OM PARKASH BATISHversusRANJIT @ RANBIR KAUR AND OTHERS

                         [2008] 6 S.C.R. 938


A                     OM PARKASH BATISH
                                  II.
            RANJIT @ RANBIR KAUR AND OTHERS
               (Civil Appeal No. 2943 of 2008)
                          APRIL 24, 2008
B
             [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

        Workmen Compensation Act, 1923 - s. 2{n) - Casual
  employee appointed for limited period to carry out repairing
c job in a residential building - Held: Is not a 'workman' under
  the Act since the requirements of law not satisfied - Schedule
  II appended to the Act also not applicable - Only because the
  employee was working in connection with a building activity,
  he would not be included in the definition of term 'workman' -
  High Court in appeal uls 30 erred in granting compensation
D to the employee proceeding on the basis that appreciation of
  evidence would give rise to substantial question of law -
  Appreciation of evidence adduced by the parties per se is out
  of bound of appellate court - It is to frame substantial question
  of law - Hence, order of High Court not sustainable and set
E aside.
       Appellant appointed R-predecessor-in-interest of
  respondents, for sometime to carry out repair work in his
  residential building. When R was on the roof of the
F adjoining building, he got inflicted with the electric shock
  and expired. At that time R was not working under the
  appellant. Respondents filed application for
  compensation under the Workmen Compensation Act,
  1923. The Workmen Compensation Commissioner held
  that the application was not maintainable. Respondents
G filed appeal u/s. 30 of the Act. High Court framed
  substantial questions of law. However, in view of the entire
  evidence it held that R was employed with the appellant
  and the incident occurred in his premises, and awarded              •
  compensation. Hence the present appeal.
H                             938
     OM PARKASH BATISH v. RANJIT@ RANBIR KAUR                939
                   AND OTHERS

t       The question which arose for consideration in this A
    appeal was whether a casual employee who was
    appointed for a limited period to carry out repairing job in
    a building would be a 'workman' within the meaning of
    the provisions of Section 2(n) of the Workmen
    Compensation Act, 1923.                                      B
         Allowing the appeal, the Court
          HELD: 1.1 The ingredients of section 2 (n) of the Act
    as it stood on the date of accident are i) the workman must
    not be employed as a casual workman ;ii) his employment C
    must be in connection with the employer's trade and
    business. However, it is placed on records the words
    beginning from "other than a person whose employment
    is of a casual nature and who is employed otherwise than
    for the purpose of the employer's trade or business" have
    been omitted by Act 46 of 2000. The statutory provision D ·
    as it then stood is considered. [Paras 21 and 22] [947-C,
    G, H; 948-A, B]
           1.2 The Act was amended is itself a pointer to show
      that the Parliament intended to avoid a mischief which E
      was prevailing. Applying the principles of mischief rule, it
      must be held that prior to the amendment of the definition
      of "workman", the category of workman to which
     employee belonged did not come within the purview of
    f
      the provisions of the Act. [Paras 24 and 25] [948-E, F]
                                                                   F
         Heydon's case 1584 (3) Co. Rep. 7a - referred to.
          1.3 Schedule II appended to the Act, is not applicable,
    as it is subject to the provisions of Section 2(1 )(n) of the
    Act. Therefore, if the law as it then stood would exclude
    the applicability of the Act, having regard to the definition G
    of the term 'workman' the same cannot be held to include
    deceased, only because he was working in connection
    with a building activity. Even otherwise, working in a
    residential house does not satisfy the requirements of law.
    In the instant case, the workman was employed for a H
    940      SUPREME COURT REPORTS               [2008] 6 S.C.R.

                                                                   t
A limited period for carrying out repair works in a residential
  house. [Paras 23 and 24] [948-B, C, D]
       2.1 Section 30 of the Workmen Compensation Act,
  1923 provides that an appeal shall lie to the High Court
  on a substantial question of law. A substantial question
B of law, will carry the same meaning as is commonly
  understood. Distinction sought to be made that a
  substantial question of law for the purpose of a first appeal
  and one for a second appeal would be different, cannot
  be accepted. The right to file an appeal is a statutory right.
c The Parliament may not provide such a right at all. The
  right to file an appeal can be hedged with conditions. A
  limited right can also be conferred. A right of appeal under
  the Act is provided, both to the management as also the
  workman. It is difficult to hold that whereas for the
D workman the High Court shall exercise a wider jurisdiction
  but in the event the employer is the appellant, its
  jurisdiction would be limited. The High Court unfortunately
  proceeded on the basis that appreciation of evidence also
  would give rise to a substantial question of law. [Paras
E 13, 14 and 15] [945-B, C, D, E]
        2.2 In a proceeding initiated under the Act the
  provisions of the Code of Civil Procedure or Evidence Act
  are not applicable. The Workmen Compensation
  Commissioner did not deem it fit to go into the question
F as to whether R was a workman or not on the premise
  that the accident did not take place at the premises of the
  appellant. The Commissioner could lay down his own
  procedures. He could for the purpose of arriving at the
  truth, rely upon such documents which were produced
G before it. The statement of the deceased was recorded
  by the police authorities. It could be looked into by the
  Commissioner. [Paras 12, 16 and 18] [945-A, F; 946-D]
         2.3 The entire approach of the High Court as regards
    the correctness or otherwise of the said statement is
H
        OM PARKASH BATISH v. RANJIT@ RANBIR KAUR                941
               AND OTHERS [S.B. SINHA J.]

       wrong. The High Court opined that the Commissioner had         A
       mixed up the proceeding before it with the criminal
       proceedings. He did not. [Para 18] [946-0, E]
             2.4 If the statement of the deceased that the incident
       did not take place at the appellant's place but at the house
....   of his maternal uncle, was admissible in evidence, B
       evidently no case has been made out for initiating any
       proceeding under the Act against the appellant. It was a
       case of pure and simple accident and that too at a place
       over which the appellant had no control. Entering into the
       realm of appreciation of evidence adduced by the parties       c
       per se is out of bound of an appellate court which is
       concerned with determination of a substantial question
       of law. It is one thing to say that the findings of the
       Workmen Compensation Commissioner were perverse
       and in arriving at its findings it failed to take into D
       consideration relevant facts or took into consideration
-~
       irrelevant factors which were not germane for the purpose
       of determining the issue, but whether a witness is
       trustworthy or not, has nothing to do with determining
       the question of perversity. [Para 19] [946-E, H]             E
            CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2943
       of 2008.
            From the Final Order dated .27.9.2005 of the High Court
       of Himachal Pradesh at Shimla in F.A.O. No.64/2001.            F
            J.L. Gupta, Dharamvir Sharma and Tarun Gupta (for Ms.
       S. Janani) for the Appellant.
            Ravi Bakshi and Yash Pal Dhingra for the Respondents.
            The Judgment of the Court was delivered by                G
            S.B. SINHA, J. 1. Leave granted.
  .,         2. Whether a casual employee who was appointed for a
       limited period to carry out repairing job in a building would be
       a'workman' within the meaning of the provisions of Section 2(n) H
    942         SUPREME COURT REPORTS                 [2008] 6 S.C.R.


A   of the Workmen Compensation Act, 1923 (the Act) is the core
    question involved herein.
          3. Appellant is the owner of a residential building. It is
    situated by the side of an industrial establishment known as M/
    s. Chandrika Textiles.
B
          4. On or about 30th June, 1996, the predecessor-in-interest    ,..
    of the respondents, Ram Lal, suffered an accident coming in
    contact with a high tension electrical wire passing over the roof
    of the said Mis. Chandrika Textiles. He suffered injuries as a
c   result thereof. He was shifted to the Post Graduate Institute of
    Medical Research, Chandigarh, where his statement was
    recorded. He expired on 5th July, 1996.

        5. On the premise that the said Ram Lal was a 'workman'
  under the appellant, a proceeding was initiated by the Workmen
D Compensation Commissioner under the Act. In the said
  proceeding the parties adduced their respective evidences.
                                                                         ~.
  One of the contentions raised by the appellant was that the
  accident took place when the said Ram Lal was on the roof of
  the said textile mills and that he had not been working under
E him. It was, however, accepted that he had been working for
  sometime with the appellant for carrying out repair works. It was
  furthermore urged that a casual employee would not be a
  'workman' within the meaning of the provisions of the said Act.
          6. The Workmen Compensation Commissioner framed
F several issues; principal amongst them were:-
          "1.   Whether the deceased Ram Lal was employed as
                workman by the opposite party in the relevant date?
                OPA
G         4.    Whether the application is not maintainable? QPR
       The first issue was answered in the negative. The Workmen
    Compensation Commissioner on issue No.4 held :-
          ,, In the nutshell nothing can be derived from the statement
H         of PW-3 Kamal Chand except that he knew the date of
 OM PARKASH BATISH v. RANJIT @ RANBIR KAUR               943
        AND OTHERS [S.B. SINHA, J.]

     accident i.e. 30-6-1996 at the time which assumably seems A
     to have been after thought only. Therefore both the
     witnesses of the applicants could not prove the alleged
     place of accident whic~ resulted into the death of Ram Lal
     whereas there is sufficient evidence having been admitted
     by Achharpal PW about the site of the accident further B
     having corroboration in the statement of Hamir Chand
     and Anil Kumar RWs who are independent witnesses.
     Thus the entire evidence of respondents is logical which
     goes to show that Ram Lal got shock injuries on the roof of
     the shed of a closed factory owned by late Partap Singh at C
     village Khera on 30-6-1996 as per site plan Ex.RW-3/A.
     Secondly the contention of respondents that deceased
     Ram Lal was not covered under the definition of a workman
     is not required to be discussed here as the relationship of
     employee and worker is not there in this particular case. D
     In view of the above discussion I hereby hold that the
     application in not maintainable as Ram Lal deceased was
     not workman on the relevant date i.e. 30-6-1996 with the
     respondents and he got inflicted by an electric shock at   E
     another place than the alleged one.
     Therefore issue No.4 is decided in favour of the
     respondents and against the applicants."
     7. Respondents herein preferred an appeal thereagainst
before the High Court in terms of Section 30 of the said Act.   F
The High Court framed the following substantial questions of
law.
     "1. Whether the Commissioner has totally failed to
     appreciate the evidence properly and legally and as such   G
     has caused injustice to the appellants?
     2. Whether the Commissioner has wrongly mixed the
     question of criminal proceedings as well as the
     proceedings under the Workmen Compensation Act and
     has given wrong weightage to the police report?            H
    944       SUPREME COURT REPORTS                 [2008] 6 S.C.H.


A         3. Whether the learned Commissioner has wrongly and
          illegally decided issue No.4 regarding maintainability of
          the application?
        8. The High Court proceeded on the basis that although
  an appeal under Section 30 of the Act lies only on a substantial
B questions oflaw, however, total misreading and misappreciation
  of evidence would also give rise to the one. It meticulously went
  into the deposition of the witnesses examined on behalf of both
  the parties. It, for the reasons stated in the impugned judgment,
  did not accept the statement made by the deceased which was
C treated to be the dying declaration on his part.

         9. While holding that there was nothing to disbelieve the
    statement of the widow with regard to the nature of the injuries
  . suffered by Ram Lal in the accident, the deposition of the
    witnesses examined on behalf of the appellant herein was
0
    disbelieved holding :-
                                                                       •
          " Keeping in view the entire evidence and the aforesaid
          discussion I am of the considered view that deceased
          Ram Lal was employed with O.P. Batish and the accident
E         occurred in the premises of O.P. Batish."
         A sum of Rs.1,66,369.50 ps. was awarded in favour of the
    respondents. Appellant was also held liable to pay penalty of
    50% of the said amount i.e. Rs.83, 184. 75 ps.
F        10. Mr. Jawahar Lal Gupta, learned senior counsel
    appearing on behalf of the appellant would submit that there
    being no relationship of employer - employee by and between
    the appellant and the deceased Ram Lal, the impugned
    judgment is wholly unsustainable.
G       11. Mr. Yash Pal Dingra, learned counsel appearing on
  behalf of the respondents, on the other hand, would contend
  that the definition of 'workman' as contained in Section 2(n) of
  the Act must be read with the Schedule II appended thereto. It
  was submitted that only because Ram Lal was a daily wager,
H the same would not mean that he was also a casual workman.
       OM PARKASH BATISH v. RANJIT @ RANBIR KAUR                    945
              AND OTHERS [S.B. SINHA, J.]

            12. The Workmen Compensation Commissioner arrived              A
      at a finding of fact that the accident did not take place at the
      premises of the appellant. It was on the said premise that the
      Workmen Compensation Commissioner did not deem it fit to
      go into the question as to whether late Ram Lal was a workman
      or not.                                                              B
             13. Section 30 of the Act provides that an appeal shall lie
      to the High Court on a substantial question of law. A substantial
      question of law, in our opinion, will carry the same meaning as
      is commonly understood. Distinction sought to be made by Mr.
      Dhingra that a substantial question of law for the purpose of a      c
      first appeal and one for a second appeal would be different,
      cannot be accepted.
            14. The right to file an appeal is a statutory right. The
      Parliament may not provide such a right at all. The right to file
                                                                           D
      an appeal can be hedged with conditions. A limited right can
      also be conferred:
            15. A right of appeal under the Act is provided, both to the
      management as also the workman. It is difficult to hold that
      whereas for the workman the High Court shall exercise a wider        E
      jurisdiction but in the event the employer is the appellant, its
      jurisdiction would be limited. The High Court unfortunately
      proceeded on the basis that appreciation of evidence also
      would give rise to a substantial question of law.
            16. In a proceeding initiated under the Act the provisions     F
      of the Code of Civil Procedure or of the Evidence Act are not
      applicable. The Commissioner could lay down his own
      procedures. He could, for the purpose of arriving at the truth,
      rely upon such documents which were produced before it.
                                                                           G
           17. The incident was reported to the police authorities.
      The Officer lncharge of the concerned police station recorded
...   the statement of deceased Ram Lal. The said statement was
      marked as Ex.RW-5/A, the translated version whereof reads
      as under:-
                                                                           H
    946       SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A         "Stated that I am a resident of aforesaid address and
          have passed matric. I was working in Khera Chak in the
          house of O.P. (Om Parkash) as beldar (daily wager) for
          about 8 days. On 30.6.1996 I had gone to Mama's
          (maternal Uncle's) house at Khera. At about 8.30 in the
B         morning I climbed on to the roof of the factory which is      ,.
          adjacent to the house of my maternal uncle just to watch
          the weather and while away my time, I did not pay attention
          to the high tension wire going above the roof. Suddenly by
          mistake my hand touched the electric wire and thereafter
c         I do not know what happened. This accident occurred due
          to my being electrocuted suddenly. I do not have any
          suspicion on any person. I do not want to start any police
          investigation."
        18. The entire approach of the High Court, with respect,
D as regards the correctness or otherwise of the said statement
  is wrong. The statement was recorded by the police authorities.
  If that be so, it could be looked into by the Workmen
  Compensation Commissioner. The High Court opined that the
  Commissioner had mixed up the proceeding before it with the
E criminal proceedings. He did not.
        19. If the statement of the deceased was admissible in
  evidence, evidently no case has been made out for initiating
  any proceeding under the Act against the appellant. It was a
  case of pure and simple accident and that too at a place over
F which the appellant had no control. Entering into the realm of
  appreciation of evidence adduced by the parties per se is out
  of bound of an appellate court which is concerned with
  determination of a substantial question of law. It is one thing to
  say that the findings of the Workmen Compensation
G Commissioner were perverse and in arriving at its findings it
  failed to take into consideration relevant facts or took into
  consideration irrelevant factors which were not germane for the
  purpose of determining the issue, but whether a witness is
                                                                        .
  trustworthy or not, has nothing to do with determining the question
H of perversity.
       OM PARKASH BATISH v. RANJIT@ RANBIR KAUR                   947
              AND OTHERS [S.B. SINHA, J.]

          20. We may consider the case from another angle. The A
      averments contained in the claim application are as under :-
           " That the deceased Ram Lal S/o. Sh. Ram Rattan R/o.
           Village Palasra, Tehsil Nalagarh, Distt. Solan, H.P. was
           employed as workman for construction work of residential
           building of opposite party in the month of June, 1996. The    B
           deceased Ram Lal had worked with the opposite party
           for 27 days continuously as workman for the repair work
           of shed at village Khera, Tehsil Nalagarh, Distt. Solan,
           H;P."
                                                                         c
           21. The definition of 'workman' as provided in Section 2(n)
      of the Act, as it stood on the date of the incident, reads as
      under:-
           "(n) "workman" means any person other than a person
           whose employment is of a casual nature and who is D
.,.
           employed otherwise than for the purpose of employer's
           trade or business who is-

           (ii) employed in any such capacity as is specified in
           Schedule II,                                                  E

           whether the contract of employment was made before or
           after the passing of this Act and whether such contract is
           expressed or implied, oral or in writing; but does not
           include any person working in the capacity of a member        F
           of the Armed Forces of the Union and any reference to a
           workman who has been injured shall, where the workman
           is dead, include a reference to his dependants or any of
           them.
           The ingredients of the said provisions are -                  G
           i)      the workman must not be employed as a casual
                   workman;
           ii)     his employment must be in connection with the
                   employer's trade and business.                        H
    948       SUPREME COURT REPORTS                    [2008) 6 S.C.R.


A      22. We must, however, place on record that the words
  beginning from "other than a person whose employment is of a
  casual nature and who is employed otherwise than for the
  purpose of the employer's trade or business" have been omitted
  by Act 46 of 2000. We are, however, considering the statutory
B provision as it then stood.
          23. The workman in the present case was employed for a
    limited period for carrying out repair works in a residential house.
    The same does not, thus, answer the description of a workman
    as contained in the provisions of the Act.
c
        24. Schedule II appended to the said Act to which reference
  was made·by Mr. Dhingra, in our opinion, is not applicable, as it
  is subject to the provisions of Section 2(1 )(n) of the Act. If,
  therefore, the law as it then stood would exclude the applicability
  of the Act, having regard to the definition of the term "workman"
D
  the same cannot be held to include deceased, only because he
                                                                           "1
  was working in connection with a building activity.
          Even otherwise, working in a residential house does not
    satisfy the requirements of law.
E        25. We must also bear in mind that the very fact that the
    Act was amended is itself a pointer to show that the Parliament
    intended to avoid a mischief which was prevailing.
       Applying the principles of mischief rule [ Heydon's case
F (1584) 3 Co. Rep. 7a], it must be held that prior to the
  amendment of the definition of "workman", the category of
  workman to which Ram Lal belonged did not come within the
  purview of the provisions of the said Act.
       26. For the reasons abovementioned the impugned
G judgment cannot be sustained, which is set aside accordingly.                   ....
  The appeal is allowed with no order as to cost. However, the
  amount paid to the respondents by the appellant, if any, shall           ....
  not be recovered.
    N.J.                                             Appeal allowed.
H