Orissa High Court
Bansidhara Behera And Another vs Smt.Mahadei Sahu on 18 February, 2021
Equivalent citations: AIRONLINE 2021 ORI 34
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT: CUTTACK
F.A.O. Nos.432, 433, 482 & 483 of 2013
In the matter of Appeals under Section 30(1) of the Workmen's
Compensation Act, 1923;
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In F.A.O. No.432 of 2013
Bansidhara Behera and another ... Appellants
-versus-
Smt.Mahadei Sahu ... Respondent
In F.A.O. No.433 of 2013
Bansidhara Behera and another ... Appellants
-versus-
Smt. Sukumari Dakua ... Respondent
For Appellants : M/s. S.D.Das, M.Panda,
M.M.Swain, S.Biswal,
H.K.Behera and
H.Mohanty.
For Respondent : M/s.B.K.Behera(1) and
A.K.Das.
In F.A.O. No.482 of 2013
Smt. Sukumari Dakua ... Appellant
-versus-
Bansidhara Barada and another ... Respondents
In F.A.O. No.483 of 2013
Smt. Mahadei Sahu ... Appellant
-versus-
Bansidhara Barada and another ... Respondents
For Appellant : M/s.B.K.Behera(1) and
A.K.Das.
For Respondents : M/s. S.D.Das, M.Panda,
M.M.Swain, S.Biswal,
H.K.Behera and
H.Mohanty.
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________________________________________________________
Date of Hearing and Judgment : 18.02.2021
________________________________________________________
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Biswanath Rath,J. Since all the appeals indicated hereinabove arise out
of a common judgment dated 12.09.2013 involving W.C. Case
Nos.4 of 2010 and 5 of 2010 passed by the Commissioner for
Employees Compensation, Berhampur, Ganjam and require a
common hearing and disposal, the same are taken up together
for hearing and disposed of vide this common judgment. It be
mentioned here that FAO Nos.432 & 433 of 2013 are at the
instance of the owner, whereas FAO Nos.482 & 483 of 2013 are
at the instance of the claimants involving same judgment.
2. Undisputed fact remains that the claimants being the
wives of deceased persons involving W.C. Case Nos.4 of 2010
and 5 of 2010. On the premises of death of their husbands on
drowning of a boat, in which, both the deceased persons were
alleged to have moving on the direction of alleged
employer/opposite party to attend the work. Involving the death
for drowning of the boat, making out a case of employer-
employee relationship and that the death has arisen in course
and out of employment, W.C. cases were filed seeking
appropriate compensation. There appears there is contest in
between all these parties.
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3. Assailing the impugned judgment on behalf of owner, Sri
Das, learned Senior Counsel however taking this Court to the
discussion and findings on Issue No.1 submitted that for there
was statement of opposite party involving both the cases that
there is no master and servant relationship, the accident cannot
have any attachment to the opposite party in the proceeding
before Commissioner. It is alleged that the Commissioner,
however, taking into account 161 statement involving criminal
case in involvement of same incident, has come to opine that
there is employer-employee relationship and the accident has
also a link in course of work and arising out of work. It is alleged
that it is in the above wrong finding on the basis of 161
statement, the Commissioner has also come to hold that the
claimant's involving both proceedings are entitled to a sum of
Rs.1,23,360/- and 1,39,312/- respectively by way of
compensation, which required to be paid by owners/appellants.
4. Sri Behera, learned counsel appearing for the claimants,
on the other hand, taking this Court to some of the recordings of
the Commissioner, more particularly, at page-9 of the judgment,
contended that there is admission of the opposite party to the
extent that the deceased-husbands of the applicants were
working as labourers under the opposite party for building
construction work and on 18.08.2008 while they were shifting
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from Luniyapada to Bhaliyamala through a boat by crossing the
river, the boat drowned and the death of the deceased persons
has taken place. It is in this recording of the Commissioner, Sri
Behera contended that there remains no doubt that there is
employer-employee relationship and the death has also caused in
course of and arising out of work. It is at this stage of the matter,
Sri Das, learned Senior Counsel appearing for Appellant in the
two appeals for Respondents in the rest two appeals bringing to
the notice of this Court to M.C. No.633 of 2015 and M.C. No.634
of 2015, applications under Order 41 Rule 27 of the Code of Civil
Procedure filed in both the Appeals at the instance of owner,
prayed for considering the material brought through these Misc.
Cases as additional evidence. Reading through the documents,
Sri Das, learned Senior Counsel thus attempted to establish that
there was in fact no such work involving compensation case being
undertaken by the opposite party-Contractor. For the material
document not available at the relevant point of time and being
obtained in exercising provision under R.T.I. Act filed on
immediate receipt of the documents, there is an attempt of the
opposite party-employers for additional evidence in filing M.C.
Nos.633 and 634 of 2015.
5. Taking into consideration that the findings of
Commissioner solely rest on inadmissible evidence through 161
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recordings and considering the subsequent material produced by
way of additional evidence, this Court finds the document brought
by way of additional evidence may be relevant in resolving the
dispute.
6. For material relevancy by way of additional documents
filed before this Court for which this Court is of the opinion that
the compensation case requires fresh adjudication only
undertaking the exercise on the additional documents filed
herein. In the process, this Court while not delving much into the
additional document and its relevancy at this stage interfering in
the judgment in W.C. No.4/2010 and W.C. No.5/2010 sets aside
the same and by remitting both the matters to the Commissioner,
leaves it open to the Commissioner to proceed for additional
evidence on the basis of new documents filed here to arrive at
the finding on following issue is being framed by this Court:
"For the availability of the document by way
of additional evidence, the Commissioner is to
ascertain whether the document has bearing
on the case at hand and also to have his fresh
finding on employee-employer relationship if
established on accepting such document?"
7. In the process, this Court while setting aside the
judgments impugned herein involving W.C. Case Nos.4 and 5 of
2010 and remits the matter back to the Commissioner for
reassessment of the issue involved herein and directs the parties
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involved herein to bring additional written statement on
introduction of new documents filed herein with service of copy
on the claimants within two weeks both parties will also be at
liberty to lead evidence and rebuttal, if any, lead further
submission on the basis of further evidence confining to the
document brought by way of additional evidence. There shall be
fresh adjudication of the matter on the existing evidence and also
taking into consideration the additional evidence to come in the
process of adjudication on the issue framed by this Court. Fresh
judgment be passed involving all parties and all issues. Both the
parties are directed to appear before the Commissioner on 3rd
March, 2021 along with the copy of this judgment. The amount
already in deposit unless it is released shall be kept in fixed
deposit and disbursement of the same shall be dependent on the
ultimate outcome in the final adjudication involving W.C. Case
Nos.4 and 5 of 2010. It is observed if the amount is already
released, there shall be no recovery of the same following the
decisions of the Hon'ble Apex Court in Om Parkash Batish Vrs.
Ranjit alias Ranbir Kaur and others, reported in 2008 (12)
SCC 212 and in Central Mine Planning and Design Institute
Ltd. Vrs. Rannu Pasi and another, reported in 2006 (1) SCC
377.
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8. For the disposal of these two appeals with interfering in
the impugned judgments and remitting the matters to the
Commissioner, the proceeding filed in F.A.O. No.482 of 2013 &
F.A.O No.483 of 2013 need not require any further orders and
are disposed of in terms of the above direction.
9. For the claimants to suffer on account of remand of the
matter after so many years for Appellants bringing additional
evidence in High Court, this order is however subject to payment
of cost of Rs.5,000/- (Rupees five thousand) to each of the
claimant in court below also within two weeks.
....................................
Biswanath Rath,J.
Orissa High Court, Cuttack The 18th day of February, 2021/sks.