B. Bhattacharya, J. - (1.) This revisional application under Article 227 of the Constitution of India at the instance of General Manager, South Eastern Railway is directed against order, dated May 6, 1994 passed by the Commissioner, Workmen's Compensation, West Bengal, in Claim Case No. 435 of 1991 thereby holding that the husband of the opposite party was a workman within the meaning of Workmen's Compensation Act, 1923 (1923 Act), and as such the claim case filed by the opposite party claiming compensation for the accidental death of her husband was maintainable. The only question that arises for determination in this application under Article 227 of the Constitution is whether a head constable under Railway Protection Force is a workman within the meaning of the 1923 Act.
(2.) For appreciation of the respective submissions of the counsel for the parties it will be profitable to refer to the provisions contained in Sections 3, 10 and 19 of the Railway Protection Force Act, 1957 (RPF Act), as it stood on the date of accident and also the provision contained in Section 2(b) of the 1923 Act. The provisions are quoted hereunder: "Section 3. Constitution of the Force. - (1) There shall be constituted and maintained by the Central povernment an armed force of the union to be called the Railway Protection Force for the better protection and security of Railway property. (2) The Force shall be constituted in such manner, shall consist of such number of superior officers and members of the Force and shall receive such pay and other remuneration as may be prescribed. Section 10. Officers and enrolled members of the Force to be deemed to be Railway servants. - The Director-General and every member of the Force shall for all purposes be regarded as Railway servants within the meaning of the Indian Railway Act, 1890 (9 of 1890), other than Chapter. VI-A thereof, and shall be entitled to exercise the powers conferred on Railway servants by or under that Act. Section 19. Certain Acts not to apply to members of the Force. - Nothing contained in the Payment of Wages Act, 1936, or the Industrial Disputes Act, 1947 or the Factories Act, 1948, or any corresponding law relating to investigation and settlement of industrial disputes in force in State shall apply to members of the force. 2(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) a Railway servant as defined in Section 3 of the Indian Railways Act, 1890 (9 of 1890), not permanently employed in any administrative, district or sub-divisional office of a Railway and not employed in any such capacity as is specified in Sch. II; or (ii) employed in any such capacity as is specified in Seh. 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 and reference to a workman who has been injured shall where the workman is dead include a reference to his dependants or any of them. (2) The exercise and performance of the powers and duties of a local authority or of any departmental action on behalf of the Government shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department. (3) The State Government after giving by notification in the Official Gazette, not less than three months' notice of its intention so to do, may by a like notification, add to Sch. II any class of persons employed in any occupation which it is satisfied is a hazardous occupation, and the provisions of this Act shall thereupon apply within the State to such class of persons; Provided that in making such addition the State Government may direct that the provisions of this Act shall apply to such classes of persons in respect of specified injuries only."
(3.) Sri Sen, the learned advocate appearing on behalf of the petitioner, contends that the deceased employee being a member of the armed forces cannot be said to be a workman within the meaning of the 1923 Act inasmuch as Section 2(n) of the 1923 Act specifically excludes a person working in the capacity of a member of the armed forces of the Union. According to Sri Sen, the finding of the learned Commissioner that the phrase "armed forces of the union" means only naval, military or air forces of union cannot be sustained in view of the clear language employed in the said section.;