Judgment:
C.V. Govardhan, J.
1. The opposite party before the Commissioner for Workmen's Compensation, Salem, in W.C. No. 342 of 1992 has preferred this appeal aggrieved over the award passed by the Commissioner granting a sum of Rs. 27,625/- payable by the opposite party to the applicant.
2. The applicant's case is that he was a worker in the sugar-cane crusher of the opposite party and on 24.6.1992, his left hand fingers were caught inside the crusher and four fingers except thumb were crushed resulting in a permanent disablement and that he was receiving wages of Rs. 30/- per day and has prayed for compensation.
3. The opposite party in his counter statement has contended that he was a Government employee working as a teacher in the Panchayat Union Elementary School at Thippampatty village, that he does not own any crusher and the applicant was not an employee under him and hence he is not liable to pay any compensation.
4. The Commissioner for Workmen's Compensation, who held an enquiry, gave a finding that the applicant is a workman as per the definition of the Act and the accident arose in the course of the employment under the opposite party and, therefore, he is entitled to a compensation of Rs. 21,6251- and has passed the impugned order.
5. Aggrieved over the same, the opposite party has come forward with this appeal.
6. The learned Counsel appearing for the appellant has argued that the applicant was not a worker under him as defined under the Workmen's Compensation Act and he was not employed by him for the purpose of crushing sugar-cane in the crusher and, in fact, he does not raise sugar-cane in his field and does not own any crusher and yet the Commissioner for Workmen's Compensation has held that the applicant was a worker under him, that the accident happened during the course of the employment and awarded the compensation and it has to be set aside.
7. The learned Counsel appearing for the respondent would, on the other hand, argue that the appeal itself is not maintainable on the ground that there is no question of law involved in the case before the Commissioner for Workmen's Compensation and the appeal is therefore misconceived and it is liable to be dismissed.
8. The learned Counsel appearing for the appellant would argue that it is his specific case that he does not raise sugarcane in his field and that he does not own any sugar-cane crusher and actually he was employed as a teacher in a school which is about 140 kms. away from the suit village and yet the Commissioner has held that the applicant has got his hand crushed in the crusher while he was under the employment of the appellant herein and it has to be set aside. According to the learned Counsel appearing for the appellant, the adangal extract produced by the appellant would show that the respondent was raising sugar-cane in his field fot fasli 1401 and he has not raised any sugar-cane and he does not own any sugar-cane crusher and these facts have not been considered by the Commissioner for Workmen's Compensation and it is a wrong conclusion that the applicant was a worker under him. Exh. B-1 is the chitta extract in respect of patta No. 101 in the name of the appellant showing the extent of the lands owned by him. Exh. B-2 is the adangal extract fot fasli 1401 which shows that the appellant has raised sugar-cane in his lands in S. Nos. 44/B4 and 44/B6. The attention of the court was also drawn by the learned Counsel appearing for the appellant that AW 2 could not have witnessed the accident since it is his specific case that on hearing the noise he went and saw the applicant involved in an accident and that AW 2 has stated that the applicant was taken to the hospital by the son of the opposite party while it was suggested to the opposite party that he had taken the applicant to the hospital and all these pieces of evidence would show that the claim of the appellant that he was involved in an accident while employed as a workman under the opposite party has to be rejected. After bringing these facts, on evidence, to the notice of the court, the learned Counsel has drawn the attention of this Court to the decision reported in Managing Director, O.R.T. Co. Ltd. v. S. Rama Mohan Rao 1988 ACJ 184 (Ori), wherein it has been held that if a finding is arrived at, unsupported by any material, it would be a surmise and would thus be a question of law to be examined by the court under Section 30 of the Workmen's Compensation Act. In the above decision, it is also held that when the materials on record would not reasonably lead to the finding of the fact, a question of law would arise and that similarly, where material piece of evidence has not been taken into consideration, if considered, would negative the finding of fact, a question of law would arise and that misreading an evidence will also be a question of law. When we consider the evidence to which the attention of this Court was drawn by the learned Counsel appearing for the appellant, I am of the opinion that even though whether a person is a workman or not, is a question of fact on which there can be no appeal, yet, it cannot be held that the appeal is misconceived on account of the fact that the finding of the Commissioner for Workmen's Compensation appears to have been arrived at by unsupported material and the materials on record do not lead to the finding of the fact that the applicant was an employee or workman under the opposite party. The failure of the Commissioner for Workmen's Compensation to consider the adangal of the respondent and the failure of the respondent to produce any adangal of the applicant and also the discrepancy between the evidence of AW 2 and the suggestion put to the opposite party with regard to the person who has taken the applicant to the hospital, we have to necessarily come to the conclusion that if these facts are considered properly, it would negative the finding given by the Commissioner that the applicant is a worker. Even though the said finding is a fact, it gives room for a question of law being raised as per the decision reported in Managing Director, O.R.T. Co. Ltd. v. S. Rama Mohan Rao (supra).
9. The learned Counsel appearing for the respondent would, on the other hand, argue that the question whether the relationship between the parties is one as between the employer and employee or between master and servant, is a pure question of fact and the decision of the Commissioner on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution of India. The learned Counsel appearing for the respondent would also argue that misappreciation or absence of evidence vitiating the order under appeal cannot be brought within the scope of the first proviso to Section 30 of the Workmen's Compensation Act and no appeal will lie where there is no substantial question of law involved and relies upon the decision reported in Pandian Roadways Corporation Ltd. v. Labour Court (1994) 1 LLN 828, a case arising under the Industrial Disputes Act. Since the above decision not having been rendered under the Workmen's Compensation Act, I am of opinion that it cannot deprive the appellant of his right to file this appeal.
10. The phrase 'substantial question of law' as used in the proviso to Section 30(1) of the Workmen's Compensation Act, must be given a wider construction than is to be attributed to it under Section 110 of the Code of Civil Procedure. When such a wider construction is given, I am of the opinion that the finding of the Commissioner for Workmen's Compensation that the applicant is a worker cannot be said to be a mere question of fact and not a question of law. It is not a mere sufficiency or insufficiency of the evidence placed before the Commissioner. It is a total lack of appreciation of the evidence placed before the Commissioner since the order does not refer to Exh. B-2 or the oral evidence. Therefore, I am of opinion that the right of the appellant to file this appeal when he is aggrieved over the order passed by the Commissioner for Workmen's Compensation cannot be curtailed or deprived to him on the ground that the finding of the Commissioner is a question of fact and not question of law. But, at the same time, I wish to observe that the appeal need not be allowed on that ground. I am of the opinion that it is a fit case in which, a direction has to be given to the Commissioner for Workmen's Compensation to consider the oral and documentary evidence placed before him and then give a specific finding on both the points raised before him for adjudication and then decide the matter afresh.
11. In the result, the appeal is allowed. The matter is remanded to the Commissioner for Workmen's Compensation to decide the matter afresh after considering the oral and documentary evidence placed before him in detail. No costs.