Kerala High Court
The Secretary, Azhutha Block ... vs Joseph @ Appachan on 25 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 25TH DAY OF JULY 2024 / 3RD SRAVANA, 1946
MFA (ECC) NO. 75 OF 2017
AGAINST THE ORDER DATED 28.05.2015 IN ECC NO.30 OF 2014 (WCC
NO.33/2003 OF THE EMPLOYEES COMPENSATION COMMISSIONER
(INDUSTRIAL TRIBUNAL), IDUKKI, PEERMADE
APPELLANT/1ST RESPONDENT IN THE ECC:
THE SECRETARY, AZHUTHA BLOCK PANCHAYATH
AZHUTHA BLOCK PANCHAYATH, PEERMADE P.O, IDUKKI-685531.
BY ADVS.
SRI.ALEX.M.SCARIA
SMT.SARITHA THOMAS
RESPONDENTS/APPLICANT & 2ND RESPONDENT IN ECC:
1 JOSEPH @ APPACHAN
S/O VARKEY, PALATHINKAL, (CHOLAMAKKAL) HOUSE,
KANAYANKAYAL P.O, PERUVANTHANAM-685532, IDUKKI.
2 APPACHAN @ GEORGE JOSEPH
THEKKEVYALIL HOUSE, PURAKKAYAM P.O,
PERUVANTHANAM-685532, IDUKKI.
BY ADV K.JANARDHANA SHENOY
ADV SANTHOSH G. PRABHU
THIS MFA (ECC) HAVING COME UP FOR FINAL HEARING ON 03.07.2024,
THE COURT ON 25.07.2024 DELIVERED THE FOLLOWING:
2
M.F.A (ECC) No.75/2017
G.GIRISH, J.
---------------
M.F.A (ECC) No.75 of 2017
------------------------------
Dated this the 25th day of July, 2024
--------------------------------------------
JUDGMENT
The Secretary, Azhutha Block Panchayath, who is the first opposite party in E.C.C.No.30/2014 of the Court of Employee's Compensation Commissioner (Industrial Tribunal), Idukki, has filed this appeal under Section 30 of the Employees' Compensation Act, 1923 challenging the order of the said court awarding a compensation of Rs.2,00,347/- with interest and costs to the applicant therein.
2. The accident in which the applicant (1st respondent herein) suffered injuries leading to the amputation of his left hand occurred at about 9:30 a.m on 14.05.2001 when he was engaged in rock blasting work in connection with the construction of Purakkayam/Panniyarathupara road under the convenorship of the 2nd opposite party (2nd respondent herein), whereby a Beneficiary Committee under the first opposite party (appellant herein) was assigned with the task 3 M.F.A (ECC) No.75/2017 of the aforesaid work making use of the M.P fund for local area development. The applicant contended that the Secretary of Azhutha Block Panchayat who was arraigned as the 1st opposite party, and the Convenor of the Beneficiary Committee, who was arraigned as the 2nd opposite party in the proceedings before the Court of Employee's Compensation Commissioner, were his employers. Upon the above premises, he approached the trial court claiming compensation Rs.3,50,880/- for the injuries sustained during his alleged course of employment with the opposite parties. Though the opposite parties 1 and 2 strongly disputed the employer-employee relationship with the applicant, and contended that the applicant suffered the injuries while engaged in voluntary gratuitous service as a member of the Beneficiary Committee for the formation of the road, the trial court repelled the above contention and held that the 1st opposite party was the employer of the applicant, and that he is liable to compensate the applicant for the injuries sustained while engaged in the road work. Aggrieved by the aforesaid finding, and the award of compensation by the learned 4 M.F.A (ECC) No.75/2017 Employee's Compensation Commissioner, the 1st opposite party in the said proceedings is before this Court with this appeal.
3. Though the 1st respondent who was the applicant before the trial court, was served with notice of this appeal, he did not choose to appear before this Court or to contest the appeal.
4. Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent.
5. The substantial question of law involved in this appeal is whether the Secretary of the Block Panchayat and the Convenor of the Beneficiary Committee formed for the construction of a road making use of the funds allotted under Local Area Development Scheme of the Member of Parliament concerned, could be treated as employers of the workers engaged in such road work.
6. Before the learned Employee's Compensation Commissioner, the applicant and two witnesses were examined as AW1 to AW3 and three documents were marked 5 M.F.A (ECC) No.75/2017 as Exts.A1 to A3. From the part of the opposite parties, two witnesses were examined as RW1 and RW2 and six documents were marked as Exts.R1 to R6. One third party document was marked as Ext.X1.
7. Admittedly, the road work in which the applicant suffered injuries was a project undertaken under the Local Area Development Scheme of the Member of Parliament of that constituency. This aspect is revealed from Ext.R1(a) which is the administrative sanction accorded by the District Collector, Idukki to the Block Development Officer, Azhutha for the construction of Purakkayam-Panniyarathupara road at an estimated cost of Rs.4,00,000/- under the M.P's Local Area Development Scheme. It is further made clear in the aforesaid order that the implementing officer has to follow the guidelines issued by the Government of India for the implementation of M.P's Local Area Development Scheme, and that, contractors should not be engaged for the said work. Ext.R2 is the technical sanction issued by the Assistant Executive Engineer for the aforesaid work. The copy of the notice marked as Ext.R3 and the copy of the minutes dated 6 M.F.A (ECC) No.75/2017 04.03.2001 of the Beneficiary Committee, marked as Ext.R4, would reveal that the aforesaid road work was undertaken by the Beneficiary Committee so formed under the guidance of the Block Panchayat. The copy of the agreement dated 23.03.2001 which is marked as Ext.R5 would reveal that the Block Development Officer, who is none other than the Secretary of the Block Panchayat, and the Convenor of the Beneficiary Committee had entered into an agreement for the construction of the aforesaid road as per the terms and specifications of Ext.R6 contract. However, the terms and conditions incorporated in Ext.R6 are meant for such works undertaken by the Block Panchayat by way of contract, which is against the restriction in Ext.R1(a) wherein it is unequivocally stated that contractors should not be engaged for the work. It seems that Exts.R5 and R6 are executed for the mere sake of formality, and that the works undertaken under the Local Area Development Scheme of the Member of Parliament are governed by the guidelines issued by the Government of India in that regard.
7M.F.A (ECC) No.75/2017
8. The learned counsel for the appellant placed before me the guidelines on Members of Parliament Local Area Development Scheme (MPLADS) published in the year 2016 to substantiate his contention that the role of the Block Panchayat in such works are limited to supervision of those works being done under the initiative of the Beneficiary Committee formed, and that there is no employer-employee relationship between the Block Panchayat and the persons of the Beneficiary Committee who get involved in the work as a voluntary self-service. As per Clause 2.6 of the said guidelines, each Member of Parliament will recommend works upto the annual entitlement during the financial year in the format at Annexure-III to the District Authority concerned. The District Authority will get the eligible sanction to works executed as per the established procedure of the State Government. Clause 2.10 of the said guidelines states that District Collector/District Magistrate/Deputy Commissioner will generally be the District Authority to implement MPLADS in the District. It is also stated thereunder that if the District Planning Committee is empowered by the State Government, 8 M.F.A (ECC) No.75/2017 the Chief Executive Officer of the District Planning Committee can function as the District Authority. In case of Municipal Corporations, the Commissioner/Chief Executive Officer may function as the District Authority. It is also provided thereunder that if there is any doubt, Government of India in consultation with the State Government, will decide the District Authority for the purpose of MPLADS implementation. As per Clause 2.11(a) of the guidelines, the District Authority shall make the selection of an appropriate implementing agency through which a particular work recommended by an MP would be executed. Clause 2.11(b) provides that the selection of the implementing agency shall be undertaken in accordance with the State Government Rules/Guidelines applicable for the purpose.
9. It is clear from the above guidelines that the funds allotted by the Government of India under the annual MPLAD Scheme are to be utilised by the State Government through the District Authorities who, in turn, shall find the implementing agency for carrying out such works. Thus the role of the Block Panchayat in the work is that of the 9 M.F.A (ECC) No.75/2017 implementing agency which is to function under the control of the District Authority which represents the State Government. When viewed in the above perspective, the State Government represented by the District Authority concerned alone can be considered as the employer of those persons who undertake the works under the implementing agency. Thus, even if it is taken that the applicant before the Employee's Compensation Commissioner came under the definition of 'employee', inspite of the fact that he was doing the work under the Beneficiary Committee, still his employer can only be the State Government represented by the District Authority concerned.
10. As far as the present case is concerned, neither the State Government, nor the District Collector who issued Ext.R1(a) order are parties. On the other hand, the proceedings were initiated before the Employee's Compensation Commissioner against the Secretary of the Block Panchayat concerned and the Convenor of the Beneficiary Committee as if they were the employers of the applicant. Except for the testimonies of applicant and two witnesses as AW1 to AW3, there is absolutely no evidence 10 M.F.A (ECC) No.75/2017 adduced to establish that the opposite parties 1 and 2 in the aforesaid proceedings were the employers of the applicant. As already stated above in the discussions in paragraphs 8 and 9 supra, the guidelines on Members of Parliament Local Area Development Scheme would make it clear that the District Authority concerned under the State Government is the entity which takes control of the works undertaken through the implementing agency. Therefore, it is imperative that the State Government represented by the District Collector concerned shall be one of the opposite parties in the claim petition filed before the Employee's Compensation Commissioner seeking compensation for the injury sustained by a worker during the course of employment under MPLAD Scheme. As far as the present case is concerned, the failure of the applicant to implead the State Government represented by the District Collector as an opposite party in the claim petition filed before the Employee's Compensation Commissioner would render the said proceedings nugatory. In the above circumstances, it appears to be highly necessary in the interests of justice to provide an opportunity to the 11 M.F.A (ECC) No.75/2017 applicant (1st respondent in this appeal) to implead the State Government represented by the District Collector as an opposite party in E.C.C.No.30/2014, so that the learned Employee's Compensation Commissioner would be able to pass an effective and enforceable award if the said authority finds that the applicant was working in his capacity as an 'employee' in the road work concerned.
11. Accordingly, I deem it appropriate to direct the remand of the case to the trial court for fresh disposal after giving an opportunity to the applicant (1st respondent in this appeal) to implead the State Government represented by the District Collector as one of the opposite parties.
In the result, the appeal is disposed of as follows:
(i) The order dated 28.05.2015 of the learned Employee's Compensation Commissioner (Industrial Tribunal), Idukki in E.C.C.No.30/2014 stands set aside.
(ii) The case is remanded back to the trial court for fresh disposal after giving an opportunity to the applicant to implead the State Government represented by the District Collector as an opposite party to the proceedings.12 M.F.A (ECC) No.75/2017
(iii) If such impleadment is carried out upon the application, if any, filed by the applicant, the trial court shall give opportunity to both parties to adduce fresh evidence, if they so preferred.
(iv) Being a litigation of the year 2003, the trial court shall give top priority for the disposal of the case.
At any rate, the case has to be disposed of by the trial court within a period of six months from the date of receipt of the case records along with a copy of this judgment.
Sd/-
G.GIRISH, JUDGE jsr