C.K. Prasad, J.
1. Appellant being aggrieved by the judgment dated August 4, 1998 passed in Misc. Appeal No. 613/96 by a learned single Judge of this Court whereby the appeal preferred by him under Section 30 of the Workmen's Compensation Act had been dismissed, has preferred this appeal.
2. According to the appellant, he was: working as a labourer for digging well in agricultural field of the respondents on May 12, 1987 at the rate of Rs. 10/- per day as wages. According to him, while he was working in the well, it subsided and he got entranged after fall inside the well. He suffered number of injuries and became permanently disabled having lost movability of his legs and had to suffer amputation of toe of one of the legs. He filed application claiming compensation under: Section 23 of the Workmen's Compensation Act, hereinafter referred to as the Act.
3. Respondents contested the claim of the appellant and denied that the appellant was, engaged as a labourer on the alleged date of incident and further denied that he ever fell into the well. Their stand was that the appellant had climbed up on some Mango tree and fell down from it and suffered injuries and out of animosity, had made out a false claim against the respondent. Their further plea was that because of fall from the tree, appellant became paralysed and therefore lost capacity of his legs. The Commissioner under the Act, on consideration of the material on record, held that the appellant could not establish that he was a workman working under the respondents to dig well nor it was trade or business of the respondents to carry out such work of digging of well and accordingly, it dismissed the application filed for grant of compensation.
4. Aggrieved by the same, appellant preferred appeal before this Court under Section 30 of the Act. This Court on consideration of the material held that appellant was engaged by respondent No. 2 to dig the well and the wages agreed was at the rate of Rs. 10/- per day. However, the learned single Judge held that appellant was not a workman within the meaning of Section 2(a) of the Act and accordingly dismissed the appeal. He was of the opinion that there is no entry about employment of digging or repairing of wells in schedule II of the Workmen's Compensation Act and as such, he shall not be entitled to the relief claimed.
5. Ms. Jaya Laxmi Aiyer appears on behalf of the appellant whereas respondents are represented by Sri Nitin Pendharkar. Sri Pendharkar raises a preliminary objection as regard to the maintainability of the present appeal under Clause X of the Letters Patent. He submits that the Letters Patent constituting the High Court of Judicature at Nagpur is still in force and applies to the High Court of Madhya Pradesh. We are inclined to accept his submission for the reasons hereinafter mentioned. Clause X of the Letters Patent reads as follows:
'10. Appeal to the High Court from Judges of the Courts - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of the appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provisions of Section one hundred and seven of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section one hundred and eight of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section one hundred and eight of the Government of India Act, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgment of Judge of the said High Court or of such Division Court shall be to Us, Our Heirs and Successors in Our or Their Privy Council, as hereinafter provided.'
6. The States Reorganisation Act, 1956 formed the State of Madhya Pradesh from November 1, 1956. Section 49 of the said Act provided that the High Court exercising power immediately before the appointed day i.e. November 1, 1956 in relation to the existing State of Madhya Pradesh shall as from the appointed day be deemed to be a High Court for the new State of Madhya Pradesh. Thus, by legal fiction the High Court of Judicature at Nagpur established and constituted by Letters Patent by George the Vth under the Government of India Act, 1915 continued by virtue of Article 225 of the Constitution of India after January 26, 1950, the High Court of new Madhya Pradesh State. In view of Section 59(1) of the State Reorganisation Act, 1956, the High Court at Nagpur became the High Court for the new State of Madhya Pradesh from the appointed day i.e. November 1, 1956 and was styled as the High Court of Madhya Pradesh.
7. Article 225 of the Constitution of India has not constituted or established new High Courts but has continued the existing High Court. Therefore, the position of the Nagpur High Court after adoption of the Constitution was that the jurisdiction and the law administered in it and the respective powers of the Judges in relation to the administration of Judges in the Court, including any power to make rules of the Court and to regulate sitting of the Court and its members sitting alone or in Division Court remain the same as it had been immediately before the commencement of the Constitution. This Article thus preserved the pre-constitutional jurisdiction of the High Court without conferring any power or jurisdiction which it did not possess. Needless to state that this preservation of power is subject to the provisions of the Constitution and to the provision of any law of the appropriate legislature. The States Reorganisation Act has not in any way effected any change in the powers of the High Court nor has defined those powers afresh. It has only made the High Court of Nagpur as the High Court of Madhya Pradesh. As a consequence thereof, all the powers and functions of the High Court of new Madhya Pradesh remain the same and are referable to the Letters Patent subject to the provisions of Constitution of India after it came into force from January 26, 1950. The result is that such provisions of the Letters Patent are alive and in force which do not have similar provisions in the Constitution of India.
8. Mr. Pendharkar then submits that an appeal lies from a judgment of one Judge of the High Court and not against the award made by a learned single Judge of this Court and hence Clause X of the Letters Patent is not attracted. In support of his submission, he has placed reliance on a Division Bench Judgment of the Nagpur High Court in the case of Secretary of State v. Ms. Geeta, AIR 1939 Nagpur 122 and our attention has been drawn to the following passage from page 128 of the judgment:
'We are accordingly of opinion that this case falls within the decision of the Privy Council in 40 Cal 21 and the observations of their Lordships in 17 CWN 421 and that no appeal lies. There is, in our opinion, no judgment within the meaning of Clause 10 of the Letters Patent from which to appeal. There is only an award made pursuant to the provisions of the Workmen's Compensation Act. It may be that the result is unfortunate, but that can be set right by legislation.'
9. Mr. Pendharkar is right, when he submits that in the case of Ms. Gita (supra) the Nagpur High Court had held that no appeal shall lie to the Division Bench against the order of a single Judge passed in appeal under the Act. The ratio of the said decision is that the Commissioner under the Act renders award, and consequently in appeal the adjudication made by this Court shall be construed as an award and not judgment and therefore no appeal shall lie under Clause X of the Letters Patent. However, in view of later decision of this Court by a larger Bench, this question need not detain us any further. It is worth mentioning that a Full Bench of this Court in the case of Oriental Insurance Company Limited Napier Town, Jabalpur v. Annamma Abraham and Ors., AIR 1995 M.P. 244, has held that an appeal shall lie from a judgment or a single Judge of this Court before the Division Bench under Clause X of the Letters Patent, rendered in appeal from an award passed by the Motor Accidents Claims Tribunal. In the said case, it has been held as follows:
'2. The Insurer challenged this award before this Court and the learned single Judge dismissed the appeal. Hence, this Letters Patent Appeal. The matter has been referred to Full Bench in view of doubt about the maintainability of L.P.A. (The Oriental Insurance Company v. Chintaman, C.R. No. 602 of 1992) connected cases, a Full Bench of five Judges of this Court has held that a decision under Section 140 of the Motor Vehicles Act, 1988 (corresponding Section 92A of the Motor Vehicles Act, 1939) is involved, is an award and an appeal lies against such award under Section 173 of the Act of 1988 (corresponding Section 110-D of the old Act). The decision dismissing the appeal is a judgment for the purpose of Clause (10) of the Letters Patent (Nagpur). We, therefore, hold that the Letters Patent Appeal is maintainable.'
10. True it is, that the judgment of the Nagpur High Court in the case of Ms. Gita had not been adverted by this Court in its full bench decision in the case of Oriental Insurance Co. Ltd. (supra). Nonetheless, the Full Bench of this Court having held that appeal lies from the Judgment of a single Judge rendered in appeal against an award passed by the Motor Accidents Claims Tribunal under the provisions of Motor Vehicles Act, we are bound by the said decision. Accordingly, we hold that this Letters Patent Appeal is maintainable and we overrule the preliminary objection raised by Shri Pendharkar.
11. As stated earlier the appellant did not bring to the notice of the learned single Judge any entry in Schedule II of the Act, which in its purview shall include digging of Wells. However, in this appeal, Ms. Aiyer submits that the digging of Well shall come within entry (xvi) of Schedule II of the Act. Entry (xvi) reads as follows:
'(xvi) Employed in the making of any excavation in which on any one day of the preceding twelve months more than twenty-five persons have been employed or explosives have been used, or whose depth from its highest to its lowest point exceeds twelve feet.'
Ms. Aiyer submits that the expression 'excavation' shall include the work of digging well. Mr. Pendharkar, however, submits that appellant having not raised this point either before the Commissioner under the Act or before this Court in appeal, he cannot be permitted to raise this point in this appeal for the first time. He further submits that the expression excavation shall not, in its fold include the work of digging of well.
12. Having appreciated the rival submissions, neither on principle nor on precedent we are inclined to accept the submission of Sri Pendharkar. Whether digging of a well comes within the expression of excavation, is a pure question of law which does not require investigation of any fact and in that view of the matter, we are of the opinion that this question can be raised by the appellant for the first time. In our opinion, digging of a well is nothing but excavation. In fact, this point came up for consideration before this Court in the case of Ghasi Ram v. Nannibai, 1960 MPLJ 89 and in the said case, question was as to whether work of plastering of a freshly digged well would come under entry (xvi) of Schedule II and this Court held as follows:
''The expression is capable of a wider as well as a narrower construction. It may either mean a workman who is actually engaged in digging a well. It may even include a workman who is employed after the digging is over in making constructions such as a wall, plastering it and in raising scaffolding for the purpose. The question for consideration is whether we should adopt a narrower or a wider construction ......... the expression 'making of excavation' cannot be confined to mere process of digging but should include ancillary processes such as constructing wall to put it in a sound condition, plastering the same or even raising necessary scaffolding for the purpose. If we are to hold that if a workman under the Act and the compensation payable under it can be claimed for an accidental injury to him or for his accidental death but the moment the digging is complete any person engaged in completing the construction of the well or even a person engaged in preparing a scaffolding for aiding the process of digging is not a workman, it would be a strange result not in consonance with the object and spirit of the Act and would be clearly such as could not have been contemplated to flow by 'the framers of the Act.'
We are of the opinion that when plastering of the well is included in entry (xvi) of Schedule II, a workman actually engaged in digging a well necessarily comes within entry (xvi) of Schedule II.
13. Mr. Pendharkar then submits that even if it is held that digging of well comes within the expression of excavation as mentioned in entry (xvi), still to come within the expression of workman, appellant is required to prove that he was employed in digging the well in which on any one day of the preceding twelve months more than twenty-five persons have been employed or explosives have been used, or whose depth from highest to the lowest point exceeded twelve feet. He submits that the appellant has nowhere pleaded that in the digging of well on any one day of the preceding twelve months more than twenty-five persons were employed or explosives were used or the depth of the well from its highest to its lowest point exceeded twelve feet.
14. Ms. Aiyer however submits that the appellant in his application before the Commissioner under the Act had clearly stated that while he was digging the well, the wall collapsed and he sustained injury on account thereof. She highlights that the very fact that the appellant in application had stated that he was digging the well, it has to be assumed that its depth from its highest to its lowest point exceeded twelve feet. It is not the case of the appellant that his case comes within the first two conditions but his whole claim is that he was engaged in digging of well whose depth from the highest to the lowest point exceeded twelve feet.
15. Neither the Commissioner under the Act nor this Court in appeal had gone into the question of depth of the well. In such a situation, we deem it expedient that the parties are given opportunity to lead evidence on this question before the Commissioner under the Workmen's Compensation Act and in case it is found that the depth of the well exceeded twelve feet, the Commissioner shall proceed to determine the amount of compensation.
16. In the result, we allow the appeal, set aside the order of the Commissioner under the Act as also the judgment of this Court in appeal and remit the case to the Commissioner under the Act for decision in accordance with law, bearing in mind the observation made in this judgment.