Hon’ble Sudhir Agarwal, J.—This writ petition has been filed on behalf of State of Uttar Pradesh through Secretary, Department of Home Affairs and two others aggrieved by the order dated 23rd February, 2006 passed by Deputy Labour Commissioner (Prescribed Authority) Azamgarh in the capacity as Workmen Compensation Commissioner (hereinafter referred to as “Commissioner”) deciding the preliminary objection regarding maintainability of Workmen Compensation Case before. The petitioners contended that “Fire Department” and its employees are not within the purview of Workman Compensation Act, 1923 (hereinafter referred to as “1923 Act” and the Fireman of U.P. Government Fire Department is not a “Workman”. The commissioner has decided the two issues against petitioners.

2. The Commissioner has held that employees of Fire Department are not members of Police Force in view of the definition of “workman” under Section 2(n)(ii) read with entry (xi) Schedule 2 of 1923 Act and a person employed in the service of Fire Brigade would be a “workman” and therefore it has jurisdiction to proceed with the matter.

3. Learned Standing Counsel vehemently contended that the members of U.P. Fire Department are governed by the provisions of United Provinces Fire Service Act, 1944 (hereinafter referred to as “1944 Act”) read with the rules framed thereunder and hence the provisions of 1923 Act would not cover them. The Commissioner has held otherwise holding the application filed by respondent No. 2 maintainable and has directed to proceed with the matter after impleading the State of U.P. also as one of the respondent.

4. The sole question raised before this Court is “whether respondent No. 2 is a “workman” within the meaning of Section 2(n) of 1923 Act and petitioners “employer” within the meaning of Section 2(e)of the said Act and also “whether the said Act would apply to the members of service of United Provinces Fire Service”.

5. The earliest provision in respect to the maintenance of a team of persons for controlling fire in public or private premises etc. was made by the Provincial Legislature in U.P. Municipalities Act, 1916 (Act No. 2 of 1916). This Act received assent of Lieutenant Governor of U.P. on 11th May, 1916 and of the Governor General on 15th June, 1916 and published in the Gazette under Section 81 of the Government of India Act, 1915 on 24th June, 1916. Sections 187 and 188 thereof provides for establishment and maintenance of “Fire Brigade” and the power of Fire Brigade and other person for suppression of fire. The provisions are quoted as under:

“187. Establishment and maintenance of fire brigade.—The Board may establish and maintain a fire brigade and may provide any implements, machinery, or means of communicating intelligence which it thinks necessary for the prevention and extinction of fire.

188. Power of fire brigade and other persons for suppression of fires.—(1) On the occasion of a fire in a municipality any magistrate, any member of the board, the executive officer, the engineer or a secretary of the board, or any member of the fire-brigade directing its operations and (if required so to do by a magistrate, a member of the board, the executive officer, the engineer or a secretary of the board) any police officer, above the rank of constable, may—

(a) remove, or order the removal of, any person who by his presence interferes with or impedes the operations for extinguishing the fire or for saving life or property ;

(b) close any street or passage in or near which a fire is burning;

(c) for the purpose of extinguishing the fire, break into or through or pull down, or cause to be broken into or through or pulled down or used for the passage of houses or other appliances, any premises ;

(d) cause cause mains and pipes to be shut off as to give great pressure of water in or near the place where the fire has occurred ;

(e) call on the person in charge of a fire-engine to render such assistance as may be possible ; and

(f)