A person employed for the purposes of the employer's trade or business is a 'workman' under the Workmen's Compensation Act, even if the employment is of a casual nature.

V. R. NEWASKAR, J.

( 1 ) THE appellants, who are the residents of Mouja Kodaria engaged the services of a mason named Nathulal for plastering a wall of a well. The welt had already been dug and was deeper than 20 feet below the ground level. While Nathulal was engaged in plastering a newly constructed wall of the well a portion of it fell down and he sustained injuries in that accident and died as a result. An application was thereupon submitted by the wife and the mother of the deceased for compensation under the provisions of Workmen's Compensation Act before the Commissioner appointed under the Act. The claim was opposed by the appellants on the ground that the said mason Nathulal was not a workman within the meaning of the term as used in the Act and as such the respondents were entitled to no compensation. There were other contentions raised besides this but the same are no longer material in view of the only point pressed in this appeal as to the deceased Nathulal being a workman under the Act, which the Commissioner found against the appellants.

( 2 ) MR. Pandey who appeared for the appellants contended that Nathulal could not be said to be a workman as contemplated under the Act as he was not a person engaged for 'making an excavation' nor can it be said that his employment was not of a casual nature.

( 3 ) ON the other hand Mr. Maharshi for the respondents contended that he would be a workman as defined in Section 2 (n) of the Workmen's Compensation Act as he in the present context falls under Clause XVI of Schedule II of the Act. The learned counsel relied upon the decisions reported in Popatlal v. Bai Lakhu, AIR 1952 Sau 74, Sitharam Reddiar v. Ayyaswami, AIR 1956 Mad 212 and Ramnivas v. Mt. Mariam, AIR 1951 Pat 260, in support of his contentions.

( 4 ) THE term 'workman' is defined by Section 2 (n) of the Workmen's Compensation Act. Material part of it as applicable to the present case is : "in this Act, unless there is anything repugnant in the subject or context, (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 hundred rupees, in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity oi a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. . . . . . " Now it appears clear from the definition that in order that a person should be a workman as defined, if he be a person whose employment is of casual nature, then to exclude such a person from the definition he should have been employed otherwise than for employer's trade or business. It therefore follows that if a workman is employed For the purpose of trade or business of an employer then even if his employment be of casual nature still he can fall within the category of a workman provided other conditions o the section are fulfilled: vide Abdul Hussein v. Secretary of State, AIR 1933 Rang 244, AIR 1956 Mad 212 and Manton v. Cantwell, 1920 AC 781. In the last mentioned case Lord Birkenhead, L. C. , in his speech in the House of Lords dealing with a similar expression in the definition of 'workman' under an English statute observed: "the language of the passage I have just read is perhaps somewhat open to criticism on the question of draftsmanship, but the effect of it is nevertheless plain. The meaning of the second limb ot the sentence is that if a man be employed for the purposes of the trade or business the employer is liable to him even though the employment be of a casual nature".

( 5 ) HAVING regard to these authorities the fact

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