S.H. SHETH

(1.) This appeal is directed against the judgment and order recorded by the learned Single Judge in First Appeal No. 829 of 1969 which arose out of a claim for compensation under the Workmen's Compensation Act 1923

(2.) The facts of the case briefly stated are as under: The deceased Ghanshyam Chhotalal Patel had been employed by Godhra Municipality as a gardener or Mali. He had been working at the municipal town-hall in the city of Godhra. On 22nd March 1967 there was heavy rain and there was a wind-storm. As a result the roof of the town-hall was displaced. The deceased was asked by the Chief Officer of the Municipality to climb the roof in order to refix and repair it. The deceased climbed the roof of the town-hall. Unfortunately on account of the stormy wind he fell down and was injured. He was removed to the hospital where he died the next day. His dependents thereafter made the present application under the Workmen's Compensation Act 1923

(3.) In defence the Municipality contended that the deceased was not a workman within the meaning of that expression given in the said Act. He was employed as a gardener or Mali and was not supposed to climb the roof of the town-hall. The town-hall was rented to the State Bank of India. It also contended that none had asked the deceased to climb the roof of the town-hall to refix and repair it. The deceased was paid a daily wage of Rs. 1.94 p. and not Rs. 58.20 per month.

(4.) The learned Commissioner found on evidence that the deceased was not a workman within the meaning of that expression given in the Workmen's Compensation Act 1923 and that the accident had not arisen out of or in course of the employment of deceased. He therefore dismissed the claim made by the dependents of the deceased. That order was challenged by the dependents of the deceased in First Appeal No. 829 of 1969. The learned single Judge confirmed the findings recorded by the learned Commissioner and dismissed the appeal.

(5.) It is that appellate order which is challenged in this Letters Patent Appeal.

(6.) Mr. Vakil who appears for the Municipality has raised a preliminary objection to the maintainability of this Letters Patent Appeal. According to him the order made by this Court in First Appeal No. 829 of 1969 is not a judgment within the meaning of Clause 15 of the Letters Patent. Therefore according to him this Letters Patent Appeal is incompetent. In order to make good this contention of his he has relied upon a few decisions.

(7.) In Secretary of State v. Mt. Geeta w/o Imam Musalman and others A.I.R. 1939 Nagpur 122 the question which arose was whether an appellate order recorded by a single Judge of a High Court in an appeal under sec. 30 of the Workmen's Compensation Act is a judgment within the meaning of Clause 10 of the Letters Patent governing the Nagpur High Court. Clause 15 of the Letters Patent which governs this High Court is pari materia with the said Clause 10. A Division Bench consisting of Chief Justice Stone and Mr. Justice Vivian Bose has held that the decision recorded by a single Judge of the High Court in an appeal under sec. 30 of the Workmen's Compensation Act is not a judgment within the meaning of Clause 10 of the said Letters Patent. The reason which has weighed with the Nagpur High Court in recording that conclusion is that under the provisions of the Workmen's Compensation Act the Commissioner makes only an award and that therefore when the High Court decides the appeal the High Court also makes an award. It appears that in the view taken by the Nagpur High Court an award made under the Workmen's Compensation Act is not a judgment within the meaning of Clause 10 of the said Letters Patent. This case which Mr. Vakil has cited has a direct bearing on the preliminary objection which he has raised before us. (8.) The next decision which Mr. Vakil has cited is in Gopal Singh v. State of Punjab and others XIII (1957-58) Indian Factories Journal 36. A division Bench of the Punjab High Court consisting of Chief Justice Bhandari and Mr. Justice Khosla has taken the view that the decision of a single Judge of the High Court on an appeal under sec. 30 of the Workmen's Compensation Act 1923 is not a judgment within the meaning of the Letters Patent and that therefore no further appeal under Letters Patent is competent. The reasoning which has weighed with the Punjab High Court is the same as has weighed with the Nagpur High Court in the aforesaid decision. The Punjab High Court has relied upon it and recorded the same conclusion. It has also relied upon the decision of the Privy Council in Rangoon Botatoung Co. Ltd. v. Collector of Rangoon I.L.R. 40 Calcutta 21. We have perused the latter-mentioned decision It was rendered by the Privy Council in a land revenue case. In our opinion it cannot be applied for the purpose of determining the question whether a decision recorded by a single Judge of the High Court on an appeal under sec. 30 of the Workmen's Compensation Act 1923 is a judgment within the meaning of Clause 15 of the Letters Patent or not.

(9.) The third decision upon which Mr. Vakil has placed reliance is in Mrs. Khairunnissa A. K Siddiki v. The Municipal Corporation of the city of Bombay 67 Bombay Law Reporter 903 It was a case under the Motor Vehicles Act 1939 It has been held in that decision that the word suit used in sec. 527 of the Bombay Marsupial Corporation Act 1888 means a proceeding which is commenced by the presentation of against and that therefore an application under sec. 110 of the Motor Vehicles Act 1939 does not fall within the ambit of the said section. It has been further held in that decision that the Tribunal constituted under the Motor Vehicles Act is not a Court. The last-mentioned decision is quite inapposite. The two first-mentioned decisions have a direct bearing on the contention raised by Mr. Vakil.

(10.) Mr. Shelat has relied upon two decisions in support of his contention. In Smt. Rajiyabai Oosman Sayi v. M/s. Mackinnon Mackenzie and Co. Pvt. Ltd. 72 Bombay Law Reporter 358 a Division Bench of the High Court at Bombay has held that an order made in appeal by the High Court under sec. 30 of the Workman's Compensation Act 1923 is a judgment within the meaning of clause 15 of the Letters Patent. It has been laid down that the Commissioner under the Workmen's Compensation Act is a Court and his adjudication under the Act is a judgment and not an award. In view of the direct decision of the High Court of Bombay in the aforesaid case under the Workmen's Compensation Act no reliance can be placed upon the aforesaid decision of the Bombay High Court reported in 67 Bombay Law Reporter 903 because whereas the decision in Mrs. Khairunnissas case (supra) is under the Motor Vehicles Act 1939 the decision of the Bombay High Court in Smt. Rajiyabais case (supra) is under the Workmen's Compensation Act 1923 In Rajiyabais case (supra) a fairly large number of decisions have been reviewed and considered. It is not necessary to refer to all those decisions in this judgment because in our opinion the question can be answered by applying the tests laid down by the Supreme Court in Thakur Jugal Kisore Sinha v. The Sitamarhi Central Co-operative Bank Ltd. and another A. I. R. 1967 Supreme Court 1494. In that decision reference has been made to the earlier decision of the Supreme Court in Brajnandan Sinha v. Jyoti Narain A.I.R. 1956 Supreme Court 66 upon which the Bombay High Court in Rajiyabais case (supra) has placed reliance. In Thakur Jugal Kishore Sinha's case (supra) the Supreme Court has held that an Assistant Registrar under Bihar and Orissa Co-operative Societies Act 1935 is a Court so far as the Contempt of Courts Act is concerned. While recording that conclusion it has laid down the following tests to determine whether a tribunal is a Court. (1) Whether it ousts the jurisdiction of the ordinary civil and revenue courts (2) Whether it enjoys the same powers as a civil court enjoys such as (a) Power to summon and examine witnesses on oath (b) power to order inspection of documents (c) power to hear parties after framing issues (d) power to review his own order and (e) inherent jurisdiction such as civil courts have under sec. 151 of the Civil Procedure Code (3) Whether there is a public hearing of a case by it (4) Whether parties have a right to be heard in support of their case (5) Whether it has a duty to decide disputes in a judicial manner and to declare the rights of the parties in a definitive judgment which has finality and authoritativeness and which is a binding decision (irrespective of whether it is subject to appeal or not) (6) Whether it is under an obligation to decide a case on consideration of evidence adduced by the parties and in accordance with law after ascertaining facts on such evidence and after considering legal contentions with the assistance of arguments advanced by or on behalf of parties (7) Whether it is under an obligation not to take any decision in which it is personally interested (8) Whether all the proceedings must be conducted in its presence and (9) Whether it has power to dispose of the case on law and facts. These are the paraphernalia and powers of a Civil Court and if the answers to most of these tests are in the affirmative in case of any particular tribunal it is a Court and its decision is a judgment by whatever name called.

(11.) Sec. 19 of the Workmen's Compensation Act excludes the jurisdiction of the Civil Court to settle decide or deal with any question which is by or under the said Act required to be settled decided or dealt with by a Commissioner or to enforce any liability incurred under the said Act. It also confers upon the Commissioner exclusive jurisdiction to determine any question relating to the liability of any person to pay compensation arising under the said Act including the question whether a person injured is or is not a workman and also any questions relating to the amount or duration of compensation and the nature or extent of disablement. Sec. 19 makes it clear beyond any doubt that the Commissioner under the Workmen's Compensation Act 1923 exercises his jurisdiction in matters arising under the said Act to the complete exclusion of the jurisdiction of the Civil Court. Next the Commissioner under the said Act has trappings of a Civil Court. Sec. 23 confers upon him all the powers of a Civil Court under the Code of Civil Procedure 1908 for the purpose of taking evidence on oath enforcing the attendance of witnesses and compelling the production of documents and material objects. He has also been empowered to impose oath on a witness. It further provides that the Commissioner shall be deemed to be a Civil Court for the purposes of sec. 195 and of Chapter XXXV of the Code of Criminal Procedure 1898 Sec 25 requires him to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds and further requires him to write down such memorandum and to sign it. His decision is definitive authoritative and binding on the parties (subject to appeal if any). Practically all the tests laid down by the Supreme Court are answered in the affirmative with reference to the provisions of the Act relating to his power duties obligations and paraphernalia. He does not decide cases under the said Act on a private reference. Therefore the Commissioner under the Workmen's Compensation Act 1923 is a Court and therefore though his decision may have been styled by the Act as an award it is indeed a judgment not in any way different from the judgment of a Civil Court. If that is so the appellate decision of a learned single Judge on appeal under sec. 30 of the Workmen's Compensation Act is also a judgment. If it is a judgment as we hold it to be then Clause 15 of the Letters Patent is attracted to it and the Letters Patent Appeal is competent. The preliminary objection raised by Mr. Vakil has therefore no substance. It fails and is rejected.

(12.) It has been next contended by Mr. Vakil that on merits of the case the Letters Patent Appeal is not maintainable because this Court has no jurisdiction to reappreciate the evidence in order to come to a different conclusion. In support of his contention he has invited our attention to sec. 30 of the Workmen's Compensation Act 1923 It provides that an appeal shall lie to the High Court from the orders of a Commissioner specified therein only if there is a substantial question of law. The contention which Mr. Vakil has raised is that if the First Appeal to this High Court under sec. 30 lies only on a substantial question of law the scope of the Letters Patent Appeal which arises from the decision recorded in such a First Appeal cannot be wider than the scope of the First Appeal itself. This submission made by Mr. Vakil in quite correct. No Letters Patent Appeal from a decision recorded in an appeal by a learned single Judge under sec. 30 of the Workmen's Compensation Act 1923 will be competent unless there is a substantial question of law.

(13.) Bearing this principle in mind we proceed to examine the contentions raised by Mr. Shelat and replied to by Mr. Vakil. Mr. Shelat has raised the following two contentions before us 1 The learned single Judge was in error in holding that the deceased Ghanshyam was not a workman within the meaning of sec. 2(i) (n) of the Workmen's Compensation Act 1923 The learned single Judge was in error in holding that the fatal accident with which the deceased Ghanshyam met had not arisen out of and in course of his employment. These are two different questions which must be answered on the facts of the case and in light of the legal provisions which have a bearing on them. What the learned Commissioner and the learned single Judge have done is to mix up both these questions. While determining whether the deceased was a workman within the meaning of that expression given in the said Act what has been taken into account by the learned single Judge is that the act of the deceased Ghanshyam having climbed the roof of the municipal town-hall from where he fall down and met with the fatal accident had no connection whatsoever with his employment as a gardener or Mali. In our opinion the two questions could not have been mixed up. Whether the deceased was a workman or not has to lie answered on the facts of the case and in light of the legal provisions relating to it. Whether the accident arose out of and in course of employment of the deceased cannot be intermixed with the question whether he was a workman or not. It is this intermixture of the two questions which has led to the erroneous decision by the learned single Judge. This raises a substantial question of law which impels us to entertain this Letters Patent Appeal and to interefere with the decision recorded by him.

(14.) Let us now see whether the deceased was a workman within the meaning of that expression given in sec. 2(1)(n). Sec. 2(1)(n) in so far as it is relevant to the present case provides as follows:

Workman means any person.......... who is (ii) employed on monthly wages not exceeding five 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 of a member of the Armed Forces of the Union; add any reference to a workman who has been injured shall where the workman is dead include a reference to his dependents or any of them. It is not in dispute before us that the monthly aggregate of daily wages which the deceased had been earning as a Mali employed by the Municipality did not exceed Rs 500 a month. The evidence of Chandrakant Dahyabhai Parikh whose testimony appears at Ex. 27 shows that the deceased had been earning Rs. 1.94 p. per day. He was a daily wage-earner. The maximum monthly wages which he therefore earned amounted to Rs. 58.25. This witness was at the relevant time the Chief Officer of Godhra Municipality. One of the ingredients specified by sub-clause (ii) of clause (a) is therefore satisfied. So far as the contract of employment is concerned it is not in dispute before us that he was an employee of Godhra Municipality. Mr. Vakil has contended before us that the employment of the deceased was of a casual nature. It is very difficult for us to uphold this contention raised by Mr. Vakil for more than one reason. The exception which flows from the expression used in brackets in Clause (a) can be established if two ingredients are satisfied. The first ingredient is that the employment must be of a casual nature and the second ingredient is that the workman must have been employed otherwise than for the purposes of the employers trade or business. The evidence shows that the deceased had been working as an employee of the Godhra Municipality for 3 or 4 years past. This has been established by the evidence of Jethubhai Gangubhai whose testimony appears at Ex. 26. He too is a gardener employed by the Godhra Municipality. If a workman has been continuing to serve his employer for a period of 3 or 4 years even though he may he earning daily wages he cannot be said to be an employee whose employment is of a casual nature. In our opinion the employment of the deceased was therefore not of a casual nature. Secondly the evidence shows that be had been employed for the purposes of his employer the Godhra Municipality and not for any other purpose. None of the two ingredients specified in the aforesaid exception are therefore satisfied. The present case therefore is not governed by that exception. We may also mention at this stage that it has not been pleaded by the Godhra Municipality in its Written Statement that the employment of the deceased was of casual nature. It is therefore not open to the Municipality to invoke this exception in order to hit the claim made by the dependents of the deceased workman. The question whether the employment of the deceased was of a casual nature or not was not even canvassed before the learned Commissioner as well as before the learned single Judge. Therefore it is not open to Mr. Vakil to raise that contention before us. Before any contention is raised by a party at the appellate stage the attention of the parties must be focused on it at the trial of the suit. If the attention of the parties was not focused on a contention and if the parties did not lead evidence in relation thereto after having been conscious of such a contention it cannot be allowed to be raised at an appellate stage. For this additional reason also the contention raised by Mr. Vakil must be rejected.

(15.) The next question which arises in this connection is whether the deceased was employed in any such capacity as is specified in Schedule II to the Act. Mr. Shelat has placed reliance upon Clauses (xxix) and (viii) in Schedule II to the Act. Schedule II opens with the following words:

The following persons are workmen within the meaning of sec. 2(1)(n) and subject to the provisions of that section that is to say any person who is In continuation of the aforesaid opening words appearing in Schedule II to the Act Clause (xxix) provides as follows: employed in farming by tractors or other contrivances driven by steam or other mechanical power or by electricity. It is extremely difficult to say how a gardener or a Mali who is an unskilled labourer and whose normal duty is to weed out the useless plants and to tend useful ones can be said to have been employed either in farming by tractors or by other contrivances driven by steam or other mechanical power or electricity. Clause (xxix) in Schedule II to the Act cannot by any stretch of imagination bring within its compass the work which a gardener or Mali does. The next clause upon which reliance has been placed is Clause (viii) which provides as follows: employed in the construction maintenance 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 twelve feet or more from the ground level to the apex of the roof; or (b) ..... .... (c) ....... .... (d) ...... .... It is not in dispute that the town-hall is more than 12 feet in height from the ground level to the apex of the roof. The evidence of Chandrakant Dahyabhai Parikh the Chief Officer of the Municipality shows that it is 30 feet in height. The town-hall in the garden of which the deceased had been ordinarily working satisfies the requirements of a building referred to in Clause (viii)(a). Now the expression which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof is the adjectival clause which qualifies the expression any building. Therefore any person who is employed in the construction maintenance repair or demolition of any such building is a workman within the meaning of that expression given in the said Act. Whereas Mr. Shelat has contended that the expression building not only means a four-walled structure but also includes lands and other things appurtenant to it Mr. Vakil on the other hand has contended that the said expression has the limited connotation which confines its applicability only to a four-walled structure and does not extend it to lands and things appurtenant to it. We are not impressed by that argument raised by Mr. Vakil. One of meanings assigned by Blacks Law Dictionary to the expression building is as follows: It imports tangibility and may include the land on which it stands as well as adjacent land. In order to fortify his argument Mr. Vakil has argued that different clauses in Schedule II to the Act suggest that in order that a person may be a workman within the meaning of the Act he must be engaged in doing a thing in such a manner as has the potentiality of causing an accident. A gardener or Mali who works in a garden does not do anything which has the potentiality of causing an accident. Therefore according to Mr. Vakil any work which may be done in a garden attached to such a building is not likely to lead to any such accident. The argument advanced by Mr. Vakil ex facie appears to be fairly attractive but on a close scrutiny it does not stand the test of soundness. Clause (viii)(a) in Schedule II to the Act specifies a building which is more than one storey in height or 12 feet or more in height from the ground level. A workman who is engaged in the construction maintenance repair or demolition of such a building may meet with an accident. But are we to believe that a workman who is engaged in the construction maintenance repair or demolition of a building which is less than 12 feet in height from the ground level shall never meet with any accident ? A building may be 6 or 7 feet in height from the ground level and a workman may fall from the height of the wall of such a building may suffer cerebral hemorrhage and die and yet such a workman is not entitled to the benefit of the Workmen's Compensation Act 1923 because he is not a workman within the meaning of that expression given in the said Act. Therefore the test of potentiality of an accident which Mr. Vakil has advanced is in our opinion not a sound test. We therefore go by the simple language of Clause (viii)(a) in Schedule II to the said Act. In our opinion since a building includes a four-walled structure as well as the lands appurtenant to it - it also includes a garden. Therefore if a workman is engaged in the construction maintenance repair or demolition of a garden which is attached or appurtenant to a building which answers the description given in Clause (viii)(a) of the Schedule to the said Act he is entitled to the benefit of the Workmen's Compensation Act 1923 if he sustains any injury in the course of and out of his employment. In the instant case the deceased Ghanshyam was engaged in maintaining the garden attached and appurtenant to the municipal town-hall belonging to the Godhra Municipality. lie was therefore a workman within the meaning of sec. 2(1)(n)(ii) read with Clause (viii)(a) in Schedule II to the Act. Now if a workman was engaged in any capacity specified in Schedule II subject to the satisfaction of the other conditions specified in the definition of the expression workman he would be a workman within the meaning of that expression given in the said Act irrespective of what he was doing at the moment when the accident happened. The expression in any such capacity as is specified in Schedule II used in sec. 2(1)(n)(ii) does not import the idea or notion of what a workman had been doing actually at the time when the accident happened. The learned single Judge while examining the question whether the deceased Ghanshyam was a workman has mixed up the consideration of his capacity with the actual work which he had been doing. That in our opinion is an erroneous approach. It has coloured the entire judgment of the learned single Judge. Therefore a substantial question of law has arisen for our decision in this Letters Patent Appeal.

(16.) The capacity in which a workman was employed is to be determined with reference to the terms and conditions of his contract of employment. In the instant case the deceased Ghanshyam an unskilled labourer had been ordinarily engaged in maintaining the garden attached and appurtenant to the town-hall belonging to the Godhra Municipality. He was therefore engaged in maintenance of that building. Assuming that we are in error in taking this view and that it is necessary to take into account what a workman had been actually doing at the time of the accident in order to determine whether he was a workman within the definition of the expression given in the said Act the result is not in any way different. The deceased Ghanshyam was engaged in repairing the roof of the town hall which had suffered damage on account of stormy wind and rain. He was a regular employee of the Godhra Municipality. As a regular employee he was at the time of the accident employed in repairing the building as contemplated by Clause (viii) (a) in Schedule II to the Act. Therefore even from that point of view he falls within the expression workman as defined by the said Act.

(17.) The next question which arises for our consideration is whether the accident with which the deceased Ghanshyam met arose out of and in the course of his employment within the meaning of sub-sec. (1) of sec. 3 of the said Act. The aforesaid expression has been construed by the Supreme Court in Mackinnon Mackenzie and Co-Private Ltd. v. Ibrahim Mahommad Issak A.I.R. 1970 Supreme Court 1906. It has been held in that decision that in order to attract the provisions of the Act the accident must be proved to have arisen both out of and in the course of employment. The expression arising out of employment suggests as has been held by the Supreme Court a causal relationship between the accident and the employment. In other words the deceased must be shown to have been engaged in doing something which he had been doing at the time of the accident on account of his employment - His employment must be the cause and the actual work in which he was engaged at the time of the accident must be the effect flowing therefrom. If an accident has occurred on account of a risk which is an incident of the employment the claim for compensation must succeed unless of course the workman has exposed himself to an added peril by his own imprudent act. It has approved the observations of Lord Summer in Lancashire and Yorkshire Rly. Co. v. Highley 1917 A. C. 352 in which the test which the learned Lord has laid down is as follows:

Was it part of the injured persons employment to hazard to suffer or to do that which caused his injury ? If the answer is in the affirmative the accident must be said to have arisen out of his employment. If the answer is in the negative the accident cannot be said to have arisen out of his employment because it was not a part of the employment to hazard to suffer or to do any such thing. The expression in the course of his employment suggests that the accident must have happened during the working hours of the injured workman. These hours may be actually or nationally extended. Relying upon this decision Mr. Vakil has argued that it was not a part of the duty or function of the deceased Ghanshyam who had been working as a gardener or Mali to expose himself to the hazard of climbing the roof of the town hall at a time when there was stormy wind and rain

(18.) The next decision upon which he has placed reliance is in Ravuri Kotayya v. Dasari Nagavaradhanamma and other A.I.R. 1962 Andhra Pradesh. In that decision a learned single Judge of the Andhra Pradesh High Court has observed that in order to establish that an accident has arisen out of and in the course of employment of the victim the following conditions must be established.

(a) the workman was in fact employed on or performing the duties of his employment at the time of the accident. (b) The accident occurred at or about the place where he was performing these duties or where the performance of these duties required him to be present. (c) The immediate act which led to or resulted in the accident had some form of causal relation with the performance of these duties and such causal connection could be held to exist if the immediate act which led to the accident is not so remote from the sphere of his duties or the performance thereof as to be regarded as something foreign to them.

He has then proceeded to carve out certain exceptions to these conditions. He has laid down the first exception in the following terms:

Where the accident involved a risk common to all humanity and did not involve any peculiar or exceptional danger resulting from the nature of the employment He has laid down the second exception in the following terms: Where the accident was the result of an added peril to Which the workman by his own conduct exposed himself which peril was not involved in the normal performance of the duties of his employment. Relying upon this decision Mr. Vakil has argued that these was no causal relation between the duties which the deceased Ghanshyam was required to perform and his act of climbing the roof of the town-hall in order to refix it.

(19.) The third decision upon which he has relied is in Smt. Koduri Atchayamma v. Palangi Atchamma 1969 Indian Factories and Labour Reports 101. In that decision it has been observed by the Hyderabad High Court that it is not enough that injury should have been sustained by the workman during the period of his employment but that it should have been sustained in the course of his employment. The act which has resulted in the accident must have some connection with the work for which the workman had been employed. Such connection need not be direct. It may be incidental to the duties attached to the work for which he is employed. In other words there should be a causal relation between the accident and the duties which workman was required to perform by the employer. The act should not be foreign to his employment. The peril which results in injury must be involved by the contract of service and not be alien to it. The workman must have been doing something which is a part of his service though it need not be his actual work. It should be work which is naturally connected with the class of work and the injury must result from it. There should be a nexus between the injury and the work which the workman had to perform. The argument which Mr. Vakil has advanced on the strength of this decision is the same which he has advanced on the basis of two other decisions referred to above. Under ordinary circumstances if the deceased Ghanshyam without any reasonable cause had climbed the roof of the town-hall during the working hours and fallen down therefrom it could have probably been said that there was no causal relationship between his employment and the actual work which he had been doing at the time of the accident. The decisions referred to above do not lay down how the principle of causal relationship should be applied to cases which involve special circumstances or emergency. Stormy wind and heavy rains which dislocated the roof the town-hall was an emergency absolutely unforeseen and unexpected. It was a special situation created by an act of nature. If the deceased climbed in such special circumstances or such an emergency the roof of the town-hall in order to refix it be. cause it had been displaced he tried to do so for the benefit of his employer.

(20.) In The Ahmedabad Cotton and Co. v. Bai Budhian Rajaram 29 Bombay Law Reporter 349 the facts of the case show that repairs were being carried out to the roof of the weaving shed in textile mill and that a temporary hessian cover was spread out under the roof to protect the cloth under manufacture from dust. The victim in that case who was a jobber in the weaving department went to cut a portion of the cover to admit more light but in doing so he got entangled in the belt and was killed. His widow applied for compensation under the Workmen's Compensation Act. It was held that the widow was entitled to recover compensation because her deceased husband the workman was engaged in removing the hessian cloth which was incidental to his work and was done in the performance of his duty and arose out of and in the course of his employment. In this decision the Bombay High Court has quoted with approval a passage from Rueggs Workmen's Compensation 9 edition. That passage reads as follows:

If a workman is injured whilst doing his work which although not strictly the work required of him by the terms of his contract is yet such as a reasonable employer had he been present would reasonably be expected to acquiesce in the workman performing in the special circumstances (although strictly not an emergency) and if such work is for the employers benefit and such as the workman is competent to perform then the Workmen in such a case is not outside the scope or sphere of his employment and is within the protection of the Act. There are two propositions which emerge out of this passage. The first proposition is this: what is a workman supposed to do in special circumstances ? The second proposition is this: Had he been doing something in special circumstances in which his employer would have acquiesced ? In the instant case the town-hall belongs to the Municipality. It had been rented out to the State Bank of India. If the roof of the town-hall which had been displaced by the stormy wind and rains had not been refixed not only the building of the town-hall would have suffered damage but valuable records of the State Bank of India would have also been irredeemably spoilt or damaged. These were to put the case at a lower end the special circumstances in which the deceased Ghanshyam had climbed the roof of the town hall in order to refix it. We have no doubt in our mind that his employer the Godhra Municipality though it has been contesting the present petition would have otherwise acquiesced in his doing this work not only for the benefit of the Municipality his employer but also for the benefit of the State Bank of India his employers tenant. The special circumstances under which the deceased Ghanshyam had climbed the roof of the town-hall constituted an emergency. The principle laid down in the aforesaid passage from Rueggs Workmen's Compensation applies to the instant case with greater vigour and force.

(21.) In Rees v. Thomas (1899) I.Q.B. 1015 a fireman who was employed in a coal-mine had been carrying in the course of his duty a report of the state of the mine from the pits mouth to the office. The horse drawing the tramway truck in which he had been riding ran away and in endeavoring to stop it he fell down and was killed. Such a workman was held to be entitled to compensation under the Workmen's Compensation Act 1897 of Great Britain. It has been observed in that behalf by the Court of Appeal that an accident which happens to a workman who while in his masters employment and on his masters work does upon an emergency an act in the interests of his master outside the scope of what he was employed to do and suffers injury while doing the act is within the purview of the said British Act It was therefore held that the accident in that case arose out of and in the course of the workman's employment within the meaning of that Act. The considerations therefore which apply while determining the causal relation ship between the terms of the employment of a workman and the cause which led to the accident where there are special circumstances or where there is an emergency are different from those which apply to ordinary cases. It must be naturally so. In the instant case in ordinary course of employment the deceased Ghanshyam had been attending to his work in the garden attached and appurtenant to the town hall. While he had been performing his duties the roof of the town-hall was displaced by stormy wind and rains. He therefore in order to protect the interest of his master climbed the roof of the town-hall to refix it. While he had been doing that work he fell down from the top of the town-hall and suffered a fatal injury. We have no doubt in our mind that under these circumstances the accident arose out of his employment. It is not in dispute before us that the deceased Ghanshyam had gone upto the roof of the town hall during his working hours. Compensation of Rs. 3600 with interest and costs awarded. Appeal allowed.