Sarjoo Prasad, J.:— This is an appeal under Section 30 of the Workmen's Compensation Act (VIII [8] of 1923) preferred on behalf of the employer against whom an award of compensation has been made by the Commissioner appointed under the Act. The appellant has been directed to pay a sum of Rs. 2,400 by way of compensation to the respondent who happens to be the widow and dependent of the deceased ??? Khan said to be a workman employed by the appellant.

2. The facts giving rise to this appeal are that Farid Khan, the husband of the respondent, Mt. Mariam, was employed as a mason by the appellant in construction of a building. The case of the appellant is that this building was a residential building, the appellant himself being a trader in mica. The said mason was employed on a wage of Rs. 2/8 per day. He had worked for five or six days on the said construction, when he fell down from the roof of the house which was under construction and received injuries as a result of which he subsequently died by midnight of the same day. This unfortunate incident happened on 4-12-1948. On 5-12-1948, the appellant informed the police about the death of the respondent's husband, and on 14-12-1948, the appellant is said to have paid a sum of Rs. 1900 and another sum of Rs. 500, in all Rs. 2,400 to the respondent for which he obtained a receipt duly signed by her. This receipt is dated 14-12-1948, and has been produced by the appellant. It shows that the widow received Rs. 2,400 by way of compensation and by agreement waived all claims against the appellant for compensation. The respondent Mt. Mariam does not specifically dispute the genuineness of the receipt but she alleges that she received only a sum of Rs. 500 on the death of her husband and was not paid any more money. It appears that the police thereafter submitted a final report in which they stated that Farid Khan was working as a ??? over the building of the appellant and he fell down from the roof of the building which is 14 high from the level of the ground while he was seeing bricks on the northern wall of the building. The report also shows that Mt. Mariam is alleged to have been paid Rs. 510 out of a sum of Rs. 2,400 and it was further reported that the proprietor might be asked to pay compensation to the widow. On this report, it appears that a proceeding for payment of compensation under the Workmen's Compensation Act was started and subsequently on 23-12-1949, a petition was also filed on behalf of the respondent claiming compensation to the tune of Rs. 2,000 On this application having been filed which was, as the Commissioner says, to “regularise the demand” the appellant was ordered by an order dated 27-12-1949, to deposit the amount into the sub-treasury which may be found on calculation payable to the widow of the deceased, the respondent in this appeal.

3. This appeal has been accordingly filed against the order of the Commissioner, dated 27-12-1949, which purports to be an order awarding compensation Now, Section 30(1)(a) of the Workmen's Compensation Act is that an appeal shall lie to the High Court from an order of the Commissioner awarding as compensation a “lump sum.” The order does not indicate that any lump sum has been fixed in the order in question but there is no order on the record showing that any lump sum had been fixed except the previous order in which tentatively the appellant had been asked to deposit a sum of Rs. 2000 by way of compensation. The appellant submits that in pursuance of this order dated 27-12-1949, a sum of Rs. 2400 calculated to be payable as compensation he has been called upon to deposit. Therefore the defect in the form of the order cannot deprive him of a right to appeal which is available to him under the law. There is no doubt that this appears to be the final order passed in the case, and although the order is defective in form, yet the appellant cannot be deprived of his statutory right of an appeal on account of this defect in the garb in which the order has been clothed. It is under this order that he has been directed to pay the lump amount of compansation of Rs. 2400. Therefore this order is undoubtedly an appealable order provided it conforms to the other requirements of the law namely that the appeal involves a substantial question of law and that it is not otherwise barred. On behalf of the respondent, a preliminary objection has been raised as to the maintainability of the appeal, though of course in reply to the arguments of the learned counsel for the appellant. The contention is that the appeal is time barred. According to the contention of the respondent, the appeal was filed on 26-2-1950. It is urged that the appeal could not have been against, the order dated 27-12-1949, and that, it was really against the order dated 28-11-1949, under which the amount of compensation was, fixed. The respondent says that the appeal, beyond 60 days from the date of this order dated 28-11-1949, is hopelessly barred under S. 30(2) of the Act. The order dated 28-11-1949, is not the order appealed against and could not have been the order appealed against. The memorandum of appeal quite clearly shows that the appeal is directed against the order of the Commissioner dated 27-12-1949. That apart, it is quite clear that the order dated 28-11-1949 was not a final order. The order reads thus:

“It appears that the amount of Rs. 2,000 compensation was calculated roughly. Call second party to file papers regarding service length and other particulars regarding service of the deceased by 10.12”

4. Evidently this order was not a final order because the Commissioner required further evidence to determine the amount of compensation paid and it was only when the further materials were produced before him that the final order was passed on 27-12-1949. It cannot, therefore, be contended with any show of reason that the appeal should be taken as against the order dated 28-11-1949, and not the one dated 27-12-1949. I have already pointed out that even this order is defective in form because even here the amount of compensation has not been a specified as a lump sum, but it is the only final order on the record in pursuance of which the appellant has been directed to pay the amount of compensation and there is no other final order. Therefore I am bound to assume that this is the order which fixed the lump amount of compensation, and is, therefore, appealable. The appeal is, therefore, within 60 days from the order appealed against and is not barred by limitation. The respondent has, however, raised another argument in support of her contention that the appeal is barred even if it is held that the appeal is directed against the order dated 27-12-1949. Section 30(1) in its last proviso enjoins that no appeal by an employer under cl. (a) shall lie unless the memorandum of appeal is accompanied with a certificats by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. It is contended that no such certificate accompanied the memorandum of appeal at the time when it was filed but subsequently when the attention of the appellant was drawn to this fact, he produced a certificate and filed it in Court after making the necessary deposit on 2-3-1950. By that time, the contention of the respondent is that the appeal had become already time barred. This contention is undoubtedly a serious contention. On the language of the section it is doubtful whether when an appeal has been filed within the period of limitation allowed by law, it would be time-barred merely because it is not accompanied with a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. It says that no appeal by an employer under sub-cl. (a) shall lie unless the certificate is given. In other words, if the certificate is not produced at some stage before the hearing of the appeal, the appeal will not be entertained. The limitation of 60 days applies to the preferring of an appeal. It is no doubt true that the certificate in question may be a very material document which the law enjoins to be filed in order that the appeal may be entertained, but I feel doubtful whether merely because of the non-production of this certificate within the period of limitation the appeal will become barred. In this case, the certificate was produced on 2-3-1950, and the appeal itself had been filed within the period of limitation. But even if it is assumed for the sake of argument that the memorandum of appeal without being accompanied by the certificate in question was incompetent, the question arises whether time could be extended by this Court and the delay in the production of the certificate in question condoned. There is no doubt that under S. 30(3) of the Act the provisions of Section 5 of the Limitation Act, apply to appeals under this section. The appellant has, therefore, asked us to condone the delay, if any, on the ground that there was sufficient cause for doing so. It is urged that there was some time occupied in taking a certified copy of the order appealed against, and that time should be taken into consideration in applying Section 5 of the Limitation Act, and it is also urged that appeals under the Workmen's Compensation Act, not being very common, the procedure of riling a certificate was unknown to the learned counsel, Mr. G.P Das, (who himself is a counsel of long standing and experience), until the matter was brought to his notice by the stamp report. In my opinion, these are sufficient grounds for extension of time in order to condone the delay in filing the certificate of the Commissioner as required by the law. There is no doubt no formal application before us under Section 5 of the Limitation Act, but these undisputed facts are there; and we can take into consideration these factors in deciding the question of limitation. That being so, I hold, in the first place, that the appeal is not barred, and even if it were taken to be so, the delay, if any, should be condoned under Section 5 of the Limitation Act.

5. Turning to the merits of the appeal, the learned counsel for the appellant has urged three points for our consideration. He contend's that the deceased was not a workman within the meaning of the Workmen's Compensation Act; (2) that the amount of compensation was not properly determined as required by Section 5 of the Workmen's Compensation Act; and (3) that there being already an agreement under which the liabilities of the parties had been adjusted and a memorandum filed in Court, the Commissioner acted with material irregularity in not recording the memorandum in a register prescribed by law under Section 28 of the Workmen's Compensation Act. I will deal with these points in the order in which they have been urged.

6. The word “workman” has been defined in S. 2(n) of the Act. I shall refer only to the relevant portion of the definition. “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: (ii) employed on monthly wages not exceeding three hundred rupees, in any such capacity as is specified in Sch. II. For the appellant it is contended that the employment of Farid Khan, the deceased, was of a casual nature and he was employed otherwise than for the purpose of the employer's trade or business. The deposition of witness 1 on behalf of the appellant is that Farid Khan commenced work in the house of his master only 5 or 6 days before be died, and his malik deals in mica, and that Farid Khan did not do any work in the mica business. It is, therefore, argued that he did not come within the definition of the word “workman” under the Workmen's Compensation Act. It is further to be noticed that sch. II provides the following as answering the definition of “workman” within S. 2(1)(n) of the Act subject to the provision of that section. It provides under Art. (viii) of Sch. II that

“any person employed in the construction, repair or demolition of (a) any building which is designed to be or is or has been more than one storey in height above the ground or twenty feet or more from the ground level to the apex of the roof is a “workman” under the Act.”

Now, there is no evidence here that the building from which Farid Khan fell and received the injuries was a building of this type. On the contrary, the final report submitted by the police on the bisis of which the proceedings appear to have been started shows that the deceased fell down from the roof of a building which was only 14 feet high from the level of the ground while he was setting bricks on the northern wall of the building. Neither party hag argued before us that this report has not been properly brought on the records of the case and has not been proved by the person who made the report. But as it appears to have been the basis of the proceedings about which I presently have to make my comments, it seems to have been admitted in the record by the Sub-divisional Magistrate who also happens to have the power of a Commissioner under this Act. Now, there is no finding by the learned Commissioner as to whether Farid Khan, the person employed, answers the description of a workman having regard to these material considerations urged on behalf of the appellant. The respondent, however, contends that it is not open to the appellant to raise this question now before this Court. The respondent points out that when notice was issued to the appellant to show cause why he should not deposit a sum of Rs. 2000 by way of compensation by the Commissioner, he did not urge before him that the deceased Farid Khan was not a workman within the meaning of the Act, and that, therefore, no action could be taken against the appellant. But, on the other hand, he filed a petition in reply stating that Mt. Mariam, widow of the deceased Farid Khan, the present respondent, had amicably settled up the matter with the appellant and the appellant in pursuance thereof had paid a sum of Rs. 2400 instead of Rs. 2000 to her in presence of respectable gentlemen for which she had granted a written receipt of the payment. It is, therefore, urged that the appellant having failed to raise this contention before the learned Commissioner, it was not necessary for him to determine whether the deceased Farid Khan was or was not a workman within the meaning of the Act. Reliance is placed on S. 19(1) of the Act which says:

“If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman)…the question shall, in default of agreement, be settled by a Commissioner.”

7. It is argued that there being apparently no disagreement in regard to this question, it was not for the Commissioner to settle it. Section 19 does not altogether bar the consideration of the question as to whether a person injured is or is not a workman. All that it means is that if there is an agreement between the parties in regard to this question, then the jurisdiction of the Commissioner to decide it is ousted. But the section does not provide that even if there is no agreement between the parties on this point, and even though the materials might indicate that the employes was not a workman at all as contemplated by the law, yet the Commissioner should assume that he was a work, man and proceed to award compensation. Here the contention of the appellant in evidence appears to have been that he was a casual employee and not employed for the purposes of the mica trade or business which is really the trade and business of the employer. This does not appear to have been challenged in the evidence of the respondent, yet the matter was left undecided by the learned Commissioner who proceeded to assess the amount of compensation. I can quite understand a case where parties have definitely agreed both as to the person for whom compensation is claimed being a workman and also as to the amount of the compensation. In such a case undoubtedly the jurisdiction of the Commissioner is ousted, and it would not be necessary for him to decide this question. But on the language of S. 19, it is difficult for me to hold that even where the point is a moot point, and even where the evidence might indicate that the employee was not a workman as required by the law, the Commissioner will have no jurisdiction to decide those points. In fact, the very object of the Act is for payment of compensation in respect of an injury caused to a “workman,” and if an individual is not a workman at all, he may have his remedies under some other law for recovery of damage, but not under the Workmen's Compensation Act. In the petition which was filed by the appellant in answer to the show cause notice it is not anywhere shown that the appellant admitted that Farid Khan, the deceased was a workman as understood by the Workmen's Compensation Act. It is true he says that the matter had been settled between the widow of the deceased and the appellant amicably in presence of respectable gentlemen, but it is nowhere admitted that the deceased was a workman as understood by the Workmen's Compensation Act. The question, therefore, in my opinion, was an important question and should have been considered by the learned Commissioner before deciding about the compensation payable to the respondent.

8. The next contention is also important. Section 5 of the Act deals with the method of calculation of wages. Clause (a) of the section applies to those cases where the workman has, during the continuance of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation. This clause will not evidently apply to the present case because the employee had been working in the building only 5 or 6 days before he died. Clause (b) of the section applies to those cases where the whole of the continuous period of service immediately preceding the accident during which the work man was in the service of the employer who is liable to pay the compensation was less than one month, and cl. (c) applies in all other cases where the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation divided by the number of days comprising such period. Now from the language of the section it is plain that the specific clause applicable to the present case would be cl. (b) because the whole of the continuous period of service immediately preceding the accident was less than one month. It is true that the employee in this case had not been on monthly wages. Prom the evidence it appears that he was getting Rs. 2-8-0 a day. It was pointed out by Beaumont C.J, in Ellermans' City and Hill Lines v. Asis Thomas, A.I.R (25) 1938 Bom. 110 : I.L.R (1938) Bom. 44 that

“the reference to employment on monthly wages in S. 2(1), sub cl. (n), means employment at wages which do not exceed an average of Rs. 300 a month. It seams to me quite impossible, reading this Act as a whole to say that it was limited to workmen who are employed by the month no that it would not include workmen employed by the day or by the week or by the year. If that were the meaning of the Act, every employer could get out of it by employing his workmen otherwise than by the month. I feel no doubt whatever that the meaning of the expression monthly wages not exceeding three hundred rupees' means wages which do not exceed an average of Rs. 300 a month.”

From this it follows that a daily wage earner also may be regarded as a workman provided he fulfils the other conditions of the definition. I am at present on the question of method of calculation of wages and I was saying that cl. (b) is the specific clause of S. 6 which would apply to the present case. Now, if this is a provision under which the assessment should be calculated, then the assessment does not appear to have been legally made. Under cl. (b), it should be either on the basis that the monthly wages of the workman should be deemed to be the monthly average amount which during the twelve months immediately preceding the accident was being earned by the workman employed on the same work by the same employer, or, if there was no workman so employed, by a workman employed on similar work in the same locality. For the appellant it has been rightly contended that there is no evidence given in this case to prove either of the two factors on which the wages may be calculated in the case of the deceased worker with whom we are concerned. The Court below appears to have proceeded to assess the amount of compensation on the basis of the calculation as provided in cl. (e) of S. 5. This, in my opinion, was an incorrect basis. As I have said, the calculation should have been made under cl. (b) of S. 5 and the materials required to be proved in making that calculation should have been called for, if available.

9. I shall now come to the third contention advanced by the appellant which, in my opinion is the most substantial contention. The appellant contends that the amount of a lump sum payable as compensation had been settled by agreement between the widow of the deceased worker, the present respondent, on the one hand, and the appellant, on the other, and a memorandum of the same had been prepared in the form of a receipt which bears the thumb impression of the respondent and has been witnessed by six other witnesses, one of them being a District Board overseer. The document has been produced and has been marked as Ex. B in the case. As this is a very material document I may as well reproduce the whole of its contents. It runs as follows:

“I am Mariam Nissa, widow of Farid Jan deceased, resident of Kharagdiha, P.S Jamua, district Hazaribagh and I admit as follows:

That my husband died on 4-12-48 meeting an accident.

That I am fully satisfied that the Company which employed him is quite innocent.

That having received Rs. 2400 (Twenty four hundred rupees) by way of compensation I put my signature and pen mark. In future I will have no claim against the company.”

His Lordship referred to the evidence and proceeded: The evidence of these witnesses which I have no reason to doubt in the least very clearly indicates that the document in question was a genuine document and contained an agreement between the carties in regard to the amount of compensation and the payment thereof. The agreement ought to have been recorded by the learned Commissioner as provided in Section 28 of the Workmen's Compensation Act. The learned Commissioner, however, refused to record the same. In doing so he made the following observation:

“Though evidence has been recorded, I do not find it necessary to go into it. I find from perusal of Section 8(1) of the Workmen's Compensation Act (VIII [8] of 1923) that payment should be made through the Commissioner and any payment made directly by an employer shall not be deemed to be a payment of compensation. In this case the payment, if at all made, has definitely not been made through the Commissioner. The opposite party says that there was mutual agreement and as such the payment was made outside the Court. But in that case the opposite party should have at least informed the Court or should have executed a memorandum of agreement as required under Ss. 28 and 29 of the Act….”

10. Now, this, in my opinion, seems to be a clear misconception of the provisions of the law. The document (Ex. B) is clearly a memorandum which shows that the compensation payable had) been settled by an agreement between the parties, and the memorandum in question had been produced before the Commissioner. The law then requires that the Commissioner shall on being satisfied as to its genuineness record the memorandum in a register in the prescribed manner. I do not understand what the Commissioner means by saying

“in that case the opposite party should have executed the memorandum of agreement as required under Ss. 28 and 29 of the Act,”

The memorandum was already there executed by the respondent and bearing her thumb mark witnessed by several witnesses most of them being disinterested residents of the place, and having considered the evidence, I feel no doubt in my mind that it was a genuine agreement if the learned Commissioner had applied his mind to the provisions of the law and proceeded to consider the evidence as I have done, I have no hesitation in thinking that he would have come to the same conclusion, namely, that the memorandum regarding the agreement was a genuine memorandum, and, therefore, the Commissioner was bound to record the same in a register as prescribed by the law. The Commissioner has not proceeded to do so. I have therefore, no option but to sat aside the order of the learned Commissioner and to direct that the memorandum in question should be registered by him as required by Ss. 28 and 29 of the Act. I consider it unnecessary to send the case on remand for the purpose of determining the genuineness of the document when on a consideration of the evidence, I feel that there is no doubt as to its genuineness. In this view of the matter it would be unnecessary now for the Commissioner to decide the other two questions raised by the learned counsel for the appellant inasmuch as the agreement in question concludes the matter.

11. I cannot, however, part with this case without making a few observations in regard to the irregularity of the procedure adopted by the learned Commissioner even from the very stage of the initiation of the proceedings. A reference to the order sheet shows that the proceedings were initiated as early as 5-1-1949, not on any claim for compensation filed by the respondent as required by S. ???(a) of the Act but upon the report of the police. It is true that in rare cases the Commissioner may decide any claim to compensation in any case notwithstanding that notice had not been given or the claim had not been preferred in due time as provided in sub-S. (1) of S. 10, if he is satisfied that the failure to give notice or to prefer a claim was due to sufficient cause. There is no such case here. In fact the lady, the respondent, never moved in the matter at all and very probably never intended to move in view of the settlement between the parties. But the Sub-divisional Magistrate who was also the Commissioner issued notice on the police report directing the appellant to show cause why he should not pay Rs. 2,000 by way of compensation to the dependent of the deceased worker. When no reply was received to this notice, he directed an acknowledgment due registered letter to be sent to the appellant to deposit the money by 30-4-1949. Then on 30-4-1949, the appellant filed a petition to which I have already referred in course of my judgment. In this petition the appellant stated that the matter had been amicably settled between the parties, and that the widow of the deceased Farid Khan had been paid Rs. 2400 as compensation and filed a receipt (Ex. B) in support of the same. This petition accompanied as it was with the memorandum Ex. B must be treated as one under S. 28 of the Act. The Commissioner then directed notice to be issued on the widow to appear before him for verification. He does not appear to have been conscious at this stage of the existence of Section 28 of the Workmen's Compensation Act, as his subsequent order shows, yet it must be assumed that the order of 30-4-1949, asking the widow to appear for verification purports to have been under S. 28 of the Act. On the next date the respondent did not appear, and the Commissioner directed the Sub-Inspector of police to make her appear before him on 10-6-1949, and on 10th of June the respondent appeared for the first time when she denied having received the entire Rs. 2400 but admitted receipt of only Rs. 500. She was then called upon to produce her witnesses to prove her case. It should be noted that on this date when she appeared she did not prefer any claim for compensation After two adjournments on 8-8-1949, she produced a witness. But as this was not sufficient, she was asked to produce all the witnesses on the next date, that is, 20-8-1949, when her witnesses were examined and the case was adjourned to 13th of September for the evidence of the opposite party, that is, the appellant. The second party, meaning the appellant, produced his witnesses on 5-10-1949, when his witnesses were examined. The Commissioner then directed the matter to be put up for hearing on 8-11-1949, which was again adjourned to the 23rd of November when he heard the parties and directed that the matter should be put up on the 10th of December for orders. Thus he should have proceeded to decide on the evidence whether the memorandum Ex. B was or was not a genuine agreement between the parties. This he did not do but in the mean time on 23-11-1949, a claim petition for the first time was filed by the respondent which the learned Commissioner says was “to regularise the demand.” Now, the Commissioner having heard the evidence in regard to the genuineness of the agreement should have proceeded to decide this matter. But as I have, shown from his order he refused to do so and then on the application filed on 23-11-1949 he passed the order of compensation. If the learned Commissioner had observed the procedure laid down under the law, the parties would have been saved much of the unnecessary cost and harassment caused to them. I do not mean to suggest that the claim petition filed on the 23rd November was beyond time because the workman's death occurred on 4-12-1949. But even this claim petition was not a regular claim petition. It is quite apparent that it had been filed at the end of the proceedings when the parties had been heard in regard to this matter of genuineness of the settlement, and adduced their evidence on the point. There is an allegation made in the petition that some notice of claim was served upon the employer but no such notice has been produced on the record. In my opinion, therefore, moat of the procedures adopted by the learned Commissioner appear to have been illegal and misconceived.

12. The procedure which may be deemed to be regular is from the stage of his order dated 30-4-1919, up to the stage of his order dated 23-11-1949, when he again erred in entertaining the petition for compensation dated 23-11-1949, filed by the respondent which he erroneously thought was to regularise the demand. I have held that there was a genuine agreement between the parties as required by S. 28 of the Act, and, therefore, the agreement should be registered by the Commissioner as it was his bounden duty to do so.

13. In the circumstances, I would allow the appeal, set aside the order of the learned Commissioner directing the payment of compensation by the appellant, and I would order that the settlement by agreement as embodied in Ex. B being a genuine settlement, this memorandum should be recorded by the Commissioner in a register as prescribed by law, and the case disposed of accordingly. I do not think that it would be proper in this case to award any costs to the appellant, and I would, therefore, direct that each party should bear its own costs throughout.

14. Imam, J.:— I agree to the order proposed.

V.R.B

15. Appeal allowed.