in support of his contention, he cited Chintaman Rao v. State of Madhya Pradesh, (1958-II-LLJ-252) (SC). On facts, that is an entirely different case and indeed, the case was employer's criminal liability under the Factories Act arising out of a complaint made against the appellant for violation of the provisions of Sections 62 and 63 of the said Act. The company had a bidi factory at Sagarand in the manufacturing process, some contractors were employed. It was held therein that the contractor was not employed by the management as a 'worker', but he was an 'independent contractor' and not being employed 'directly or through any agency', the provisions of Section 2(1) of the said Act were not attracted. It is in that connection, their Lordships had observed that there should be privity of contract between such a contractor as contemplated under Section 2(1) and the employer.
12. The provisions of Section 2(1) of the Factories Act are not in pari materia with those of Section 2(1)(n) of the Act. The scope of the definition of 'workman' under the Act is to be evaluated in terms only of the language used by legislature in the said provision because the objects of the two enactments are entirely different. The Act is a beneficent social security legislation and is to be liberally construed so that its object to prevent destitution and fulfil the constitutional imperative underlying Articles 41 and 39 are achieved. The wide amplitude of entitlement underwritten in Section 2(1)(n) is exemplified in the legislature's use of the expression 'whether such contract is express or implied, oral or in writing' which follow the words 'contract of employment'. The liability-net in terms of Sections 3 and 4 is woven with the yarn of implications of the words 'employer' and workman'. The term 'contract' is not used in the sense it is used in the Contract Act because a minor is incapable of entering into a contract and his employment is not barred, as I have already held and compensation for his death is not barred. It would indeed be a case only of doing any work for wages defined in Section 2(1)(n) to be paid by the employer of the workman and only when the work is of a 'casual nature' and the employment is 'otherwise than for the purpose of employer's trade or business' that from the liability-net the employer can escape in terms of the express legislative mandate. The contract of employment contemplated under Section 2(1)(n) arises by implication in favour of a person working for the 'employer' defined in Section 2(1)(e). Valuable clue indeed is provided by said clause (e) in that regard wherein in respect of 'contract of service or apprenticeship' it is stated that when services of a person employed are 'temporarily lent or let out on hire to another person' by the person employing the workman, then in his place, shall be substituted 'such other person while the workman is working for him'.
13. The test of contract of employment obviously is actual work which the workman does in pursuance to such a contract because it would be supposed that he was not doing the work gratis and accepted employer's control pursuant to the contract. Support for this view I find in Shankar Balaji Waje v. State of Maharashtra, (1962-I-LLJ-119) (SC) a case on Factories Act, but important for the reason that the concept of 'employment' was examined therein. It was held that 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'. That concept also pervades and supplies the meaning of the term 'workman' defined in Section 2(1)(n) of the Act. Evidently, such a contract is a one-sided one in the type of an undertaking given to the employer by the workman, orally or in writing, explicitly or by implication, for working under the control and supervision of the employer. That is the gist of [he contract of employment envisaged under Section 2(1)(n). On behalf of the claimants/ respondents, on this Court's decision in Gorelal v. Dropadibai, 1958-65 ACJ 248 (MP), reliance is placed to support the contention that onus was on the employer to prove the casual nature of the employment, but that question does not arise in this case.
14. In the instant case, claimants' witness, Ram Sahai, did depose that he saw during the day the non-applicant/appellant in the village and their other witness Narayan also proved that deceased had told him that he was employed by the non-applicant/appellant on payment of daily wage of Rs. 7/-. On the other hand, the case set up by the non-applicant/appellant is that there was no talk and there could not indeed be any talk of employment of deceased Jagdish with him because he was away in Gwalior for the whole day and he came back at night and was made aware of the incident after it had occurred. He did not prove (except asserting by his own evidence) by any credible corroborative evidence his absence from the village and his presence accordingly in Gwalior on that date. He could do so by calling for the records of the case from the Additional Commissioner's Office in connection wherewith he had said that he was by at Gwalior, but he did not do so, adverse inference can be legitimately drawn, therefore, against him, the best evidence being suppressed. If that was produced, that would have contradicted and not supported his stand.
15. It would be necessary, therefore, to look into the other evidence to examine the corroborative circumstances of implied contract of employment between the non-applicant/appellant and deceased Jagdish. Daru, who gave evidence for non-applicant/appellant, admitted that his employer Vidyaram had about 100 bighas of land and he used to engage workers on daily wage basis during the harvesting season. Although he denied employment by the non-applicant/appellant Vidyaram of deceased Jagdish, he admitted that he as also claimant Prag were in the service of Vidyaram on the date of occurrence. He also admitted that he was operating the electric pump though he had no licence or certificate. He deposed that Vidyaram did not keep any attendance register and on the date of occurrence during the whole day, the pumping machine was running first for irrigating Vidyaram's field and then for Radhey Shyam's and that when fields of others were irrigated, charges at the rate of Rs. 5/- per hour were realised from them for running the pumping set. It is, therefore, not disputed that at the place of occurrence, on the date of incident, the pumping set was being run for irrigating the fields and deceased Jagdish admittedly was present at the place of occurrence. Nothing has come on record to indicate that he had gone there for mere fun or to play tricks with his fate. Evidence has come on record that claimant Prag was landless and was a lonely man, dependent for survival and maintenance of his family on earnings from his labour and from his deceased son's labour. The circumstances are tell-tale to suggest that there was an implied contract of employment of deceased by Vidyaram on the date of occurrence for working at the site of the pumping set in connection with irrigation of the fields. That case indeed has been set up consistently all throughout by the claimants in Exhs. P-1 and D-1 and in their claim petition. Deceased's father, claimant Prag, and also his witnesses Narayan and Ram Sahai have deposed to about rates of wages payable to Jagdish by Vidyaram. They have been believed by the Court below, but, in any case, what is undisputed atleast is that at the place of occurrence on the date of incident, deceased Jagdish was found doing some work which Narayan deposed. He has stated that he had seen himself deceased Jagdish collecting some fodder and evidence has come on record that there was fodder-cutting machine also operating at the place of occurrence. Sufficient circumstantial evidence has come on record suggesting an implied contract of employment of deceased Jagdish by non-applicant/appellant.
16. The only surviving question is if the mere fact that at the particular point of time, when the accident occurred, deceased Jagdish, responding to Daru's call to take quilt for him, would be such an act on his part as would be outside the course of his employment. Daru being Vidyaram's servant, and being in-charge of working operations relating to the irrigation of fields, would be evidently enjoying the status of a supervisor and he would be exercising on behalf of the employer Vidyaram control over other persons working at the site. It has been held in Dharangadhra Chemical Works Ltd. v. State of Saurashtra (1957-I-LLJ-477) (SC), that the test of contract of service is existence of right in the master to supervise and control not only by directing what work may be done, but also directing as to how and the manner in which work has to be done. The incident took place in the month of January and the night being cold, at the end of the day after hard work, Daru wanted to comfort himself by slipping inside the quilt and he called, therefore, Jagdish who was under his control to bring the quilt. The act of deceased Jagdish of carrying the quilt to Daru would be related to his employment because it advanced the interest of his employer. The expression 'course of employment' is to be infused with such meaning as will reflect the nature of the employment, the environment in which the work is done and the surrounding circumstances, characteristic of human nature. The small boy earning bread for his family, opting out of the company of his younger brothers and sister to land at night at a place of hazardous undertaking, had little option except to respond dutifully and obediently to Daru's call. Daru's status naturally overawed him even if Daru himself was not frightened and apprehensive of the prospects of the demand he had made on the young boy. I would, therefore, hold that in carrying the quilt, deceased Jagdish acted under Daru's control and he was advancing the interest of his employer non-applicant/appellant in doing so; his act fell within the mischief of the expression 'course of employment'.
17. For all the aforesaid reasons, I find no merit in this appeal and it is dismissed. The respondents/claimants are entitled to their costs as they are dragged to this Court twice without obvious justification. Counsel's fee Rs. 200/- if certified.
18. Before parting with the records, I would like still to express my regret that once again even after remand, a flawed judgment has been rendered and evidence has not been critically examined by the Court below. It is indeed for this reason that it became necessary for me to undertake myself that exercise to prevent miscarriage of justice likely to result from a second remand.