Manager UCO Bank ICF Branch Chennai 600 038... v. A.Kumar No.29, Pattachari Street Ayanavaram Chennai 600 033...

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.11.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1549 of 2001ManagerUCO BankICF BranchChennai 600 038...AppellantVs.A.KumarNo.29, Pattachari StreetAyanavaramChennai 600 033...RespondentThis Civil Miscellaneous Appeal has been filed under Section30 of the Workmen's Compensation Act, 1923 as against the order ofthe Commissioner for Workmen's Compensation - I/Deputy Commissionerof Labour - I, Chennai dated 06.06.2001 made in W.C.No.58/98.For Appellants: Mr.Srinath SridevanFor Respondent: Mr.M.RamamoorthyJ U D G M E N TThe opposite party in W.C.No.58/98 on the file of theCommissioner for Workmen's Compensation-I/Deputy Commissioner ofLabour-I, Chennai has brought-forth this appeal under Section 30 ofthe Workmen's Compensation Act against the order of the saidCommissioner dated 06.06.2001 directing the appellantherein/opposite party to pay a sum of Rs.1,24,788/- as compensationfor the injuries sustained by the respondent herein/claimant. 2. The respondent herein/applicant had preferred a claim onthe file of the Commissioner for Workmen's Compensation-I/DeputyCommissioner of Labour-I, Chennai under Section 10 of the Workmen'sCompensation Act in W.C.No.58/98 for the injuries sustained by himon 04.12.1997 from the appellant herein/ opposite party making thefollowing allegations:-The respondent herein/applicant is a "Kal Thatcher" and he wasengaged by the appellant/opposite party to do some plumbing work inits office building. He was asked to bore a hole in the roof wallof the bank building and on 04.12.1997 while he was doing so, he https://hcservices.ecourts.gov.in/hcservices/ sustained electric shock which ultimately led to a permanentdisability at the rate of 60%. The respondent herein/ applicantwas engaged by the manager of the appellant bank/opposite party ondaily wage basis at the rate of Rs.140/- per day. Subsequent tothe accident, the respondent's/applicant's services wereterminated. He was aged about 30 years at the time of accident. Aclaim was made against the respondent/opposite party through'Nirman Mazdoor Panchayat Sangam', but the appellant/ oppositeparty did not even give a reply. Therefore, therespondent/applicant was constrained to move an application forcompensation under Section 10 of the Workmen's Compensation Actbefore the Commissioner for Workmen's Compensation against theappellant/opposite party. 3. The claim was resisted by the appellant/opposite party byputting in a counter statement denying the averments made in theapplication to the effect that the respondent/ applicant was aworkman under the appellant bank and hence he was entitled to claimcompensation under the Workmen's Compensation Act from theappellant/opposite party. It was also contended therein that theappellant/opposite party never engaged the respondent/applicant tocarry out the alleged plumbing work in the office building of theappellant/opposite party; that on the other hand, one Jayakumar, aresident of Chakravarthy Nagar, Ayanavaram, Chennai and plumber byprofession alone was engaged by the appellant bank/opposite partyto lay a pipe for giving connection from the overhead tank to thewater cooler fixed in the first floor of the building; that thesaid Jayakumar carried out the work and received remuneration forthe said work; that there was no necessity, whatsoever, for any oneto bore the roof as alleged by the respondent/applicant; that therespondent/applicant appeared to be a friend of Jayakumar and heseemed to have sustained a mild electric shock and that there wasno occasion for the appellant/opposite party to give treatment tothe appellant. The appellant/opposite party had also denied thealleged disability sustained by the respondent/applicant. Theappellant/opposite party also submitted in the counter statementthat even if the respondent/applicant might have suffered anydisability, the same was not the result of any accident arising outof and in the course of his employment under the appellant/oppositeparty and that hence the claim made by the respondent/applicant forcompensation against the appellant/opposite party was notmaintainable either in law or on facts. It was also contendedtherein that the respondent/applicant was not entitled to a sum ofRs.3,89,000/- as claimed by him as compensation. Based on the saidpleadings, the appellant/opposite party had prayed for thedismissal of the claim petition preferred by therespondent/applicant. 4. The lower authority, namely Commissioner for Workmen'sCompensation, Chennai conducted an enquiry in the said workmen'scompensation case in which three witnesses were examined as A.W.1to A.W.3 and five documents were marked as Ex.A1 to Ex.A5 on the https://hcservices.ecourts.gov.in/hcservices/ side of the respondent herein/applicant, whereas one witness wasexamined as R.W.1 and one document was marked as Ex.B1 on the sideof the appellant herein/opposite party. The learned Commissionerfor Workmen's Compensation, after considering the evidence, came tothe conclusion that the petitioner was a workman under theappellant/opposite party and that he met with an accident arisingout of and in the course of his employment under theappellant/opposite party which resulted in 50% disability.Consequently the Commissioner passed an order directing theappellant/ opposite party to pay a sum of Rs.1,24,788/- ascompensation to the respondent/applicant together with an interestat the rate of 12% per annum. 5. Aggrieved by and challenging the said order of the learnedCommissioner for Workmen's Compensation - I, Chennai, theappellant/opposite party has brought-forth this appeal on variousgrounds set out in the memorandum of appeal.6. An appeal under Section 30 of the Workmen's CompensationAct against the award of the Commissioner for Workmen'sCompensation shall lie to the High Court only on a substantialquestion of law. Hence it goes without saying that no appeal shalllie on a question of fact. However, when a finding on a questionof fact is perverse, then the same shall assume the character of asubstantial question of law. At the time of admission of the civilmiscellaneous appeal, the following two questions were framed assubstantial questions of law involved in the appeal:-i. Whether the respondent as a casual worker havingworked for only one day, will become a worker under theappellant Bank within the meaning os Section 2 of theWorkmen's Compensation Act, 1923?ii. Whether the reliance on Section 12(2) of theAct will be correct in law to award compensation to therespondent on the ground that he would be considered asan employee under P.W.3 as contractor when theirrelationship had been denied by the respondent?7. It is the case of the respondent/applicant that he was aworkman directly engaged by the appellant/opposite party to doplumbing work in the bank building of the appellant/opposite partyon daily wages at the rate of Rs.140/- per day and that he met withan accident arising out of and in the course of his employmentunder the appellant/opposite party. The contention of therespondent herein/applicant was that on the fateful day, namely04.12.1997, while the respondent/applicant was engaged in drillinga hole in the roof of the building, he sustained electric shock.The same has not been specifically denied. On the other hand, itis the specific contention of the appellant/opposite party thatthere was no privity of contract between the appellant/oppositeparty and the respondent/applicant; that the respondent/applicant https://hcservices.ecourts.gov.in/hcservices/ was not at all engaged by the appellant/opposite party to do anywork; that the claim of the respondent/applicant as if he was aworkman under the appellant/opposite party was totally a false one;that one Jayakumar, a plumber was engaged on contract basis by theappellant/opposite party to do some plumbing work in the bankbuilding to give a pipe connection from the overhead tank to thewater cooler in the first floor of the building; that therespondent/applicant who happened to be a friend of said Jayakumar,while helping him sustained a mild electric shock and that sincethere was no privity of contract between the appellant/oppositeparty and the respondent/ applicant, the claim of compensation madeunder Section 10 of the Workmen's Compensation Act against theappellant/opposite party should be rejected as not maintainable.The respondent/applicant examined one Dr.J.R.R.Thyagarajan asA.W.1. The respondent/applicant himself deposed as A.W.2. A.W.3Jayakumar is the person mentioned by the appellant/opposite partyas the plumber engaged by the bank on contract basis to do someplumbing work in the bank building. 8. The respondent herein/applicant (A.W.2) would state that hewas engaged by the manager of the appellant bank and he was askedto drill a hole on the roof of the second floor of the bankbuilding and that while he was doing so, he suffered an electricshock as a result of which he sustained injuries leading topermanent disability. A.W.1 has spoken about and the nature ofaccident, nature of injury and permanent disability sustained bythe respondent herein/applicant. Even though the respondentherein/applicant, in his evidence in chief might have stated thathe was engaged by the manager of the appellant bank, in the cross-examination he would state that he did not have any document toshow he was engaged by the manager on daily wage basis at the rateof Rs.140/- per day. If at all it is true that he was engaged as adaily wager or on adhoc basis in the bank, he would have gotdocuments to show that he was engaged by the Manager of the bank.How long was he employed as a worker in the appellant bank? - hasnot been clearly spoken to by the respondent herein/applicant. Noteven a scrap of paper has been produced to show any paymentreceived by the respondent herein/applicant from the appellantbank. 9. Jayakumar who was examined as A.W.3 has stated that healone was engaged by the Manager of the appellant bank and that hedid not engage the respondent/applicant as his helper. On theother hand, the manager of the appellant bank was examined asR.W.1. He would clearly state that he engaged A.W.3 Jayakumar aplumber to give pipe connection from the overhead tank to the watercooler on 04.12.1997 for one day alone; that a sum of Rs.485/- waspaid to Jayakumar towards material cost and labour charge. For thepayment of Rs.485/- the said Jayakumar has issued Ex.B1 receipt.But he would contend that the said amount was paid only as materialcost and he was paid a further sum of Rs.200/- as labour charge forwhich no receipt was obtained. Ex.B1 would show that the said https://hcservices.ecourts.gov.in/hcservices/ amount of Rs.485/- was paid to A.W.3-Jayakumar towards materialcost as well as labour charge.10. The learned counsel for the appellant/opposite party,while submitting his arguments, contended that even though therespondent/applicant had claimed to have been employed directly bythe Manager of the appellant bank when he met with the accident,the learned Commissioner for Wokemen,s compensation did not believethe same and on the other hand came to the conclusion that theappellant bank engaged only a plumber by name Jayakumar and thesaid Jayakumar, in turn, engaged the respondent/applicant to assisthim; that the same was the reason why the learned Commissioner hadheld the said Jayakumar and the appellant bank to be the immediateemployer and principal employer respectively; that hence therejection of the respondent's/applicant's claim to have beendirectly engaged by the bank had become final. The learnedCommissioner for Workmen's Compensation has made the followingobservations, which is reproduced in the very same vernacular:" jpU b$af;Fkhh; xU gpsk;gh;/ mth; FHha;rk;ge;jg;gl;l ntiyiajhd; bra;thh;/ igg; ,izg;g[ bfhLg;gjw;F nky;jsj;jpy; Xl;il nghLtjw;F. Rth;fspy;Xl;il nghLtjw;F jsj;ij-kw;Wk; Rth;fis cilg;gjw;F fy;jr;rh; njit/ fy; jr;rh; ,y;yhky; vj[h;kDjhuh; bfhLj;jntiyia gpsk;gh; jpU b$af;Fkhh; xUtuhy; kl;Lk;bra;aKoahJ/ Mifahy; jpU b$af;Fkhh; mtUf;F cjtpahf ,e;j ntiyf;F kDjhuiu Tl;o te;J ,Uf;fpwhh; vd;gJkDjhuh; jug;gpy; jhf;fy; bra;ag;gl;Ls;s k/rh/M/5y; ,Ue;JbjhpfpwJ/"Ex.A5 is a copy of the letter in reply to the representationmade by the State President, "Nirman Mazdoor Panchayat Sangam",Ayanavaram, Chennai-23. In the said letter it was made clear thatthe bank did not directly engage the respondent/applicant to do anywork; that there was no privity of contract between the appellantbank and the respondent/claimant and that the contractor by nameJayakumar, engaged to do plumbing work seemed to have engaged therespondent/applicant to assist him. Only after accepting the saidcontention of the appellant bank, the learned Commissioner forWorkmen's Compensation has chosen to hold the appellant/oppositeparty liable to pay compensation to the respondent/applicant as aprincipal employer by virtue of Section 12(1) of the Workmen'sCompensation Act. It shall be obvious from the followingobservation made by the Commissioner for Workmen's Compensation inhis order which is impugned in this appeal:" vjph;kDjhuh; jpU b$af;FkhUf;F xg;ge;j mog;gilapy; gpsk;gp'; ntiybfhLj;jpUe;jhYk;. MtUld; te;j cjtpahsUf;F tpgj;J Vw;gl;lhy;. gphpd;rpgy; https://hcservices.ecourts.gov.in/hcservices/ vk;g;shah; vd;w Kiwapy; vjph;kDjhuh; ntiyahy; ,Hg;gPl;Lr; rl;lk; 1923.gphpt[ 12(1)d; fPH; ,Hg;gPL tH';f bghWg;g[ilath; vd;W Kot[ bra;fpnwd;/vdnt ,e;j tpgj;jpw;F ,Hg;gPl;Lj; bjhif kGtija[k; vjph;kDjhuh; tH';fntz;Lbkd;W cj;jutpLfpnwd;/"11. For all the reasons stated above, this court comes to theconclusion that the learned Commissioner for workmen's compensationhas given a clear finding on the question of fact that therespondent's/applicant's claim of having been directly engaged bythe appellant bank/opposite party as a workman was not true andthat A.W.3 - plumber Jayakumar alone was directly engaged by theappellant bank and the said Jayakumar, in turn, engaged therespondent/applicant to assist him. Only in view of such a finding,the learned Commissioner for Workmen's Compensation held the saidJayakumar to be immediate employer and the appellant bank to be theprincipal employer to fix the liability for payment of compensationto the respondent/claimant, on the appellant under Section 12 ofthe Workmen's Compensation Act. Therefore, the findings of thelearned Commissioner for Workmen's Compensation that there was noprivity of contract between the appellant and the respondent andthat the respondent/claimant cannot be construed to be a workerdirectly engaged by the appellant/opposite party have become final.12. The next question to be considered shall be whether theappellant/opposite party could be construed to be the principalemployer. It is not in dispute that A.W.3 - Jayakumar was engagedto give a pipe connection from the overhead water tank to the watercooler fixed in the first floor of the bank building. Theappellant/opposite party has also admitted that therespondent/claimant was a person engaged by A.W.3 - Jayakumar toassist him in accomplishing the work assigned by the bank to him,namely providing pipe connection to the first floor from theoverhead tank of the bank building. It is also not in dispute thatwhile trying to make a hole on the roof, the respondent/claimanthad an electric shock pursuant to which he was treated in thehospital. Only for the said injury and its consequences, therespondent/applicant has claimed compensation. The entrustment ofthe plumbing work by the bank to A.W.3 - Jayakumar has beenadmitted. If the said work was in relation to the trade orbusiness of the appellant/opposite party, then the appellant bankshall be liable as a principal employer, while A.W.3 shall be theimmediate employer. If the said work entrusted to A.W.3 does nothave any connection with the trade or business of the appellantbank, then the appellant shall not even be a principal employerliable to pay compensation. 13. In this regard, the learned counsel for theappellant/opposite party would contend that in view of the standtaken by the appellant that the respondent/claimant was a personengaged by the independent contractor (A.W.3), before ever mulctingthe liability on the appellant, the Commissioner should have https://hcservices.ecourts.gov.in/hcservices/ impleaded the said Jayakumar as a party to the proceeding. It isthe further contention of the learned counsel for the appellantthat the work entrusted to A.W.3 - Jayakumar was not one inconnection with the trade or business of the appellant and hencethe application for compensation made against the appellant shouldhave been straight away dismissed and that in the alternative, thecontractor, namely Jayakumar should have been impleaded by theCommissioner as an opposite party in the application forcompensation under the Workmen's Compensation Act. 14. In support of the first contention that the work entrustedto Jayakumar was not connected with the trade or business of theappellant, the learned counsel relied on the judgment of a divisionbench of this court made in The Dean, Agricultural College andResearch Institute, Kilikulam, Vallanad v. Tmt.S.Sakilabanu andothers reported in (2003)3 M.L.J. 712. In the said case,construction of a hostel building for the Agricultural College hadbeen entrusted to the P.W.D engineer, who in turn entrusted to workto an independent contractor. The independent contractor entrustedthe same to a sub-contractor. A person employed by the sub-contractor died in the course of the construction work and hence aclaim was made for compensation against the Dean of theAgricultural College and others. The division bench held that theAgricultural College was engaged in imparting education; thatconstruction of the building was not the business or trade of theinstitution; that the construction work having been entrusted tothe P.W.D contractor, he alone was the principal employer and sub-contractor under whom the deceased was working was the immediateemployer. 15. Per contra, a division bench of Madhya Pradesh High courtin a case between Assistant General Manager, State Bank of Indiaand Asha Chouhan reported in 2004-II-LLJ 708 in which the factssimilar to the case on hand were involved has held that maintenanceof electricity was connected with the trade or business of the bankand since the accident occurred in the bank premises and thedeceased therein having been engaged for the said work was aworkman under the bank as per Section 2(1)(n) of the Workmen'sCompensation Act. It was held therein, to exclude the person fromthe ambit of the term 'workman', two things needed to be proved -1) that the employment was of casual nature and 2) that the personwas employed otherwise than for the purpose of the employer's tradeor business. If the said judgment of the Madhya Pradesh High Courtis to be applied to the facts of the case on hand, one can have nodoubt that the appellant bank shall be the principal employer andA.W.3 - Jayakumar shall be the immediate employer. 16. However in case of engagement of a worker through animmediate employer, the question cannot be conveniently decidedwithout both the alleged principal and immediate employers beingmade parties to the proceedings. In this connection a divisionbench of this court in Madhanagopal alias Madhan v. Rasika Ranjani https://hcservices.ecourts.gov.in/hcservices/ Sabha represented by its Secretary, Chennai and another reported in(2004) 1 M.L.J.277, confirmed the order of a learned single judgeof this court, wherein the following observations had been made:-" No doubt, the principal employer is liable topay the compensation awarded; but he is entitled to beindemnified by the immediate employer. For thatpurpose, the presence of the immediate employer beforethe Court is very much essential. Any order passed inhis absence may not bind him and in the saidcircumstances, I feel that M/s.Selvam Brothers, who isthe immediate employer is a necessary and proper partyto the proceedings and the respondents 1 and 2 havetaken proceedings in his absence. I feel, to meet theends of justice, the respondents 1 and 2 must be givenan opportunity to implead the immediate employer as aparty to the proceedings, for which, the matter has gotto be remanded back to the Commissioner, Workmen'sCompensation for proper adjudication."The following observations had been made in the said case bythe division bench:" absolutely there is no dispute that thisappellant had entrusted the work of painting andrenovation work to one M/s.Selvam Brothers. It is alsonot in dispute that the injured workman was engaged forpainting the premises of Sabha by M/s.Selvam Brothers.So, the second respondent - Sabha is the principalemployer and M/s.Selvam Brother is the immediateemployer. A person who employs others or entrust hiswork to others for execution in respect of his affairsor business could very well be proceeded in terms ofSec.12. Sec.12 obviously include that the liabilityfor compensation is ultimately of contractor oremployer who engaged the workman. So far as theworkman is concerned, he is entitled to recover thesame from the principal employer. The principalemployer has in turn a statutory right to indemnifyhimself by recovering the same from the immediateemployer."17. The learned counsel for the appellant relying on the saidjudgment contended that the learned Commissioner for Workmen'sCompensation should have impleaded A.W.3 - Jayakumar as theimmediate employer and then decided the case; that the failure onthe part of the Commissioner for Workmen's Compensation to do sowould make his order liable to be set aside and that the propercourse to be adopted in such circumstances was to remit the caseback to the Commissioner for Workmen's Compensation to decide thematter afresh after giving an opportunity to therespondent/applicant to implead the alleged immediate employer as a https://hcservices.ecourts.gov.in/hcservices/ party to the proceedings and then decide the matter on merit. Thiscourt is in complete agreement with the said contention raised bythe learned counsel for the appellant.18. In view of the foregoing discussions, this court is of theconsidered view that the order of the learned Commissioner forWorkmen's Compensation directing the appellant/opposite party topay a sum of Rs.1,24,788/- as compensation to therespondent/applicant deserves to be set aside and after settingaside the same, the matter shall be remitted back to the learnedCommissioner for Workmen's Compensation for fresh disposal aftergiving an opportunity to the respondent/applicant to implead A.W.3-Jayakumar as a party to the proceeding.19. In the result, the appeal is allowed in part and the orderof the learned Commissioner for Workmen's Compensation dated06.06.2001 directing the appellant/opposite party to pay a sum ofRs.1,24,788/- as compensation to the respondent/applicant is setaside. The matter is remitted back to the learned Commissioner forWorkmen's Compensation for fresh disposal after giving anopportunity to the respondent/applicant to implead A.W.3-Jayakumaras a party to the proceeding.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.asrToThe Commissioner for Workmen's Compensation(Deputy Commissioner of Labour-I)ChennaiCopy toThe Section OfficerVR Section,High Court, Madras1 cc to M/s. Srinath Sridevan, Advocate, SR. 63824C.M.A.No.1549/2001NM (CO)kk 20/1