Gujarat High Court
Divisional Controller, G.S.R.T.C. vs Ashok Kumar Keshavlal Parekh And Ors. on 3 August, 1998
Equivalent citations: 2000ACJ221, (1999)1GLR83, (1999)IILLJ259GUJ
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. The Divisional Controller, Gujarat State Road Transport Corporation, Mahesana Division, Mahesana, by this appeal under the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act, 1923') challenges the award of the Commissioner under Workmen's Compensation Act at Kalol made in Workmen's Compensation Application No. 92 of 1993 on June 1, 1996.
2. This award has been challenged by the learned Counsel for the appellant before this Court on the ground that the claimant-respondent since deceased was only an Apprentice appointed under the provisions of Apprentices Act, 1961 and there exists no relationship of employer and employee between the Corporation and the claimant, the Commissioner under the Workmen's Compensation Act has exceeded its jurisdiction in passing the award in his favour. The second contention is that the Commissioner under the Workmen's Compensation Act has committed serious error or illegality in determining the amount of compensation payable to the claimant by taking his monthly wages to be of Rs. 924-30. This calculation could have been made only on the basis of taking the amount of Rs. 380/- p.m. as his wages which the appellant was paying as stipend to the claimant. Lastly, it is contended that the accident has resulted because of negligence of the claimant himself and he was not entitled to any compensation under the provisions of Workmen's Compensation Act, 1923. Carrying this contention further, the learned Counsel for the appellant contended that the claimant-apprentice has to perform the duty under the supervision of mechanic and as per his instructions he has to act. He was not required to do any work independently but still on August 1, 1992 on his own, independently and negligently performing his duties he met with this accident as a result of which (sic.) caused injuries to him and he is not entitled for any compensation.
3. Learned Counsel for the respondents, Ms. Vishin raised firstly a legal question that under Section 30 of the Act, 1923 an appeal against the award of Commissioner under Workmen's Compensation Act, awarding compensation to the claimant does lie to this Court only where a substantial question of law does arise therein. Whatever contentions raised by the learned Counsel for the appellant are at the most can be taken to be only questions of law or fact and not the substantial questions of law. In this appeal as not a single substantial question of law arises, the same deserves to be dismissed. She has raised a preliminary objection to the maintainability of the appeal itself. The contention is that to this appeal, though appellant has accompanied a certificate issued by the Commissioner under the Act, 1923, Kalol certifying therein that the amount of compensation awarded under the impugned award has been deposited with it by the appellant, that certificate is of no value or worth as it appears to have been issued by the Commissioner for Workmen's Compensation, Kalol only for audit purpose.
4. On merits, Ms. Vishin, the learned Counsel for the respondents contended that the Commissioner under the Workmen's Compensation Act has not committed any error, much less, an illegality in passing of the award in favour of the claimant since deceased. Even if the claimant is taken to be appointed only as an apprentice under the provisions of Apprentices Act, 1961 still he was entitled for compensation for the injury caused to him as a result of the accident arising out of and in the course of his employment with the appellant. The assessment and determination of amount of compensation to be paid to the claimant for injury sustained by him as a result of accident arising out of and in the course of his employment has to be made not on the basis of the figure of the stipend he was getting but his salary or wages has to be notionally arrived at in accordance with the provisions of the Act, 1923 and the Act, 1961. Replying to the last contention of the learned Counsel for the appellant, Ms. Vishin, learned Counsel for the respondents contended that the respondents have not produced any evidence on the record of the claim application to show that the claimant has worked contrary to the instructions given to him by his Superior Officer or he has acted negligently discharging his duties. It is a pure question of fact on which finding has been recorded by the Commissioner for Workmen's Compensation Act, which does not give rise to any substantial question of law. Otherwise also what Ms. Vishin, learned Counsel for the respondents contended that the claimant even if found to be negligent in discharging his duties or as a result of his negligence he sustained the injuries in the accident arising out of and in the course of his employment still he was entitled for compensation and accordingly, the Commissioner for Workmen's Compensation has not committed any error in passing the award in his favour.
5. I have given my thoughtful consideration to the respective submissions made by the learned Counsels for the parties.
6. First of all, I consider it to be appropriate to deal with the preliminary objection raised by the, learned Counsel for the respondents, regarding maintainability of the appeal.
Proviso 3 to sub-section (1) of Section 30 of the Act, 1923 provides that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited amount of compensation with him payable under the order. This provision is mandatory and in case the memorandum of appeal is not accompanied by a certificate by the Commissioner to the effect that the appellant had deposited the amount of compensation awarded under the impugned order, the appeal does not lie. Only on this ground, she urges that the appeal deserves to be dismissed in limine.
7. In this case, the certificate is there accompanied to this appeal of the Commissioner for Workmen's Compensation, Kalol certifying that the appellant deposited Rs. 99,890-65 by a cheque No. 551618 dated September 12, 1996 drawn on State Bank of India, Mahesana. Only objection which has been raised by the learned Counsel for the respondents to that part of the certificate where the Commissioner has said "this certificate is issued only for the audit purpose". Proviso 3 to Section 30(1) of the Act, 1923 requires that to the memorandum of appeal a certificate of the Commissioner to the effect that the appellant has deposited with him the amount of compensation awarded under the order impugned in the appeal should be accompanied. The substance of the provision is that the amount payable under the order impugned in appeal has to be deposited by the In appellant with the Commissioner for Workmen's Compensation concerned and in proof of deposit thereof, a certificate issued by the said authority certifying the deposit has to be accompanied with the memorandum of appeal. Merely because in this appeal in the certificate accompanied with the appeal is mentioned that the certificate is issued only for audit purpose, it cannot be said or accepted that this certificate does not fulfil the necessary conditions as provided under proviso 3 to Section 30(1) of the Act, 1923. This sentence put in the certificate at the most may be taken to be superficial for the purpose of this appeal but this certificate fulfils all the necessary requirements of the certificate as contemplated by proviso 3 to Section 30(1) of the Act, 1923. The matter would have been different where the cheque by which the amount payable under the impugned award deposited with the Commissioner by the appellant would have bounced, which is not the case of the appellant. Otherwise also, if we go by the substance of the matter, it cannot be said that the requirement of law as provided in proviso 3 to Section (1) of the Act, 1923 has not been complied with in this appeal. The preliminary objection raised by the learned Counsel for the respondents regarding maintainability of the appeal, does not stand to any merits.
Re : Contention - Relationship of Employer and Employee.
8. It is an admitted case of the appellant that the claimant-respondent No. 1 was engaged as Apprentice Trainee (Motor Mechanic) in Kalol Depot of the Corporation w.e.f. April 8, 1992 for a period of one year. The contention is that as he was only an Apprentice Trainee (Motor Mechanic), he does not fall within the category of workman as defined under the Workmen's Compensation Act, 1923 or there exists no relationship of employer and employee in between the Corporation and the claimant.
The Apprentices Act, 1961 defines "apprentice", which means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship.
"Apprenticeship training" as defined under, the Act means a course of training in any industry or establishment undergone in pursuant of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices.
"Designated trade" as defined under the Act, 1961 means any trade or occupation or any subject field in engineering or technology or any vocational course, which the Central Government, after consultation with the Central Apprenticeship Council, may by notification in the Official Gazette, specify as a designated trade for the purposes of this Act.
"Employer" as per the meaning given to it under the aforesaid Act means any person who employs one or more other persons to do any work in an establishment for remuneration and includes any person entrusted with the supervision and control of employees in such establishment.
"Establishment" includes any place where any industry is carried on and "industry" means any industry or business in which any trade, occupation or subject field in engineering or technology or any vocational course may be specified as a designated trade.
The Act, 1961, also defines "trade apprentice" which means an apprentice who undergoes apprenticeship training in any such trade or occupation as may be prescribed.
9. Section 16 of the Act, 1961 lays down that if personal injury is caused to an apprentice by accident arising out of and in the course of his training as an apprentice, his employer shall be liable to pay compensation which shall be determined and paid, so far as may be, in accordance with the provisions of the Workmen's Compensation Act, 1923, subject to the modifications specified in the Schedule.
10. In the Schedule, the modifications in the Workmen's Compensation Act, 1923 in its application to the apprentice under the Apprentices Act, 1961 has been given out. The relevant modifications to the Act of Workmen's Compensation Act, 1923 in its application to the apprentices are as under :
"Employer" means an employer as defined in the Apprentices Act 1961 who has engaged one or more apprentices.
"Wages" means the stipend payable to an apprentice under Section 13(1) of the Apprentices Act, 1961.
"Workman" means any person who is engaged as apprentice as defined in the Apprentices Act, 1961 and who in the course of apprenticeship training is employed in any such capacity as is specified in the Schedule 11.
11. Section 13 of the Act, 1961 lays down that the employer shall pay to every apprentice during the period of apprenticeship training such stipend at a rate not less than the prescribed minimum rate, or the rate which was being paid by the employer on January 1, 1970 to the category of apprentices under which such apprentice falls, whichever is higher as may be specified in the contract of apprenticeship and the stipend so specified shall be paid at such intervals and subject to such conditions as may be prescribed. An apprentice shall not be paid by his employer on the basis of piece-work nor, shall he be required to take part in any output bonus or other incentive scheme.
12. Section 3 of the Act, 1923 provides for the employer's liability or compensation. If personal injury is caused to a workman by an accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of Chapter-11 of this Act.
13. From a conjoint reading of the provisions of the Act, 1923 and the Act, 1961, the apprentice who has been appointed under the Act, 1961 in an establishment in case suffers personal injury caused to him by an accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter-11 of the aforesaid Act. So the first contention raised by the learned Counsel for the appellant is not tenable.
Re : Whether the compensation should have been awarded to the claimant by taking the stipend which he was drawing or the wages as taken by the Commissioner of Workmen's Compensation.
14. This contention raised by the learned Counsel for the appellant is also devoid of any substance. Section 13 of the Act, 1961 as is reproduced in extenso in earlier part of the judgment leaves no doubt that the apprentice should have been paid by his employer during the period of apprenticeship training such stipend at a rate not less than the prescribed minimum rate as may be specified in the contract of apprenticeship. In this case, it appears that the employer-appellant herein paid the workman, the stipend at a rate less than the prescribed minimum rate of wages and this argument raised by the learned Counsel for the appellant is nothing but only an attempt to take the benefits of its own wrong. The workman and his dependents sought to be put to suffer double loss. During the period of apprenticeship training till the day he sustained the injury arising out of and in the course of his employment, the workman has been paid less wages as stipend and after accident on the basis of that stipend, the appellant has made an attempt to pay less amount of compensation. Any act done by an employer which is stated within the meaning of Art. 12 of the Constitution of India contrary to statutory provision leaving apart the fact, that it may result in appropriate prosecution of employer, it cannot be permitted to take benefit of the same to its own advantage. If such a contention is accepted then the very purpose and object of these two benevolent provisions can very conveniently be defeated to the disadvantage of the beneficiaries and to the advantage of the employers. The learned Commissioner for Workmen's Compensation has not committed any error in determining the compensation to be paid to the claimants taking the salary by way of stipend of the workman to be the minimum wages as prescribed on the relevant date, of the designated trade. The second contention raised by the learned Counsel for the appellant is devoid of any substance.
Re : The accident has resulted because of negligence of workman himself and as such, the claimants are not entitled for any compensation under the Act, 1923.
15. Section, 3 of the Act 1923, and in particular, Proviso (b) to sub-section (1) thereof provides that, the employer shall not be liable in respect of any injury, not resulting in death, or permanent total disablement caused by an accident which is directly attributable to - (1) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or (iii) the wilful removal or disregard by the workman of any safeguard or other device which he knew to have been provided for the purpose of securing the safety of workmen.
16. Learned Commissioner for Workmen's Compensation in his award held that on this issue the appellant herein, the opponent therein, has not examined any witness to prove that the workman had met with an accident due to his own negligence. Not only this, Shri Jadav, the main witness and Supervisor of the workman to instruct him for the work, has not been examined. In the absence of these two material witnesses' evidence, the Commissioner has recorded a finding of fact that the opponent therein, the appellant herein, has failed to prove that the workman has met with an accident because of his own negligence. It was a specific defence taken by the opponent therein and appellant herein and burden lies on them to establish the exception pleaded which utterly the appellant failed to discharge. Moreover, merely on the negligence in discharge of duties resulted in personal injury to the workman by accident arising out of and in the course of his employment, the employer cannot put it to be defence to get it exonerated from its liability to pay the compensation in accordance with the Act, 1923 to the workman or his dependents. Sub-section (1) of Section 3 of the Act, 1923 nowhere lays down that in a case where the personal injury is caused to a workman by an accident arising out and in the course of his employment as a result of his own negligence, he will not be entitled for compensation from his employer. If this contention is accepted then what this Court has to do to read something in sub-sec (1) of Section 3 of the Act, 1923, which otherwise the legislature did not intend. Only case of the appellant before the Commissioner for Workmen's Compensation and in this appeal is that the accident in which personal injury is sustained by workman in an accident arising out of and in the course of his employment as a result of his own negligence and the Commissioner for Workmen's Compensation in the present case rightly relying on the decision cited before it held that even if that position is accepted, the workman and his dependents are entitled to get compensation from the employer under the provisions of the Act, 1923. As per proviso to sub-sec (1) of S. 3 of the Act, 1923, the employer's liability to pay the compensation to the workman in respect of any injury not resulting in death, or permanent total disablement caused by an accident which is directly attributable to the workman having been at the time thereof under the influence of drink or drugs, which is not the case here or the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, which is also not the case here, or the wilful removal or disregard by the workman of any safeguard or other device which he knew to have been provided for the purpose of securing the safety of workmen, and this is also not the case here, the present case does not fall within the exceptional clause provided under proviso to sub-section (1) of Section 3 of the Act, 1923 and the appellant merely on the negligence of the workman in discharging of duties cannot be exonerated of his liability of compensation to be paid under the Act, 1923 for the injury caused to a workman in an accident arising out of and in the course of his employment, resulted in his death or permanent total disablement. Otherwise also, the provisions of relieving the employer from his liability to pay the compensation under the Act, 1923 provided under proviso (b) to sub-sec (1) of Section 3 of the Act, 1923 will not be attracted. From the judgment of the Commissioner of Workmen's Compensation. I find that it is a case where as a result of the accident the injury sustained by the workman resulted in his permanent total disablement. This finding of the Commissioner for Workmen's Compensation has not been challenged by the appellant in this appeal. Whatever exception is provided for relieving of the employer from his liability to pay the compensation to his workman for personal injury caused to him by an accident arising out of and in the course of his employment otherwise also cannot be made available to the appellant.
17. The net result of the aforesaid discussion is that this appeal has no force and the same is dismissed. The appellants are directed to pay the costs of this appeal to the respondents-claimants, which is quantified at Rs. 1,000/-.