The central legal point established in the judgment is the requirement for the workman to be under the employment of the respondent/factory as specified in Schedule-II of the Workmen's Compensation Act.

Per B.C. KANDPAL, Actg. C.J.

This appeal under Section 30 of Workmen's Compensation Act, has been preferred against the Judgment and award dated July 10, 2006, passed by the Commissioner Workmen's Compensation/Deputy Labour Commissioner, Uttaranchal, Haldwani in W.C.A. No. 49/2002, Ram Bahadur and Another v. Sharda, Leesa Factory.

2. Brief facts of the case giving rise to this appeal are that the appellants/claimants filed claim petition before the Workmen's Compensation Commissioner/Deputy Labour Commissioner, Haldwani for the death of Thakur Das occurred during the course of his employment under the respondent/Sharda Leesa Factory. According to the claimants Thakur Das died on August 20, 2002 due to the accident occurred on August 18,2002 while he was working under the employment of the respondent. At the time of the accident Thakur Das was 21 years of age and he was being paid Rs. 150/- per day wages by the respondent/factory.

3. On the claim application notice was issued to the respondent/Sharda Leesa Factory. As the employer did not file written statement in the claim petition the petition was ordered to proceed ex parte against the respondent vide order dated April 30, 2003. However, the respondent filed application dated May 29, 2003 for setting aside the order for proceeding the case ex parte against it, which was allowed by the trial Court and thereafter the respondent/Factory filed its written statement denying the allegations made in the claim petition. The respondent/Factory has denied the employment of the deceased Thakur Das with it. However it has been contended in the written statement that the respondent asked the R.K. Electrical situated at Panchakki Chauraha Kathgodam to replace the electric bulb by fixing electric tube in the Factory premises. Son of R.K. Electrical came to the factory premises to fix the electric tube and on the start of the work he suddenly fell down and got injured. It has further been alleged that the deceased was studying in B.Com. I year as regular student and he also used to work in his Electric Shop. He was not employed under the respondent/factory and he was never paid Rs. 150/- per day as wages by the Factory as there was no relationship of workman and employer between the deceased and the Factory. Hence prayer was made for dismissal of the claim petition.

4. Thereafter the claimants in support of their claim adduced documents and also got examined Ram Bahadur, as P.W.1 and Anand Singh, as P.W.2. The oppositelparty also filed 5 documentary evidence) and examined Alok Sharda and Narendra Pal Singh.

5. The Workmen's Compensation Commissioner after having considered the entire material available on record and hearing o learned counsel for the parties came to the conclusion that the deceased Thakur Das was not in the employment of the respondent/factory, hence he does not come within the definition of the workman. The Workmen's Compensation Commissioner accordingly dismissed the claim petition vide judgment and award dated July 10, 2006.

6. Feeling aggrieved by the aforesaid Judgment and award the appeal under Section 30 of the Workmen's Compensation Act 1923 has been preferred by the representatives of the deceased before this Court.

7. At the time of the admission of the appeal the following substantial, questions of law were framed in the memo of appeal:

A. Whether the learned Commissioner is justified in deciding the claim petition and passing the final order without framing any issue as per mandatory provision of Rule 28 of Workmen's Compensation Act, 1923?

B. Whether the learned Commissioner is justified in dismissing the claim petition of the appellant holding that deceased Thakur Das was not a workman, without discussing and specifying the specific amended term of "workman" defined in Section 2(1)(n)(sic) read with item No. (XXXI) of Schedule-II Workmen's Compensation Act 1923?

C. Whether the learned Commissioner is justified in deciding the claim petition of the appellant and