Line Vellore – 632 001.2.Presbyter Incharge CSI Katpadi Pastorate Katpadi, Vellore District v. Mariappan2.A.C.Rajan

VS.1.Amudha2.A.C.Rajan... Respondents /Petitioner and3rd Respondent (Cause Title accepted vide order dated 25.07.2006 made in M.P.No.1/2006 in C.M.A.SR.Nos.49361, 64, 67, 70, 73, 76, 79, 82, 85, 88, 91 and 49394/2006)PRAYER: Civil Miscellaneous Appeal filed under Section 30 of theWorkmen's Act, 1923 to set aside the order of the Commissioner forWorkmen's Compensation I, Chennai – 6 (Deputy Commissioner ofLabour I, Chennai-6) dated 22.03.2006 in W.C.No.302 of 2002 andallow the appeal.C.M.A.NO.2245 OF 20061.Bishop CSI Diocese of Vellore 1/A Officers Line Vellore – 632 001.2.Presbyter Incharge CSI Katpadi Pastorate Katpadi, Vellore District.... Appellants/Respondents 1&2 VS.1.Savithri W/o Ramu2.A.C.Rajan... Respondents (Cause Title accepted vide order dated 25.07.2006 made in M.P.No.1/2006 in C.M.A.SR.Nos.49361, 64, 67, 70, 73, 76, 79, 82, 85, 88, 91 and 49394/2006)PRAYER: Civil Miscellaneous Appeal filed under Section 30 of theWorkmen's Act, 1923 to set aside the order of the Commissioner forWorkmen's Compensation I, Chennai – 6 (Deputy Commissioner ofLabour I, Chennai-6) dated 22.03.2006 in W.C.No.172 of 2003 andallow the appeal.For Appellants:Mr.T.R.SundaramFor Respondent-1(in all CMAs'):Mr.V.K.RajagopalanGovernment Advocate https://hcservices.ecourts.gov.in/hcservices/ CONT.P.NO.1668 OF 20071.Bishop CSI Diocese of Vellore 1/A Officers Line, Vellore – 632 001.2.Presbyter Incharge CSI Church Katpadi, Vellore District.... PetitionersVS.Mr.R.K.RavishankerDeputy Commissioner of Labour-IOffice of the Commissioner for Workmen CompensationChennai – 600 006.... Respondent PRAYER: Petition filed under Section 11 of the Contempt of CourtsAct, 1971 to punish the respondent for non-compliance of the orderdated 01.08.2006 passed in M.P.No.2 of 2006 in C.M.A.No.2234 of2006 on the file of this Court. For Petitioners:Mr.T.R.SundaramFor Respondent:Mr.R.Murali(in Cont P.No.1668/07Government Advocate For Respondent No.1 in all CMAs: Mr.V.K.RajagopalanC O M M O N J U D G M E N TThese Civil Miscellaneous Appeals and the ContemptPetition came to be listed under the caption "specially ordered"vide order dated 21.04.2011 by the Hon'ble Chief Justice. 2.Heard Mr.T.R.Sundaram, learned counsel for theappellants in all the Civil Miscellaneous Appeals and for thepetitioner in Cont.P.No.1668 of 2007 and Mr.T.S.Gopalan, learnedcounsel appearing for the caveators in all the Civil MiscellaneousAppeals and Mr.R.Murali, learned Government Advocate appearing forthe respondent contemnor in the contempt petition.3.In view of the fact that all the Civil MiscellaneousAppeals arose out of the orders passed by the Commissioner forWorkmen's Compensation–I, Chennai – 6, (Deputy Commissioner ofLabour – I, Chennai) in various W.C. Cases, which arose out of thesame incident, which occurred on 09.05.2002, they were heardtogether and a common judgment is passed. The contempt petitionarose out of the order dated 01.08.2006 passed in M.P.No.2 of 2006in C.M.A.No.2234 of 2006 and the same was also tagged along with https://hcservices.ecourts.gov.in/hcservices/ the Civil Miscellaneous Appeals. Since it was felt that theoutcome of the various Civil Miscellaneous Appeals will decide thefate of the contempt, arguments were heard in all the petitions.4.The appellants are the Bishop of C.S.I. Diocese ofVellore and the Presbyter Incharge of C.S.I. Katpadi Pastorate atKatpadi, Vellore. The 12 Civil Miscellaneous Appeals arose out ofthe order dated 22.03.2006 passed in W.C.Nos.301 of 2002, 4 of2003, 5 of 2003, 6 of 2003, 271 of 2002, 272 of 2002, 273 of 2002,274 of 2002, 275 of 2002, 300 of 2002, 302 of 2002 and 172 of 2003by the Commissioner for Workmen's Compensation I, Chennai – 6(Deputy Commissioner of Labour I, Chennai-6). The appeals werefiled under Section 30 of the Workmen's Compensation Act, 1923(shortly "the Act"). Proviso to Section 30(1) of the Act clearlystates that no appeal was shall lie against any order, unless asubstantial question of law is involved in the appeal. Buthowever, when the matters were admitted on 01.08.2006, no questionof law has been framed by this Court. In the memorandum ofappeals, according to the learned counsel for the appellants, thefollowing questions of law arose for consideration:-"Substantial Question of Law involved in this appeal1)Whether the provisions of W.C.Act apply to theAppellants 1 and 2, and can they be termed as"Employer" in accordance with Sec. 2(c) of theW.C. Act.2)Is not the 2nd Respondent liable to answer theclaim of the 1st respondent, as construction workis not a trade and business of the Appellants 1and 2 within the meaning of Sec.12 of the W.C.Act.3)Is the claim of the 1st Respondent maintainableagainst Appellants 1 and 2 who are neither"Employer" nor "Principal Employer" to the 1stRespondent."But there is no indication in the order sheet that this Court hadagreed with those questions of law. Those draft questions of laware provided by the learned counsel for the appellants. 5.The facts leading to the filing of these CivilMiscellaneous appeals are as follows:-(a) The second respondent in these appeals is an Architectby profession and having his office at Chennai. The appellants, inorder to execute a project, including building of new Churchcomprising of ground and floors and also a compound wall in theland owned by them at Katpadi, Vellore, entered into an agreement.When the project was undertaken, the contesting respondents(caveators) were engaged as construction workers in the project atKatpadi – Chittoor Road, near C.S.I. Church. https://hcservices.ecourts.gov.in/hcservices/ (b) On 09.05.2002, during the course of their employment,while the centering work was progressing, the materials formingpart of the centering work, fell down on the contestingrespondents (caveators) and they suffered grievous injuries due tothe falling of the roof of the Church constructed by theappellants 1 and 2. The construction workers namely the contestingrespondents (caveators) suffered injuries, which required minimummedical treatment. Initially, they have taken to the GovernmentHospital at Vellore and thereafter, shifted to the C.M.C.Hospital, Vellore for further treatment. (c) The accident in which the building collapsed gave riseto a criminal case which was registered in the Katpadi PoliceStation as Crime No.188/2002 under Sections 278, 336, 337 and 338IPC. (d) The contesting respondents (caveators) thereafterfiled applications claiming compensation before the DeputyCommissioner of Labour – I, Vellore (Notified Workmen'sCompensation Commissioner) claiming compensation as the accidentarose during the course of their employment. He also gave thevarious rates of daily wages which were paid to them in most ofthe cases. The daily wages work out to Rs.70/- per day. TheDeputy Commissioner of Labour – I, Vellore, took on file thoseapplications and assigned various W.C. numbers as noted above andissued notice to the appellants as well as to the secondrespondent. (e) Before the Deputy Commissioner of Labour – I, thefirst respondent took a plea that there was no employer - employeerelationship between the contesting respondents (caveators) and inbuilding the Church, no trade or business was carried out and thefollowers of Christianity paid contributions for construction ofthe Church. The Church is main for religious and ecclesiasticalpurposes. Hence, the Act will not apply to the activities carriedon by them and even in the engagement of the respondents(caveators) there was no privity of contract. It was only thesecond respondent, who was engaged for constructing the Church andhe alone is the employer. (f) The second appellant - Presbyter Incharge andSecretary of C.S.I. Katpadi Pastorate, Katpadi adopted the sameargument and also added that since the second respondent is aContractor, who had engaged more than 50 workers and supplyingnecessary materials for construction activities, under theprovisions of the Building and Other Constructions Workers(Regulation of Employment and Conditions of Service) Act, 1996,there is no liability for him to pay any compensation. The secondrespondent stated that he was only an Architect and on behalf ofthe appellants, he was doing the designing work, which was done asper the directions of the appellants 1 and 2. He further statedthat the construction work of the building was owned by appellants https://hcservices.ecourts.gov.in/hcservices/ 1 and 2 and without prejudice to the above, it is submitted thatthe injuries suffered by them does not require any compensation. (g) Apart from each of the contesting respondent(caveator) were examined as P.W.1, Dr.Riyaz Ahmed was examined asP.W.2. The F.I.R., wound certificate, the agreement between theappellants and the second respondent as well as the disabilitycertificates were filed. On behalf of the appellants, oneKarunakaran was examined as R.W.1 and the second respondent wasexamined as R.W.2. On their side, the agreement between theappellants and the second respondent, appointment of secondrespondent as a building consultant and the agreement between thecontractor are filed. (h) The Commissioner for Workmen's Compensation - I,Vellore, has framed the following four issues in each of theappeal:(a) Whether the contesting respondents (caveators)were injured during the course of their employment,while working under the appellants 1 and 2 and thesecond respondent. (b) what are the age and wages paid to therespondents?(c) the compensation to which they are entitledto ?(d) if so, who should pay the compensation ?(i) The Commissioner, after analysing the evidences, bothoral and documentary, found that the accident took place on09.05.2002 at around 09.00 a.m., when the concrete floor pavingand the contesting respondents (caveators) were sustained injuriesand they were admitted to Hospital. With reference to the wages,it was ascertained as Rs.70/- per day and there was no disputeregarding the age of the workers. He also found that theappellants 1 and 2 are the owners of the building and the secondrespondent was a contractor and the actual contract was carried onby Mr.Manoharan and Mr.Sanjeevirayan. The Commissioner also foundthat the second respondent was working as an Architect consultant,but however, he had brought men and materials and that thebuilding was owned by appellants 1 and 2. Therefore, decided thedisability as per the oral and documentary evidence given by P.W.2– Doctor. With reference to the disability, after ascertainingthe percentage, the authority fixed the age of each of the workerand calculated compensation by holding that the workmen weredrawing Rs.70/- per month. The authority also held that theminimum wages fixed in terms of G.O.(2D) No.29, dated 24.04.2000worked out to Rs.2914.34 and therefore, even in the absence of anywage slip, it can be safely presumed that they were paid minimumwages. With reference to the liability to pay compensation, theauthority found that the second respondent was engaged on contractbasis by estimating the cost of work at Rs.40,00,000/- and he wasto supply men and materials for the work. The second respondent https://hcservices.ecourts.gov.in/hcservices/ also admitted that he was the one, who paid wages to thecontractor Mr.Manoharan. But nevertheless, as per the agreement,the second respondent was engaged by appellants 1 and 2 andthrough him, the work was carried out on behalf of the appellantsand therefore, they are liable to pay compensation together withinterest. The compensation worked out to Rs.1,78,226/- in the caseof the contesting respondent (caveator) in C.M.A.No.2234 of 2006.In respect of others, the compensation varied depending upon theage factor of each of the contesting respondent (caveator).Challenging the orders passed by the Commissioner for Workmen'sCompensation, the Civil Miscellaneous Appeals came to be filed. 6.Assailing the findings rendered by the Commissioner forWorkmen's Compensation, it is contended by the appellants thatthey are not employers in terms of Section 2(c) of the Act andthere was no privity of contract and since the second respondentis only a Contractor and he has engaged the other contractors, theliability should only fall on them. Even assuming that theappellants are termed as employers and the second respondent is acontractor, the construction work was not due to any trade orbusiness and therefore, they are not liable to pay anycompensation. 7.With reference to the application of the Act, it must benoted that the contesting respondents (caveators) wereconstruction workers and the activities in which they wereemployed is a building activity, Section 38 of the Building andOther Constructions Workers (Regulation of Employment andConditions of Service) Act, 1996 (Central Act, 27 of 1996)specifically applies the provisions of the Workmen's CompensationAct, 1923. Apart from that, in the State of Tamil Nadu, it isalso a special enactment, namely, the Tamil Nadu building andConstruction Workers (Conditions of Employment and MiscellaneousProvisions) Act, 1984 (Tamil Nadu Act, 29 of 1986) and Section 40(1) applies the provisions of the Workmen's Compensation Act,1923, in relation to building and construction workers. The term 2(g) defining employer is an inclusive definition and by which, itwas made clear that inclusive of contractor and the principalemployer, the term establishment is defined under Section 2(h) bywhich it is stated that any establishment engaged in the work ofcompleting construction or the work of engineering construction iscovered by the provisions of the Act. Under Section 37 of thesaid Act, any agreement, which is inconsistency of provisions ofthe Act are not valid. Therefore, it is too late in the date forthe appellants to contend that they are not employers and therewas no privity of contract between them and the contestingrespondents (caveators). It is unnecessary whether the activitiescarried on in constructing the Church and other project has anytrade or business over to, since by incorporation the provisionsof the Act are made applicable to construction workers also. https://hcservices.ecourts.gov.in/hcservices/

8.With reference to the disability, the Commissioner hasrelied upon the evidence of P.W.2 – Doctor and had agreed with theoral and documentary evidence produced by him and the Act,certainly after prescribing Schedule – I providing for variouspercentage of loss of earning capacity / loss of life, does notrule out the compensation being ascertained on account of thedisablement proved by the medical evidence. 9.Therefore, this Court do not find any substantialquestion of law. The Commissioner has correctly appreciated theevidence put in before him and came to the conclusion that it isthe appellants, who are liable to pay compensation. By enteringinto an agreement with the second respondent, the appellantscannot absolve their liabilities to pay compensation. Under thecircumstances, this Court is not inclined to interfere with thewell considered orders passed by the Commissioner of Workmen'sCompensation, in various W.C. cases and hence, C.M.A.Nos.2234 to2245 of 2006 stand dismissed. But due to the peculiar facts andcircumstances of the case, the parties are allowed to bear theirown costs. Cont.P.No.1668 of 2007It is seen from the records that the appellants receivedthe order of the Commissioner on 28.03.2006. The statutorylimitation of 60 days expired on 27.05.2006. But the Commissioner,on 05.06.2006, issued a recovery notice in respect of all thecases. The appellants deposited the entire amount of compensationby way of two demand drafts on 23.06.2006. The Commissionerencashed the amount on 30.06.2006 and 03.07.2006. On 06.07.2006,the Commissioner informed the claimants that they are at libertyto withdraw the amount. On 06.07.2006, the awarded amounts weredisbursed to the claimants. It is only on 07.07.2006, the receiptsof the deposits were collected by the appellants. On 21.07.2006,the appellants informed the Commissioner that appeals have beenpreferred. On 01.08.2006 in C.M.P.No.2/2006, inC.M.A.No.2234/2006, an interim order was granted. But in spite ofthe information of pendency of the appeals (though at defectiveS.R. Stage) the amounts were disbursed to the employees on06.07.2006. Therefore, when the appellants came to receive thereceipts, they were informed that the amounts were alreadydisbursed to the workers. Despite the same, being aware of theamounts already been disbursed, the appellants moved this Courtwith the Civil Miscellaneous Appeals and also got interim order.Thereafter, on the alleged disobedience of the order dated01.08.2006 passed in M.P.No.2 of 2006 in C.M.A.No.2234 of 2006,the contempt petition came to be filed against the DeputyCommissioner of Labour – I, Office of the Commissioner for WorkmenCompensation, Chennai and notice was ordered. On notice, acounter affidavit dated 08.12.2007 was filed by the Commissioner.According to the appellants, the Commissioner has committed wilfuldisobedience of the order passed by this Court. However, the https://hcservices.ecourts.gov.in/hcservices/ facts and circumstances of the case clearly indicates that therewas no disobedience of the order of this Court. In fact, the orderwas obtained after the disbursement of the amounts to the workersby the Commissioner and hence, this Court do not find that therewas disobedience, much more, any wilful disobedience, to punishthe respondent. This Court accepts the explanation offered by therespondent. Hence, the Contempt Petition also stands dismissed. TKSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Deputy Commissioner of Labour-IOffice of the Commissioner for Workmen CompensationChennai – 600 006.Copy to:The Section Officer,VR Section, High Court,Madras.12 ccs to Mr. T. R. Sundaram, Advocate SR No.33077 to 33088CK(CO)SR/27.6.2011 COMMON JUDGMENT MADE INC.M.A.NOS.2234 TO 2245 OF 2006AND CONT.P.NO.1668 OF 2007