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First Appeal No. 42 of 1952, decided on 3rd March 1953 from the order of Muhammad Sadiq, Commissioner at Lahore, dated the 29th July 1952, under Workmen's Compensation Act (VIII of 1923).

Sch. 11, cl. (ii)‑Includes all persons, whether technical hands or not, who are not employed in clerical capacity‑Peon with a pay of Rs. 50 p. m.‑Workman.

Other condition, being satisfied all employees are inten ded to fall within the ambit of clause (ii) of Schedule II unless they are employed in a clerical capacity. Had the intention of the Legislature been that the second clause of Schedule II was to apply only to technical workers as distinct from non‑techni cal ones, one would have found that intention expressed in words.

Abdur Rashid (employed as peon by defendant) deceased fell within the ambit of clause (ii) of Schedule II of the Workmen's Compensation Act and as his salary was Rs. 50 a month he was a workman within the meaning of the expres sion as used in that Act.

S. 30---- Appeal‑Question of Law‑--Whether accident arose out of crud in course of employment of workman‑Peon riding bicycle carrying dak front factory to head office meeting with accident with a tonga.

If the facts are admitted, and the only question to consider is whether the accident arose out of and in the course of the employment of the workman, the question to be determined is not a question of fact but one of law.

Dennis v. A. J. White 8c Company 1917 A C 479 ref.

Where a peon riding a bicycle and carrying dak from the factory to the head office met with his death in accident with a tonga.

Held, that the accident arose out of and in course of employ ment of the deceased.

Muhammad Abu Bakar for Appellant.

Gul Muhammad Butt for Respondents.

Abdur Rashid, who was employed as a chaprasi by Messrs Kaycee Industries, Lahore, met with a fatal accident when carrying the company's dak on a bicycle on the 28th of December, 1951. The death of Abdur Rashid resulted instantaneously when his bicycle collided with a tonga. Mst. Nawab Bibi, Safdar Ali minor through his mother Mst. Nawab Bibi, Mst. Begum and Sultan Muhammad son of Allah Ditta claiming to be the dependents of Abdur Rashid put in a petition against Messrs Kaycee Industries Limited under section 3 of the Workmen's Compensation Act (VIII of 1923) for grant of compensation under the Act with regard to the death of Abdur Rashid. Messrs Kaycec Industries Limited denied their liability on various grounds and on the pleadings of the parties the learned Commissioner framed the following issues:‑

1. Was Abdur Rashid deceased, a workman within the meaning given to it by the Workmen's Compensation Act

2. If so, what were his monthly wages at the time of accident

3. Are petitioners dependents of the workman and entitled to receive compensation

4. To what amount of compensation are petitioners entitled

The Commissioner found issue No. 1 in favour of the claimants. With regard 'to issue No. 2 the finding was that the monthly wages of Abdur Rashid at the time of his death were Rs. 50 per month. On issue No. 3 it was held that only Mst. Nawab Bibi and Safdar Ali minor were the dependents of Abdur Rashid and with regard to issue No. 4 it was found that the claimants were entitled to Rs. 1,500 in all as compensation. Out of this compensation Rs. 175 was directed to be paid to Mst. Nawab Bibi, the widow of Abdur Rashid, while Rs. 1,325 was ordered to be deposited in the Central Co‑operative Bank in the name of Safdar Ali minor. The Kaycee Industries Limited, dissatisfied with the order of the Commissioner, have presented this appeal.

The first question raised by the learned counsel for the appellant was that Abdur Rashid deceased was not a work man within the meaning of the Workmen's Compensation Act, 1923, and, therefore, no compensation could be awarded to his dependents under that Act. The answer to this ques tion depends on the construction of the definition of the word "workman" in the Act. This definition occurs in clause (n) of section 2 (1) of the Act, the relevant part of which clause reads as follows:‑

"(n) workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is‑

(i) ............

(ii) employed on monthly wages not exceeding four hund red rupees in any such capacity as is specified in Sche dule II."

The learned Commissioner in corning to his conclusion that Abdur Rashid was a workman has relied on clause (ii) of Schedule II of the Act which is in the following terms:--

"(ii) employed otherwise than in a clerical capacity, in any premises wherein, or within the precincts whereof, on any one day of the ,preceding twelve months, ten or more persons have been employed in any manufacturing process as defined in clause (g) of section 2 of the Factories Act, 1934 (XXV of 1934), or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water, or other mechanical power or electrical power is used."

The learned counsel for the respondents argued that Abdur Rashid would also fall with in clause (iii) Schedule II of the Workmen's Compensation Act which reads as follows:‑

"(iii) employed for the purpose of making, altering, repairing, ornamenting, finishing or otherwise adapting for use, transport or sale any article or part of an article in any premises wherein or within the precincts whereof on any one day of the preceding twelve months, fifty or more persons have been so employed."

The learned Commissioner has found as a fact on the evidence led by the parties that nearly 120 men work in the appellant factory in which electric power is used for working the factory, and that the duties of Abdur Rashid were to carry dak from the factory to the head office on the Mall Lahore and to get the finished goods of the appellant company booked at the railway station for outside consignment. These findings on questions of fact are binding in appeal, because section 30 of the Workmen's Compensation Act provides that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. But if the findings are not binding on me, I do not think they are open to any objection. The learned counsel for the appellant contended that even if it be assumed that a person working the manufacturing proces ses undertaken by the appellant at its factory would be a workman, Abdur Rashid deceased could not be held to be a workman, because lie had nothing to do with the manufactur ing processes of the factory. It has been found that the salary of Abdur Rashid deceased was Rs. 50 a month and that he did no clerical work. Prima facie, therefore, Abdur Rashid fell within the definition of "workman" as given in section (2) (I) (n) read with clause (ii) of Schedule II of the Workmen's Compensation Act. The learned counsel for the appellant contended, however, that the expression "clerical capacity" occurring in clause (ii) of Schedule II was not intended to make the clause applicable to all persons working in a factory except those who did clerical work but was inten ded to draw a distinction between employees engaged on manufacturing processes and those not so employed, but could cite no authority in support of his contention. It is one of the principles of interpretation of statutes that the Legislature is presumed to have expressed its meaning by the words used by it. Applying that principle to clause (ii) of Schedule II, I have arrived at the conclusion that other conditions being satisfied, all employees were intended to fall within the ambit of clause (ii) of Schedule II unless they were employed in a clerical capacity. Had the intention of the Legislature been that the second clause of Schedule II was to apply only to technical workers as distinct from non‑technical ones, one would have found that intention expressed in words. I would, therefore, hold that Abdur Rashid deceased fell within the ambit of clause (ii) of Schedule II of the Workmen's Compensation Act and as his salary was Rs. 50 a month he was a workman within the meaning of that expression as used in that Act. In view of this finding it is not necessary for me to consider the argument of the learned counsel for the respondents that Abdur Rashid would also be a workman within clause (iii) of Schedule II of the Act.

The next contention of the learned counsel for the appel lant was that no compensation could have been awarded for the death of Abdur Rashid, because the learned Commissioner has not given a finding that the accident which was the cause of the death of Abdur Rashid arose out of and in the course of his employment. For this contention the learned counsel for the appellant placed his reliance on section 3 of the Act, the relevant part of which reads as under:‑

"3 (1). If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall he liable to pay compensation in accordance with the provision of this Chapter .."

The contention of the learned counsel for the appellant that the learned Commissioner had not given a finding as to whether the fatal accident arose out of and in the course of the employment of Abdur Rashid is correct, but the question to consider is whether section 30 of the Act does, as was contended during arguments, debar the High Court in the circumstances of the ease from giving a finding one way or the other on the matters dealt with by section 3 of the Act. It appears to me that if, as in the present case, the facts are admitted, and the only question to consider is whether the accident arose out of and in the course of the employment of the workman, the question to be determined is not a question of fact but one of law. In this view, I receive some support from a decision of the House of Lords in Dennis v. A. .J. White and Company (1917A C 479).

I will now proceed to consider whether or not the accident arose out of and in the course of the employment of Abdur Rashid deceased. It is not denied (and in fact it could reason ably not have been) that when taking dak from the factory for delivery at the head office of the appellant Abdur Rashid was acting in the course of his employment and that delivery of dak was one of his duties. It was, however, urged by the learned counsel for the appellant that the accident did not arise out of the employment of Abdur Rashid and, there fore, section 3 of the workmen's Compensation Act was not applicable. In support of his contention, the learned counsel for the appellant relied on A I R 1947 Rang. 45, A I R 1940 Rang. 18 and P L D 1952 Lah. 85. The facts in the cited Lahore case were so entirely different from those in the present one that I do not think that case has any relevancy. In A I R 1937 Rang. 45, an elephant rider while taking a message of the owner to some other person was mauled by a bear and it was held by a Division Bench that in order to determine whether or not a person was a workman for the purposes of the Workmen's Compensation Act, his occupation at the time when he met with the accident has to be considered, and reliance was placed on A I R 1930 Born. 44 and A I R 1929 Mad. 698. On that principle the learned Judges held that as the person because of whose death compen sation was claimed was an elephant rider but was at the time of the fatal accident employed as a mere messenger and not as an elephant rider he ceased to be a workman for the purposes of the Workmen's Compensation Act, and his dependents were not entitled to any compensation. The facts of the case dealt with in A I R 1937 Rang. 45 are so different from those of the present case that the precedent case can be of no assistance. In A I R 1940 Rang. 18, it was held that an accident arises out of the employment of the workman if it results from a risk incidental to the employ ment, as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind. The facts of that case were that when the workman who was employed for cutting and clearing jungles and bushes or even trees, was going back to his camp in the mining area where he was working, a dead tree which was at some distance from where he had actually to work, fell on him and killed him. On these facts it was held that the falling of the tree on the deceased could not be held to be inherent in the nature of his employment and the casual relationship between the employment and the falling of the tree could not be properly inferred. This case has no relevancy, because it appears to me that the risk of being run over by a tonga which Abdur Rashid deceased ran was inherent in his employment. In this connection I might refer to the decision of the House of Lords in Dennis v. A. J. White & Company (1917 A C 479) in which their Lordships considered the question not materially different to the one that arises here. A boy, who was employed by a firm of builders was ordered to go through the streets of London on a bicycle to fetch some plaster, met with his death and on the question whether or not the death of the boy arose out of and in the course of his employment the principle, as the headnote would show, was stated in the following terms:‑

"Where a workman is sent into the streets on his em ployer's business, whether habitually or occasionally, and whether on foot or on a bicycle, or on an omnibus or a car, and he meets with an accident by reason of a risk of the streets to which his employment exposes him, the accident arises out of as well as in the course of his employment; and it is immaterial that the risk which caused the accident is one which is shared by all members of the public using the streets under the like conditions."

The case I am considering is not in any material way different from the case in which the above remarks were made and the above quoted remarks are fully applicable. I hold, therefore, that the accident as a result of which Abdur Rashid died arose out of and in the course of his employment within section 3 of the Workmen's Compensation Act.

No other point was urged by the learned counsel for the appellant and as those raised by him have, in my view, no substances, I dismiss the appeal with costs.

A. H. Appeal dismissed.

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