The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Feb-2024 17:11:27 IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.483 of 2016 & 493 of 2016 (From the order dated 18th June, 2016 passed by the learned Commissioner for Employee’s Compensation-cum-Deputy Labour Commissioner, Cuttack in W.C. Case No. 258-D of 2010 and 512-D of) FAO No. 483 of 2016 ATC Telecom Infrastructure Pvt.Ltd. …. Appellant Commissioner for Empployee’s Compensation-cum-Deputy Labour Commissioner & Ors. …. Respondents -versus- FAO No. 493 of 2016 ATC Telecom Infrastructure Pvt.Ltd. …. Appellant Commissioner for Empployee’s Compensation-cum-Deputy Labour Commissioner & Ors. Advocate(s) appeared in this case:- -versus- …. Respondents For Appellant
Legal Reasoning
This Court in Managing Director, Odisha State Ware Housing Corporation vrs. Smt. Geetarani Scel and Anr., 1991 (2) TAC 482 have held that any person who engages a contractor in course of or for the purpose of his trade or business contracts with any other person for FAO No.483 of 2016 & 493 of 2016 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Feb-2024 17:11:27 execution by or under the contractor of the whole or any part of such work, incurs the liability in respect of the workman vis-à-vis the contractor, and the liability in such event passes on to the principal employer. 9. As seen from above, first part of Section 12(1) speaks of a contract entered into in course of or for the purposes of trade or business, and the second part relates to the work, execution of which the contract relates, must be one which ordinarily part of the trade or business of the principal. In the case at hand it is the admitted submission of the Appellant that in course of his ordinary trade or business the contractor was engaged for fitting of the supplies regarding electrification. Therefore, no merit is seen in the contention of the Appellant to disown the liability of the workman as the principal. 10. However, one more thing is noticed that the Respondent No.3- contractor had a valid insurance policy for the period 26th September 2009 to 25th September 2010, and the date of accident is on 24th October 2009. The insurance policy was valid in respect of two skilled employees, four semi-skilled employees and fourteen un-skilled employees engaged by Respondent No.3 for the trade of electrical contractors and work of construction & maintenance of all types of overhead, internal and underground works. The deceased workman as well as the injured workman, both are undisputedly semi-skilled employees and therefore, their accident at the workplace are found covered within the risk coverage. The learned Commissioner has observed under Issue No.4 that the Appellant is liable to pay the compensation and to reimburse the same from the contractor and the FAO No.483 of 2016 & 493 of 2016 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Feb-2024 17:11:27 contractor by virtue of the insurance policy can reimburse from the Insurer-Respondent No.4. Therefore, keeping in view the admitted existence of insurance policy covering the accident, the Insurance Company i.e. National Insurance Co.Ltd. can be directed to pay the compensation amount instead of granting liberty to the Appellant to reimburse the same from the Insurer. It is accordingly directed. 11. Since the entire compensation amounts have been deposited before the learned Commissioner, in order to avoid complication, the same is directed to be paid to the respective claimants in both the cases within a period of three months from today including interest. Further, the Insurer-Respondent No.4 is directed to deposit such compensation amount in terms of the direction of the Commissioner contained in the impugned award within a period of four months from today, which shall be refunded to the Appellant without delay.
Arguments
: Mr. S.S.Das, Senior Advocate (in both the appeals) For Respondents : Mr. B.N.Udgata, Advocate for Respondent No.4 Mr.B.Mohanty, Advocate for Respondent No.2 (in both the appeals) CORAM: JUSTICE B.P. ROUTRAY FAO No.105 of 2023 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Feb-2024 17:11:27 JUDGMENT 18th December, 2023 B.P. Routray, J. 1. Both the appeals are arising out of same common judgment passed by the Commissioner for Employee’s Compensation in W.C. Case No. 258-D of 2010 and 512-D of 2011, wherein compensation to the tune of Rs.3,77,423/- and Rs.3,32,237/- has been granted respectively along with interest @ 12% per annum for death of the workman Hari@ Harish Chandra Mallick and injury to Santosh Kumar Nayak in course of and arising out of their employment as electrician/mechanic. 2. The case of the claimants are that, the deceased as well as the injured were employed as electrician/mechanic by the contractor M/s. Akhandalmani Electrical and Construction for executing the work of the Appellant M/s. ATC Telecom Infrastructure Ltd.(earlier known as Viom Network Ltd. and prior to that Quippo Telecom Infrastructure Ltd.). The Appellant through the contractor was engaged in erection and construction of mobile towers. On 24th October, 2009 at around 1.20 P.M. being engaged by the Appellant the deceased and injured were working on the mobile tower to draw electric wires and in course of discharging their duties they received electric shock and sustained burn injury. Deceased Harish Nayak fell down from the tower in burning condition on the ground and died instantly. The injured Santosh Nayak fell down sustaining burn injury from the mobile tower on the ground. The injured was treated in different hospitals and recovered ultimately suffering with physical disability. FAO No.483 of 2016 & 493 of 2016 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Feb-2024 17:11:27 3. The discharge of duty of the deceased as well as the injured on the mobile tower at the time of accident is never disputed. The income, age factor and quantum of compensation, as determined by the Commissioner, in respect of both of them, are also never questioned. The only dispute raised in the appeals is with regard to the status of employer, whether it would be the Appellant or the contractor. 4. It is submitted on behalf of the Appellant that the workmen being engaged by the contractor who is responsible for construction of the mobile tower, the Appellant is not liable to pay the compensation amount. It is the contractor-Respondent No.3 liable to pay the compensation amount. 5. It is contention of the Appellant that it operates the telecom towers in course of his ordinary trade which is further used by the telecom service providers. The Appellant procures goods like electrical fittings in the telecom tower during installation stage and get the same fitted by Respondent No.3, the contractor. The workmen were engaged by the contractor to discharge their part of contract and therefore the principal and employee relation does not exist between the Appellant and the workmen. 6. Admittedly, no copy of contract between the Appellant and Respondent No.3 has been bought on record. The Appellant despite all such contentions raised before this Court did not produce even a copy of the contract. Had it been produced it would have been clear from it the nature of contract and the extent of relationship between the Appellant and Respondent No.3. Respondent No.3 was working for the Appellant and the work, in course of which accident took place, was undertaken on behalf of the Appellant as per the materials brought on FAO No.483 of 2016 & 493 of 2016 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Feb-2024 17:11:27 record. Therefore, the contention of the Appellant to deny the relationship of principal and employee are seen empty founded. 7. In this regard Section 12 of the Employee’s Compensation Act the same reads as follows:- 12. Contracting-(1) Where any person(hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any [employee] employed in the execution of the work any compensation which he would have been liable to pay if that [employee] had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the [employee] under employer by whom he is immediately employed. (2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, [or any other person from whom the [employee] could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the [employee] could have recovered compensation] and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner. (3) Nothing in this section shall be construed as preventing a [employee] from recovering compensation from the contractor instead of the principal. (4) This section shall not apply in any case where the accident occurred elsewhere that on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management. 8.
Decision
12. Both the appeals are accordingly disposed of. (B.P. Routray) Judge S.Das, Sr.Steno FAO No.483 of 2016 & 493 of 2016 Page 6 of 6