S.S.SANDHAWALIA, J.

1. The true import of the definition of a workman in S.2(1)(n) of the Workmens Compensation Act, 1923 and in particular the impact of the exclusionary clause therein -- "other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employers trade or business" - was the ticklish question which necessitated this reference to the Full Bench. Equally at issue was the correctness of the earlier view of the Division Bench in 1973 Pat LJR 287 (Jasimuddin V/s. Mst. Hajiza Bibi).

2. The facts lie in a narrow compass and, indeed, in the context of the proviso to S.30(1) of the Workmens Compensation Act (hereinafter to be referred to as the Act) providing that no appeal shall lie against an order unless a substantial question of law is involved therein, they pale into relative insignificance. Nevertheless the basic terrafirmd of the matrix thereof giving rise to the issue aforesaid, has to be necessarily noticed albeit with brevity. The appellant Most. Motijhari Devi claims to be the wife of late Rameshwar Bind and had preferred the application for compensation in her alleged capacity of being his sole legal heir. It was her case that Rameshwar Bind abovesaid was employed by respondent Bindeshwari Prasad Chourasia for nearly fourteen and half months prior to the 17th of Sept. 1975 first for carrying building materials from the market place to the site and later in the construction of the residential house of the respondent. It was alleged that the deceased had asked the respondent to supply adequate building materials, which was not done and on the 17th of Sept. he fell from the machaan in the course of the construction of the house of the respondent and suffered injuries to which he succumbed later at that Patna Medical College Hospital. The appellant served notice on the respondent under S.10(2) of the Act which was refused by him leading to the proceeding before the Commissioner under the Act.

3. In his written statement the respondent took up the plea that the case as framed was not maintainable and categorically denied the employment of Rameshwar Bind for fourteen and half months and instead the plea was that he was a purely casual worker brought by the mason Butan Rai and had worked in the house for paltry four days only. It was the case that Butan Rai, mistry, used to pick up labourers from the Shesh Mahal Chawk in Arrah town and the deceased was so engaged only four days prior to the accident in construction of the building which had started only a week ago. In terms it was pleaded that the deceased was not a workman as defined in the Act. The allegations of fact made on behalf of the applicant were categorically controverted.

4. The learned Commissioner formulated the paints which arose for determination as under :-

"(1) Whether the death due to accident arose during and in the course of employment of the workman ?

(2) Whether the workman was in the employment of the opposite party for a period of 141/2 months so as to qualify him for compensation ?

(3) Whether the applicant is the widow of Rameshwar Bind and legal heir of her deceased husband ?"

On a detailed discussion of the evidence he held on point No. 1 that on the fateful day the workman fell down and died, but the fact that he was a workman and was in course of employment as a workman to qualify for compensation was not proved on the record. On point No. 2, the Commissioner held that the story of the applicant that Rameshwar Bind was working an a monthly salary and that also for 14 1/2 months for masonary work had not at all been proved. On the contrary, he found that the deceased was a casual worker who was working as a labourer with mason Butan Rai Mistry. Consequently, he was not a workman as defined in the Act so as to qualify him for compensation. On what now turns out to be the crucial point No. 3 the Commissioner held that the appellant had not been able to even remotely prove her