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Miscellaneous Appeal No. 12 of 1965, decided on 27th April 1967.

, S. I2(I) Requirements.

It is clear that in order to bring a case within section 12(1) of the Act the workman must prove: (a) that the principal in the course and for the purposes of his trade or business entered into a contract with the contractor; and (b) that the work the subject‑matter of the contract with the contractor, was work which ordinarily formed the whole or part of the trade or business of the principal.

Rabia Mohammad Tahir v. G.1. P. Railway A I R 1929 Born. 179 ref.

S. M. Ghosh v. National Sheet and Metal Works Ltd. and another A I R 1950 Cal. 548 eel.

, S.30‑--Appeal under S. 30 competent only when substantial question of law involved‑Question whether in face of evidence temporary disability is proved‑Question of fact‑Finding of lower Court not interfered with.

Nasir A. Zahid for Appellants. S. A. Channa for Respondent.

Date of hearing : 24th April 1967.

This appeal under section 30 of the Workmen's Compensa tion Act, 1923 (hereinafter referred to, as the Act) is directed against an order passed by the learned Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act, Karachi, on the 14th of November 1964, allowing compensation to the respondent Deva on account of injuries sustained by him while repairing the roof of the Godean Cinema owned by the appellant. This Court for determining whether the applicant was a workman within section 2 (1) (n) of the Act and whether there was any evidence regarding the disability suffered by the applicant had remanded the case to the learned Commissioner. The learned Commissioner was directed to examine further evidence on this last question. In the order under appeal the learned Commissioner has held, relying upon Aftab Flour and Allied Industries Ltd. v. Mst. Nasim Akhtar that the respondent Deva was a workman within the definition of that term, as the work of repairing of the roof .of the Cinema was an important part of the trade and business of the Cinema House. On the second question the learned Commissioner recorded the evidence of Dr. Siddiqui who had previously issued a medical certificate to the respondent, and of Dr. Colonel Asia Khan. After discussing the evidence he held that the applicant had suffered temporary disability from the date of accident, i.e. the 19th of May 1960, till the 14th of May 1964 and accordingly compensation was awarded at the rate of Rs. 30 per fortnight, the aggregate amount being Rs. 2,880 plus medical charges in the amount of Rs. 16.

2. In the present appeal it is contended by the learned counsel for the appellant that the question in this case is not merely whether the applicant before the learned Commissioner was a workman within the definition of that term as contained in section 2 (1) (n) of the Act, but also whether the requirements of section 12 of the Act are present, as it is clear that the respondent was employed by a contractor to whom the work of repairing the roof had been given by the appellant. It was contended that the work of repairing the roof was not "ordinarily part of the trade of business" of the appellant and, therefore, the case was not covered by section 12 of the Act. It was further, submitted by Mr. Nasir Zahid that the finding of the learned Commissioner regarding the temporary disability suffered by the respondent was based on no material whatsoever, as medical evidence showed that the respondent did not suffer any disability.

3. During the course of arguments the learned counsel for the appellant conceded that the respondent was entitled to be regarded as a workman within the definition of that term as contained in clause (n) of subsection (1) of section 2 of the Act and, therefore, nothing more need be said on this part of the case. It was, however, contended that the authority on which the learned Commissioner had placed reliance related only to the definition of the term "workman" and did not deal with the question of the application of section 12 of the Act. The learned counsel referred to two cases from the Indian Jurisdiction, namely, Rabia Mohammad Tahir v. G. I. P. Railway (A I R 1929 Bom. 179) and S. M. Ghose v. National Sheet and Metal Works Ltd. and another (A I R 1950 Cal. 548.) in support of his contention that in order to bring a case within the ambit of subsection (1) of section 12 it has to be shown that the work on which the workman was engaged at the time of suffering injury was ordinarily part of the trade or business of the principal, and only then can the principal be held liable to pay compensation. In the first mentioned case the G. I. P. Railway, in connection with the electrification of their line, were building a power station and constructing a transmis sion line to carry electric power to various sub‑stations on the railway. The work of constructing this transmission line had been entrusted on a contract to a firm and the deceased was employed by that firm as a fitter. His work was to assist in the erection‑of the steel towers which were to carry the overhead cable. These towers were ‑not erected on the railway track but on land adjacent thereto, the distance from the railway line varying from 400 to 700 feet. While carrying material from the store to the site of the work the deceased was knocked down by a train and killed. These steel towers were to be used for carrying the overhead cable from the Kalyan Powar Station to various sub‑stations on the railway, and the cable line was to be used for supplying sub‑stations and not for supplying electric current direct to the train as it proceeded along the running track. It was held by the learned Judges that the construction of the original works which would be necessary to convey electric power to the locomotives was not part of the ordinary trade or business of the G. I. P. Railway within section 12 of the Act. It was observed that the ordinary business of the Railway was that of public carriage of passengers and goods and not that of electrical engineers or of contractors for power stations or towers or cables or the general electrification of a railway line. The main judgment in this case was delivered by Marten, C. J. but Murphy, J. gave his own reasons while concurring with the learned Chief Justice, and observed that "the ordinary trade or business of the Railway administration is the carriage of passengers and goods, and the maintenance of line necessary for this purpose . . . . . The contractors were carrying out this work as part of their ordinary trade or business" . . . . The stage at which the Railway can use these towers has not yet been reached and until it has been, the Railway administration cannot be said to 'have been connected with this work as part of their trade or business". In the second case, on which Mr. Nasir Zahid has placed reliance, it was observed that where the work done by the workman is not the work which ordinarily forms the whole or part of the work of the principal, the case is not governed by section 12 (1).

4. After hearing the learned counsel for both sides, I find myself in respectful agreement with the view taken in the case of Rabia Mohammad Tahir and followed by the Calcutta high Court in the case of S. M. Ghose. It is clear that in orders to bring a cast within section 12 (1). of the Act the workman must prove: (a) that the principal in the course and for the purposes of his trade or business entered into a contract with ‑the contractor; and (b) (oat the work, the subject‑matter of the contract with the contractor, was work which ordinarily formed the whole or part of the trade or business of the principal. It seems to me that it has to be determined as a question of fact in each case whether both these requirements are fulfilled or not.

5. Coming now to the present case, it is the business of the appellant to exhibit films in the building known as Godean Cinema, and the work of keeping this building in a reasonable state of repairs must be regarded as "ordinarily part of the trade or business of the principal". As clarified by Murphy, J. in the case of Rabia Mohammad Tahir the construction of the electric towers for bringing electric current to the railway sub‑stations may not be ordinarily part of the business of the railway but the maintenance of the towers after their construction, like the maintenance of the railway track, would be treated as ordinarily part of the business of the railway. In the case before me it may not be ordinarily part of the business of the appellant to construct buildings, but the maintenance of their own building, including the repairs to the roof, must be regarded as ordinarily part of their business or trade, as without such maintenance and repairs their business of exhibiting films, etc.,, could not be carried on.

6. It was submitted by Mr. Nasir Zahid that the facts in the case of S. M. Ghose were similar inasmuch as the injured workman was engaged "on painting a factory shed owned by the National Sheet and Metal Works Limited, and yet the learned Judges held that the work which was given on contract by the principal was not ordinarily part of their trade or business. Speaking with the greatest respect to the learned Judges who have decided; that case, I find it difficult to subscribe to the conclusion reached by them, although I have already expressed by respectful agreement with the principles laid down by them regarding the requirements of section 12 of the Act. In my humble view the observations made in the case of Rabia Mohammad Tahir regarding the maintenance of the railway track and of the electric towers after their construc tion as being ordinarily part of the business of the railway appear to be more appropriate and convincing.

7. For the foregoing reasons I am of the view that the work which was let out on contract by the appellant, namely, the work of repairing the roof of the Godean Cinema, was ordinarily part of the trade or business of the appellant as principal and, therefore, this requirement was amply fulfilled. There is, of course, no dispute about the first requirement contained in sub section (1) of section 12, namely, that the work given on contract was for the purpose of the trade or business of the appellant. The case, therefore, clearly fell within the ambit of section 12 of the Act and was rightly decided in accordance therewith.

8. On the, question of the disability suffered by the respondent, I consider that it is not correct to say that there was tat material before the learned Commissioner. There was the evidence of two doctors and it was for the learned Commissioner to come to his own assessment of the disability sutured by the workman in the circumstances of the case. Under section 30 of the Act an appeal is competent only if a substantial question of law is involved. The question whether in tile face of some evidence a temporary disability is proved or not remains a question of fact. As I have already stated, I am not persuaded that there was no material at all for the learned Commissioner to base his finding in this behalf.

9. As a result, the appeal fails and is hereby dismissed with costs.

C. M.S. Appeal dismissed.

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