Judgment:
S.M. Abdul Wahab, J.
1. This Letters Patent Appeal has been preferred by the Managing Director, Maduari District Co-operative Spinning mills Limited against the judgment dated August 14, 1991, in C.M.A. No. 185 of 1984 of a learned single Judge of this Court, reversing the order of the Court of Commissioner for Workmen's Compensation, Madurai, dated December 20, 1988, in W. C. Application No. 13 of 1983.
2. The respondent, Selvam, filed the afore said workmen's compensation application for compensation of Rs. 23,520 for the multiple injuries sustaiined by him in an accident on May 7, 1982, within the precincts of the District Co-operative Spinning Mills Limited, Maduari. The Commissioner for Workmen's Compensation rejected the claim of the respondent on the ground that though the respondent was a workman within the meaning of Section 2(n) of the Workmen's Compensation Act, 1923, he sustained the injuries due to a fall from the coconut tree, which was not his work or connected with his work. However, the learned single Judge of this Court allowed the claim of the respondent to the extent of 75 per cent. Hence, the Letters 5 Patent Appeal.
3. The main contentions urged by learned counsel for the appellant are twofold. The first one is that the respondent was not a workman 11 within the meaning of Section 2. The second one is that the injuries were not sustained by him during the course of employment.
4. As regards the first contention the Commissioner for Workman's Compensation has also found that the respondent was a workman. He has held that the definition will include the unskilled coolie, who is engaged now and then in civil work like building constructions or cutting grass, etc., as it is deemed to be incidental to the main work. There is no cross-objection filed by the appellant with reference to the finding that the respondent is a workman within the meaning of Section 2(1)(n) of the Act. From the judgment of the learned Judge also we do not find that any argument was advanced against the said finding. However, in the present memorandum of appeal a ground has been taken by the appellant stating that the deceased was not a workman as defined in Section 2(1)(n) of the Workmen's Compensation Act. 'Re defamation of workman is found in Section 2(1)(n) of the Workmen's Compensation Act, which is as follows :
''Workman' means any person (other than a person whose employment is of a causal nature and who is employed otherwise than for the purpose of the employer's trade or business) who is ...
(ii) employed on monthly wages not exceeding Rs. 1,000 in any such capacity as is specified in Schedule II.
Item (ii) in Schedule 11 referred to by Section 2(1)(n) of the Act is as follows :
(ii) employed, otherwise than in a clerical capacity, in any premises wherein or within the precincts whereof a manufacturing process as defamed in Clause (k) of Section 2 of the Factories Act, 1948, is being carried on, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made (whether or not employment in any such work is within such premises or precincts) and steam, water or other mechanical power or electrical power is used.'
5. According to the a appellant, the respondent was only an unskilled non-muster-roll casual coolie, who was engaged now and then in civil work like building construction or cutting grass. Since the work was of causal nature, the applicant was not employed continuously and whenever there was no work, he was not employed. This is stated in paragraph of the reply statement of the appellant before the Commissioner. From the above, it is admitted that the respondent was a coolie engaged now and then in civil work like building construction or cutting grass.
6. The words 'A person whose employment is of a causal nature' have to be understood to mean that the employment of the person must be of a causal nature and not the work in which the person is employed. From the evidence, it is seen that he is being employed every now and then for building construction work and cutting grass. In the evidence, the respondent has stated that he was engaged in building construction work, grass cutting, cleaning of machineries. The civil engineer in his evidence has stated that it is he, who gave the work to the appellant and he was engaged in construction work as 'Chithal'. He has also admitted that he will be given work for 15 days in a month, but in some months there will be no work for him. From this, it can be seen that whenever there is building construction work continuously or at intervals or grass cutting, the respondent will be engaged. It is not stated either by the engineer or by the Labour Welfare Officer employed in the appellant-mill, that any other person is given the work in the place of the respondent. Further, the respondent has clearly stated that he was also engaged in the work of cleaning machines. This statement of the respondent is not denied by the two witnesses examined by the appellant before the Labour Commissioner. Even though the building work may be causal, the grass cutting, cleaning of the machines cannot be said to be a causal one. Ale cleaning of the machines has to be done every day even though the grass cutting can be done at regular intervals. But what has to be considered is whether the respondent was regularly employed for these works or these works were performed by some other persons and the respondent is given these works according to the whims and fancies, i.e, on some occasions the appellant being given the work and on other occasions the work being given to other persons. So long as there is evidence that the employment of a person is regular for doing even the work which may be irregular or occasional, the employment cannot be construed to be casual.
7. In Contractor Kattupachi Arumugham v. Nagammal AIR 1949 Mad 462, a coolie employed by a maistry under a contractor for loading and unloading of the wagons has been held to be a workman.ln Koehu Velu v. Joseph : (1980)IILLJ220Ker a person who was employed for plucking coconut in a coconut garden has been held to be a workman. In the aforesaid case, the plucking of coconut at intervals is regular.
In the other case, loading and unloading of wagons is also regular. In paragraph 10 of the decision cited above 1988 II LLJ 220, the Division Bench of the High Court of Kerala has held as follows :
'The employment is not of a casual nature at all, for, there is regularity in the employment. Once, in 50 days or so the professional climber has necessarily to be engaged. It is not as if the engagement is by chance or accident. May be he may engage different climber on different occasions. That will be a case of his casually employing, persons. There may be regular employment of persons in employment of casual nature, regular employment of persons in employment of regular nature and causal employment of persons in employment of regular nature.'
8. As observed earlier, in some cases, the employment will be regular and in other cases the work to be performed will be regular. Therefore, if regularity is there either in the work or the employment, then the person employed can be said to be regularly employed and he will not be construed to be a person casually) employed. Therefore, as rightly found by the Commissioner for Workmen's Compensation as well as the learned single Judge, the respondent was not a casual labourer but he was a workman within the meaning of Section 2(1)(n) of the Workman's Compensation Act, 1923.
9. The only other question that arises for consideration is whether the injuries were sustained by the respondent in the course or during the course of his employment. The Commissioner for Workmen's Compensation has stated that he was not appointed to climb the tree and pluck the coconut. The date on which the accident took place (May 7, 1982) was a local holiday and there was no construction work on that day. From the above, the Commissioner has concluded that the plucking of the coconut was not during the course of the employment.
10. The respondent was engaged in building works, grass cutting and machine cleaning. Apart from the aforesaid work he has also stated that he would perform any other work when directed. From this, it is clear that the respondent 5 was engaged in other miscellaneous works also. In his evidence he has stated that when he went to the office, time was noted. The evidence reads as follows :
xxxx xxxx xxxx
11. He has also stated that Annamalai and Pattabiraman directed him to pluck the coconuts when he reported that he did not know to climb the tree, yet they compelled him to pluck the coconuts, since they were required for the Managing Director. For compelling the respondent to do the work mentioned above, the two employees were punished. As a person doing same regular jobs as well as odd jobs commanded by his superiors, he has to oblige them. Whether really the Managing Director wanted the coconut or not is not the question that has to be considered here. Annamalai and Pattabiraman were not examined before the Commissioner. Therefore, the statement of the respondent is uncontroverted. There is no cross examination also about the statement of the applicant that apart from the building work grass cutting, machine cleaning he used to do odd jobs whenever commanded. The respondent has also stated in his evidence that during the holidays also he would be called for civil work and if he failed to attend the work, he would be removed from service. If the respondent was not engaged on the particular day in any work, there was no necessity for marking his attendance by the time-keeper. Since his attendance is marked by the time-keeper, it means that he attended the work on that day. Further, there is also evidence that other workers like Pattabiraman, Annamalai and Karuppiah were there in the mill premises. In exhibit R-6, which is the enquiry report with finding, in paragraph 2, there is a statement, which reads as follows :
'According to the management, May 7, 1982, was a full holiday for the mills on account of Chitra festival and the mill did not work on that day. However, as per practice, watchman, electrical workers, one for each shift, were on duty. Further, the time office also worked with one clerk for each shift. These facts are admitted facts, and not disputed by either side. It would appear that one Selvam, who was working in the mill in the civil department, as a causal coolie was standing near shop on the road in front of the mills on May 7, 1982.'
12. From the above, even though May 7, 1982 was a holiday, some employees were engaged in their work. It is clear that on May 7, 1982, the respondent attended the work and he had climbed and plucked the coconut as requested by Annamalai and Pattabiraman. The respondent had to do the work because he was informed that the coconuts were necessary for the Managing Director. As stated earlier, whether the Managing Director really wanted the coconut or not is not the question that has to be decided here. The fact remains that the respondent had to attend to the work in connection with his employment. Therefore, in our view, the finding of the Commissioner for Workmen's Compensation that the respondent has not sustained injury in the course of his employment is not correct. Even though the learned single Judge has not dealt with the evidence part in respect of this finding, he has stated that evidence ought not to have been brushed aside and it should have been accepted. Only thereupon, the learned single Judge found that the accident was during the course of the employment and, therefore, the respondent was entitled for compensation. In our view, the finding of the learned single Judge is correct.
13. For the foregoing reasons, we are of the view that there is no necessity for interfering with the judgment of the learned single Judge of this Court. Hence, the Letters Patent Appeal is dismissed. However, there will be no order as to costs.
14. After delivering the judgment, learned counsel for the respondents represents that his clients have furnished security in the form of immovable properties to comply with the conditions imposed for withdrawing the amount. In view of the fact that the respondent have succeeded in the above appeal, they are entitled to have the properties released from the undertaking given. It is ordered accordingly.