Madras High Court
Madhanagopal @ Madhan vs Rasika Ranjani Sabha And Anr. on 9 December, 2003
Equivalent citations: I(2005)ACC640
JUDGMENT S.K. Krishnan, J.
1. The fourth respondent who is the legal representative of the deceased first respondent has preferred this appeal against the judgment dated 30th November, 1998 made in C.M.A. No. 1055 of 1987 remanding the matter back to the Deputy Commissioner of Labour-I, Workmen's Compensation, Madras-6 for fresh disposal after impleading the immediate employer, namely, M/s. Selvam and Brothers as parties to the proceedings.
2. Respondents 1 and 2 who are mother and father of the workman, K. Madhan, working under the respondents 1 and 2, have filed an application claiming compensation of Rs. 52,950/- towards the head injury sustained by their son during the course of his work, due to which he became mentally handicapped.
3. The first respondent-Rasika Ranjani Sabha in their counter denying the allegations of the applicants, has stated that the claim is belated and he was not actually employed on 1st October, 1984. It is further stated that it is not a necessary party; that there is no privity of contract between it and Madhan; that he does not know whether Madhan was employed by the third respondent or not; that the alleged accident is false and hence, prayed for the dismissal of the application.
4. After hearing both sides and on perusal of materials available on record, learned Deputy Commissioner of Labour has allowed the application holding that Madhan was an employee under the opposite parties and the accident occurred during the course of his employment under them, directed the opposite parties to pay a sum of Rs. 30,000/- within 30 days from the date of receipt of the order to the applicants as compensation. Aggrieved by the said order, the second opposite party, Rasika Ranjani Sabha has preferred an appeal in C.M.A. No. 1055 of 1987. After considering the rival submissions of both parties, this Court remanded the matter to the Deputy Commissioner of Labour-I for fresh disposal stating that though the appellant is the principal employer, the immediate employer, namely, M/s. Selvam Brothers was not impleaded as a party to the proceedings and hence, respondents 1 and 2 were directed to file an application to implead the immediate employer. Aggrieved over the same, fourth respondent, the legal representative of the deceased first respondent has filed this appeal.
5. The only point that arises for consideration in this appeal is that whether the order passed by the learned Judge of this Court remanding the matter to the Deputy Commissioner of Labour-I for fresh disposal after impleading the immediate employer, is liable to be set aside or not?
6. The appellant herein is the workman who sustained injuries in the accident occurred on 1st October, 1984 while he was attending the work of painting in the premises belonging to the Sabha, the second respondent herein. It is stated that while he was attending the said work allotted to him under the supervision and control of the first and second respondents, he fell down from a height of 12 ft. and sustained injuries in the head. In such circumstances, initially, the parents of the appellant herein filed a petition for compensation under Section 10(1) of the Workmen's Compensation Act. It is to be seen that after appearance, the second respondent filed a counter stating that there was no contract of service between the second respondent and the alleged workman, Madhan. Further it is contended that for the purpose of painting and white-washing their premises among other renovation work, they engaged a contractor namely, M/s. Selvam Brothers having their office at No. 10-B, Ananthakrishnan Colony, Eldams Road, Madras who in turn might have engaged the first respondent, Tharanimalai, a sub-contractor for the purpose of attending the work allotted to him by the second respondent. It is stated that there was absolutely no contract of service between this respondent and the said Madhan. It is also denied that the said Madhan was working as a painter as directed by the second respondent and under their supervision.
7. However, the Deputy Commissipner of Labour-I (Commissioner for Workmen's Compensation) passed an order in favour of the appellant/ workman directing the opposite parties to pay a sum of Rs. 30,000/- as compensation to the workman. As against the said award, the second respondent-Sabha has preferred CM. A. No. 1055 of 1987 before this Court. Learned Judge of this Court passed the following order:
In the result, the matter is remanded back to the Deputy Commissioner of Labour-I, Workmen's Compensation, Madras-6. The respondents 1 and 2 are directed to file an application to implead the immediate employer, namely, M/s. Selvam and Brothers as a party to the proceedings and proceed with the case and Commissioner for Workmen's Compensation shall dispose of the matter afresh. The Commissioner, Workmen's Compensation is further directed to dispose of the matter within three months from the date of receipt of this order. No costs.
8. A specific plea was raised by the learned Counsel for the second respondent before the Deputy Commissioner that they have engaged one, contractor, namely, M/s. Selvam Brothers and in their absence, they used to supervise the work and the said contractor should be impleaded as necessary party to the proceedings. Since it is made out that the appellant is a principal employer and M/s. Selvam Brothers is the immediate employer, this Court directed to file an application to implead the immediate employer. In this connection, the learned Judge has observed as follows:
The respondents 1 and 2's son, Madhan sustained injuries during the course of employment and the same is also not in dispute. But, however, the immediate employer was not a party to the proceedings. No doubt, the principal employer is liable to pay the compensation awarded; but he is entitled to be indemnified by the immediate employer. For that purpose, the presence of the immediate employer before the Court is very much essential. Any order passed in his absence may not bind him and in the said circumstances, I feel that M/s. Selvam Brothers, who is the immediate employer is a necessary and proper party to the proceedings and the respondents 1 and 2 have taken proceedings in his absence. I feel, to meet the ends of justice, the respondents 1 and 2 must be given an opportunity to implead the immediate employer as a party to the proceedings, for which, the matter has got to be remanded back to the Commissioner, Workmen's Compensation for proper adjudication.
Aggrieved over the same, the workman has preferred the present appeal before this Court.
9. Learned Counsel appearing for the appellant would contend that the accident was occurred during the year 1984 and if the matter is remanded back, it would cause further delay. It is stated that the misjoinder of M/s. Selvam Brothers is not fatal to the proceedings and respondents 1 and 2 are vicariously liable to pay the compensation. Learned Counsel also emphasised for the disposal of this appeal in favour of the appellant herein and during (the course of argument, the learned Counsel cited the following decisions for consideration while deciding the matter. While considering the decisions, it is pertinent to discuss certain points relating to the facts as well as the legal position of the case on hand:
(i) Malankara Rubber and Produce Co. Limited, Kottayam v. Hameed and Ors. (2000) 2 L.L.J. 630 (Ker.), where the appellant Company has stated that it was not the principal employer and is not liable to pay compensation and the same was negatived by the Court. In the present case, such contention has not been raised by the principal employer.
(ii) Secretary, Trivandrum Port and Headload Workers Cooperative Society Limited v. V. Dhaneshkumar @ Thampi and Anr. I (2001) ACC 422 (DB) : (2000) 1 L.L.J. 1629 (Ker.), wherein it has been held that even if there is no employer-employee relationship with the principal employer, a substitute will be a 'workman' if he is engaged for the service of the principal employer. Further it was held that if the accident occurs while the person is engaged for the service of the principal employer, or when he is occupied in the performance of the work or duties of the principal employer or when he is retained for the; service of the principal employer, it has to be held that the accident occurred during the course of the employment and the principal employer is liable to compensate the workman. In the case in hand, though it was alleged that there is no service of contract between the principal employer Sabha and the workman, he was engaged by the immediate employer for the service of the principal employer and hence, principal employer is not liable to compensate the workman for the injuries sustained by him.
(iii) The Assistant Director of Horticulture Division, Anna Pannai and Anr. v. Andi and Anr. (1997) 2 L.L.J. 568. In this case, the question elaborately dealt and decided was that whether a Government organ as the principal employer could be considered that digging of a well was its trade or business, the execution of which was entrusted to a contractor. Here, the principal employer is a private party and not a Government organ.
(iv) Managing Director, Orissa State Warehousing Corporation v. Smt. Gitarani Seal and Anr. II (1992) ACC 263 : (1992) 1 L.L.J. 619 (Ori.), wherein it was held that any person, who engages a contractor in the course or for the purpose of his trade or business, contracts with any other person for the execution by or under the contractor of the whole or any part of such work, incurs the liability in respect of the workman vis-a-vis, the contractor. The liability in such an event passes on to the principal employer. But the principal employer is entitled to be indemnified by the contractor.
(v) J.D.P. Associate, Chennai v. Tmt. K. Malarkodi and Anr. . It is a case where the question of dependency was raised and dealt with. It was held that while Court 12 of the Workmen's Compensation Act indicates that the liability for compensation is ultimately that of the contractor, as far as the workman is concerned, he can recover the compensation from the principal employer. But the principal employer in turn has the statutory right to be indemnified by the contractor. Therefore, the claim of the respondents cannot be turned down because they did not implead the contractor. If there is a contractor under whom the workman was employed it is for the principal employer to name him and also claim the right to be indemnified.
10. In all these decisions, the liability of the principal employer has been elaborately discussed. It is observed in all the decisions that if the accident occurred while a person is engaged for the service of the principal employer or when he has occupied in any performance of the work or duties of the principal employer or when he is retained for the service of the principal employer, it has to be held that the accident occurred during the course of employment and the principal employer is liable to compensate the workman. Emphasising the legal position, learned Counsel appearing for the appellant would contend that the said accident was occurred on 1st October, 1984, the injured appellant/4th respondent is not able to enjoy the fruits of the said order passed by the learned Judge dated 30th November, 1998. In such circumstances, if this Court is going to confirm the said order passed by the learned Judge, the appellant would face a serious consequence and moreover, he has to wait for some more time to get the benefit. In such circumstances, learned Counsel would point out that the necessary order has to be passed by this Court in order to receive the said compensation from the concerned authority. However, with regard to the liability of the Sabha, it is pointed out that the injured was; attending the allotted work under the control and supervision of the said Sabha and hence, Sabha is liable to pay compensation to the workman. Further it is pointed out that on that particular date, the workman has attended the work as per the instructions given by the first respondent Sabha. In such circumstances, both the Sabha and the immediate employer-contractor are liable to pay the said compensation for the reason that both are jointly and severally liable to pay the compensation to the workman. It is to be seen that even though Sabha in its counter has stated that he engaged one contractor M/s. Selvam Brothers to carry out the specific work and the said contractor is a necessary party to be impleaded in this case, the claimants before the Workmen's Compensation has not taken any steps to implead the immediate employer, namely, M/s. Selvam Brothers as a party to the proceedings. It is also to be seen that in this connection, learned Counsel would, also point out that as far as the workman is concerned, he has not stated abbut the engagement of contractor M/s. Selvam Brothers by the Sabha. In such circumstances, the learned Counsel would emphasise that considering all the reasons stated above, the necessary order has to be passed by this Court in order to get the compensation from the principal employer.
11. Per contra, learned Counsel for the respondents would vehemently contend that the claimants are not entitled to receive the compensation from the Sabha since the injured workman was not at all employed by the second respondent Sabha at any point of time and the second respondent was not aware of the allegations that the said injured was engaged for painting work and during the course of his employment, he fell down and sustained injury and as a result of which, he had become incapacitated. It is denied that he never served as a workman under the second respondent. It is further stated that the relationship of employer and employee does not exist between the principal employer and the employee. In such circumstances, learned Counsel would point out that without considering these facts, the Commissioner of Workmen's Compensation awarded compensation in favour of the injured, and the same is not sustainable under law. In support of his contention, learned Counsel appearing for the respondent cited the following decisions for consideration of this Court.
(i) Easow Easow v. Rajan, Kallippara Thekkeveettil and Anr. 1998 Lab. I.C. 2426. In this case, against the award of the Commissioner, Workmen's Compensation directing the appellant and second respondent to pay Rs. 20,000/- compensation, the appellant has filed the appeal contending that there was no relationship between the claimant and this respondent. In that case the employer-employee relationship was not established by either of the respondents. In that circumstance, the Division Bench of Kerala High Court while allowing the appeal, has observed as follows:
The term employer is defined in Court 2(1)(c) of the Workmen's Compensation Act, 1923. There is nothing to indicate that the owner of a land is liable as an employer, for any accident that may take place to workman under a contractor, who is allowed to extract rocks on the above said basis. Thus it is not possible to uphold the finding of the Commissioner that the claimant was an employee under the appellant and find him liable to compensate for the injury.
(ii) Shantabai v. Shadeo and Ors. II (1984) ACC 513 : 1985 A.C.J. 845.
It is a case where a household lady gave labour contract to a contractor for the construction of her house. While the workman who attended to the work allotted to him by the contractor sustained injuries and he filed a claim petition in which it was contended that both contractor as well as the landlord, both are vicariously liable to pay the compensation. With regard to relationship of employer and employee, the landlady had contended that the injured was not employed by her and she had been unnecessarily impleaded as a party to the proceedings. However, the Trial Court after completion of inquiry, ordered that both contractor and the house owner are jointly and severally liable to pay compensation of Rs. 25,530/-. On appeal, while deciding the case, learned Judge of Bombay High Court, Nagpur Bench has elaborately discussed about Section 12(1) of the Workmen's Compensation Act and held that the owner of the house is not vicariously liable. It was decided that the relevant section would not be applicable to the private citizen who is a householder and who constructs a private house once in life-time and the appeal filed by the landlord was allowed and the order of the Commissioner was set aside. Emphasising the above said facts and legal position observed in that case, learned Counsel for the respondents would contend that without considering the legal position, awarding of the compensation in favour of the claimants by the Deputy Commissioner of Labour, is not sustainable under law. Learned Counsel for the second respondent-Sabha has further contended that the painting work attended by the injured workman on that particular day is not a part of the trade or business of the principal employer and hence, it is not liable to pay compensation.
(iii) The Garrison Engineer (Projects) Officer of the Commander Works Engineers v. Smt. Guttamma Hanmatdas 1978 Lab. I.C. 878. In this case, Section 12(1) of the Act has been discussed elaborately. But, the facts of this case are different and are not applicable to the facts of the case in hand.
(iv) New India Tannis Limited v. Aurora Singh Mojbi and Anr. (1957) 2 L.L.J. 262. The facts in this case proceeds on the prayer for indemnity made by the opposite party 1, against the contractor. In the present case, such contention has not been raised by the second respondent-Sabha.
12. With regard to the applicability of this Act, it is necessary for this Court to refer about the recent decision of the Hon'ble Supreme Court reported in Lakshnarayana Shetty v. Shantha and Anr. (2002) 3 L.L.J. 523, wherein a categorical finding has been observed by the Hon'ble Supreme Court with regard to the applicability of the Act. The learned Judge of the Supreme Court, with regard to the legal dictum, has observed as follows:
There was apparently a contract between the appellant and Ramu whereby Ramu had undertaken the work of painting the house. Whether the action of the appellant by engaging a person in this manner makes him employee or a workman of the appellant was as a question to be decided. The case did not fall within the four corners of the said Act and, therefore, the decision of the High Court was incorrect. We, therefore, allow the appeal and set aside the decision of the High Court.
13. In the case in hand, absolutely there is no dispute that this appellant had entrusted the work of painting and renovation work to one M/s. Selvam Brothers. It is also not in dispute that the injured workman was engaged for painting the premises of Sabha by M/s. Selvam Brothers. So, the second respondent-Sabha is the principal employer and M/s. Selvam Brothers is the immediate employer. A person who employs others or entrust his work to others for execution in respect of his affairs or business could very well be proceeded in terms of Section 12. Section 12 obviously include that the liability for compensation is ultimately of contractor or employer who engaged the workman. So far as the workman is concerned, he is entitled to recover the same from the principal employer. The principal employer has in turn a statutory right to indemnify himself by recovering the same from the immediate employer. In such circumstances, the learned Judge of this Court in his judgment dated 30th November, 1998 has observed as under:
No doubt, the principal employer is liable to pay the compensation awarded; but he is entitled to be indemnified by the immediate employer. For that purpose, the presence of the immediate employer before the Court is very much essential. Any order passed in his absence may not bind him and in the said circumstances, I feel that M/s. Selvam Brothers, who is the immediate employer is a necessary and proper party to the proceedings and the respondents 1 and 2 have taken proceedings in his absence. I feel, to meet the ends of justice, the respondents 1 and 2 must be given an opportunity to implead the immediate employer as a party to the proceedings, for which, the matter has got to be remanded back to the Commissioner, Workmen's Compensation for proper adjudication.
Though the said direction was given by this Court in the year 1998 to take necessary steps to implead M/s. Selvam Brothers, the workman has not taken any steps all these years to implead M/s. Selvam Brothers in this proceedings as already directed by the order of this Court dated 30th November, 1998. Instead of complying with the said direction, the injured has chosen to prefer this appeal before this Court against the said order. Hence, we are inclined to dismiss the appeal.
14. As already discussed above, while deciding the matter, the alleged immediate employer, namely, M/s. Selvam Brothers is a necessary party to the proceedings. Learned Judge of this Court has also stated that the presence of immediate employer before this Court is very much essential for deciding this case. In that circumstance, learned Judge directed the fourth respondent/workman to take necessary steps to implead the immediate employer M/s. Selvam Brothers to the proceedings and has further directed the Deputy Commissioner Labour-I to dispose of the matter within three months.
15. On a careful analysis of the facts and circumstances of this case and also considering the legal position referred to above in the various decisions cited by either side, we are inclined to confirm the order of the learned Judge of this Court. Further we direct the claimants to take necessary steps to implead the immediate employer, namely, M/s. Selvam Brothers as party to the proceedings before the Deputy Commissioner Labour-I, Madras. Learned Counsel for the appellant would submit that considering the circumstances of the case, in order to avoid further delay in this matter, necessary order may be passed. At this juncture, it is to be noted that even after passing of 19 years from the date of occurrence, the fourth respondent/workman is struggling to receive the said compensation awarded by the Deputy Commissioner for Labour. Considering the plight and struggling of the fourth respondent/workman, we direct the Deputy Commissioner of Labour-I to dispose of the matter within three months from the date of receipt of this order after impleading of the immediate employer, M/s. Selvam Brothers, in the light of the decision rendered by the Supreme Court referred to above, Lakshnarayana Shetty v Shantha (supra).
16. With the above direction, the appeal is dismissed. No costs. Consequently, connected C.M.P. is also dismissed.