JANARDAN SAHAI,J. - (1.) HEARD Dr. R.G. Padia, learned senior counsel assisted by Sri P. Padia, learned counsel for the petitioner and Sri Noorul Huda, learned Standing Counsel for the respondents.
(2.) THE Workmen's Compensation Commissioner, Kanpur ordered for the payment of a sum of Rs. 44,405.28 paisa as compensation for injuries sustained on 10 -11 -1989 by the respondent No. 2 who had filed the claim. This is the order impugned in this writ petition. Dr. R.G. Padia, learned Senior Counsel on the question of alternative remedy under Section 30 of the Workmen's Compensation Act available to the petitioner, which is the employer university Chandra Shekhar Azad University of Agriculture and Technology, Kanpur Nagar submitted that the second respondent was not a workman within the meaning of Section 2(n) of the Workmen's Compensation Act. It is submitted that the definition excludes employment of casual nature or employment otherwise than for the purpose of the employers trade or business and that the respondent No. 2 was employed on daily wage basis for the period between 1987 and 1992 during which the alleged accident occurred and as such his employment was of casual nature. I am not inclined to accept the submission. The employment continued for a long time from 1987 to 1992 and it cannot be said to be a casual or chance employment merely from the fact that he was a daily wage worker. It has been stated in paragraph 1 of the application filed under Section 10 of the Workmen's Compensation Act that the injured respondent No. 2 was the employee of the opposite party since 11 -8 -1987 to 13 -11 -1992 on daily wages in the department of Home Science and continued his service without any interruption. In paragraph 1 of the objection filed by the petitioner it has been admitted that the respondent No. 2 was in the service of opposite party as daily wage workman from 11 -8 -1987 to 13 -11 -1992. No case has been taken in the objection that the respondent No. 2 was not a workman within the meaning of the Workmen's Compensation Act and therefore the fact of his being a workman was not under dispute and also in view of the fact that the said employment continued for substantial length of time, the submission made by the learned counsel for the petitioner that the employment should be treated as that of casual nature, therefore, excluded from the definition of the workman can not be accepted. The second submission is that the respondent No. 2 was not employed in any such capacity as is specified in Schedule II of the Act and for that reason also he is excluded from the definition of workmen. In the objection filed by the petitioner there is no description about the nature of the duties or activity of the respondent No. 2 and there was no denial of the fact that the petitioner was a workman. The question involved is one of fact to be proved by evidence and it was necessary for the employer to have taken a specific objection to this effect so as to invite a decision by the Workmen's Compensation Commissioner on that point. Apart from this the burden of proof that the claimant is not a workman lay upon the employer vide 1998(79) FLR 806, Mangla Ben v. Dilip Motwani. The respondent No. 2 had clearly alleged that he was employed in the Home Science Department of the University on daily wage basis. It was for the university to deny the averment and that not having been done, the submission that the respondent No. 2 was excluded from the definition of workman cannot be accepted.
(3.) IT was then submitted that the third proviso of Section 30 which requires the employer to file a certificate about the deposit of the compensation before the commissioner as a pre - condition for maintaining an appeal is ultra vires Article 14 of the Constitution of India.;