1. The appellants have filed this appeal under section 30 of the Wormen's Compensation Act, 1923 (hereinafter shall be referred to as the “Act of 1923”) being aggrieved by the impugned order dated 24.12.2003 passed by the learned Commissioner for Workmen's Compensation Act, Gwalior, in Case No.84/B/2000 W.C.A. (Fatal) rejecting the claim of the appellants for compensation under the Act of 1923.

2. It is appellants' contention that the deceased Gayaram was working as Mali/Gardner under respondents No.1 and 2 and was taking care of the trees planted on the road side of the industrial area Malanpur, District Bhind. During the course of the employment and while discharging his duties, Gayaram has met with an accident arising out of the employment. An unknown vehicle dashed him and he died on the spot. An FIR was lodged at the Police Station Malanpur. It is averred that the deceased was 31 years of age and was getting monthly salary of Rs.1,800/- and on such ground compensation of Rs.1,85,355/- was claimed and penalty of 50% and 18% interest on the amount of compensation was also claimed.

3. Learned Commissioner rejected the claim on the ground that it was not proved that the deceased was a workman of the respondents and it was also not proved that the death had occurred during the course of employment but the Commissioner found proved the income of the deceased to be Rs.1,800/- per month and age 31 years. By recording two negative findings; namely the deceased was not a workman within the definition of 'workman' and that he had not died during the course of the employment, claim was rejected.

4. Definition of 'workman' is given under section 2(1)(n) (ii) of the Act of 1923 which reads as under :-

“(n) 'workman' means any person who is :-

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

(ii) employed 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 of a number of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, includes a reference to his dependents or any of them.”

5. The Commissioner has held that as per the provisions of the Act of 1923, employment of Gayaram is not proved. It is also mentioned that the opposite party i.e. Audyogik Kendra Vikas Nigam is not a scheduled employment in Schedule II of the Act of 1923.

6. At this stage, it will be profitable to refer to Schedule II of the Act of 1923, wherein under Clause (viii), it is provided that “employed in the construction, maintenance, repair or demolition.” Audyogik Kendra Vikas Nigam has not filed copy of their memorandum of association to show that what is the scope and nature of their work but it is submitted that they are into the work of development of infrastructure in the industrial area, which includes construction of roads, bridge etc. Similarly, Clause (xliv) provides “employed in spraying and dusting of insecticides or pesticides in agricultural operations of plantations.” These two provisions when read with the evidence of respondent Audhyogik Kendra Vikas Nigam, wherein Shri C.P. Upadhyay appearing for the respondents deposed that he is working in Audhyogik Kendra Vikas Nigam as Junior Engineer and is in charge of building. He also admitted that the deceased Gayaram was a daily wager, who was deployed at Manalpur. He further submitted that he was working as labourer in the development building. In the cross-examination, he admitted that Audhyogik Kendra Vikas Nigam has two offices; one at Gwalior and another at Malanpur. He further admitted that the deceased was working in Malanpur office and not in Gwalior office, whereas witness was from Gwalior office. He further admitted that he had deployed deceased at Malanpur site. He further admitted that he had not proved the muster roll and in the muste