Madhya Pradesh High Court
Smt.Shakuntala And Anr. vs Audyogik Kendra Vikas Nigam And Anr. on 21 September, 2017
1 M.A.No.145/2004
High Court of Madhya Pradesh
Bench at Gwalior
SINGLE BENCH
: (Vivek Agarwal, J.)
Misc. Appeal No.145/2004
Smt. Shakuntala and another
Vs.
Audyogik Kendra Vikas Nigam and another
Whether approved for reporting :
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Shri Jitendra Sharma learned counsel for the appellants.
Shri Anil Sharma learned counsel for the respondents.
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JUDGMENT
( .09.2017) The appellants have filed this appeal under Section 30 of the Wormen's Compensation Act 1923 (hereinafter shall be referred to as the "Act of 1923") being aggrieved by the impugned order dt.24.12.2003 passed by the learned Commissioner for Workmen's Compensation Act, Gwalior, in Case No.84/B/2000 W.C.A. (Fatal) rejecting the claim of the appellants for compensation under the Act of 1923.
2. It is appellants' contention that the deceased Gayaram was working as Mali/Gardner under respondents No.1 and 2 and was taking care of the trees planted on the road side of the industrial area Malanpur, District Bhind. During the course of the employment and while discharging his duties, Gayaram has met with an accident arising out of the employment. An unknown vehicle dashed him and he died on the spot. An FIR was lodged at the Police Station Malanpur. It is averred that the deceased was 31 years of age and was getting monthly salary of Rs.1800/- and on such ground compensation of 2 M.A.No.145/2004 Rs.1,85,355/- was claimed and penalty of 50% and 18% interest on the amount of compensation was also claimed.
3. Learned Commissioner rejected the claim on the ground that it was not proved that the deceased was a workman of the respondents and it was also not proved that the death had occurred during the course of employment but the Commission found proved the income of the deceased to be Rs.1800/- per month and age 31 years. By recording two negative findings; namely the deceased was not a workman within the definition of 'Workman' and that he had not died during the course of the employment, claim was rejected.
4. Definition of 'workman' is given under Section 2 (n)
(ii) of the Act of 1923 which reads as under :-
"(n) 'workman' means any person who is :-
(i) --- --- ---
(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing;
but does not include any person working in the capacity of a number of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, includes a reference to his dependents or any of them."
5. The Commissioner has held that as per the provisions of the Act of 1923, employment of Gayaram is not proved. It is also mentioned that the opposite party i.e. Audyogik Kendra Vikas Nigam is not a scheduled employment in schedule II of the Act of 1923.
6. At this stage, it will be profitable to refer to Schedule II of the Act of 1923, wherein under Clause (viii), it is provided that "employed in the construction, 3 M.A.No.145/2004 maintenance, repair or demolition." Audyogik Kendra Vikas Nigam has not filed copy of their memorandum of association to show that what is the scope and nature of their work but it is submitted that they are into the work of development of infrastructure in the industrial area, which includes construction of roads, bridge etc. Similarly, Clause (xliv) provides "employed in spraying and dusting of insecticides or pesticides in agricultural operations of plantations." These two provisions when read with the evidence of respondent Audhyogik Kendra Vikas Nigam, wherein Shri C.P.Upadhyay appearing for the respondents deposed that he is working in Audhyogik Kendra Vikas Nigam as Junior Engineer and is in charge of building. He also admitted that the deceased Gayaram was a daily wager, who was deployed at Manalpur. He further submitted that he was working as Labourer in the development building. In the cross-examination, he admitted that Audhyogik Kendra Vikas Nigam has two offices; one at Gwalior and another at Malanpur. He further admitted that the deceased was working in Malanpur office and not in Gwalior office, whereas witness was from Gwalior office. He further admitted that he had deployed deceased at Malanpur site. He further admitted that he had not proved the muster roll and in the muster roll, period of deployment is not mentioned. He submitted that Malanpur being a site office has no fixed timing and on the date of accident he was at Gwalior, therefore, he is not aware as to the timing of the accident. He further admitted that the deceased was working as Mali and he had no knowledge as to the deductions made towards provident fund contribution. One Shri Sudhir Kumar Dixit S/o Shri Surendra Dev Dixit working in Audyogik Kendra Vikas Nigam as Assistant Engineer was also examined, who admitted that Gayaram was working as Mali at Malanpur. He admitted that salary of the deceased was Rs.1453/- and after deduction he was getting Rs.1279/- He admitted that his work is to supervise the plantation 4 M.A.No.145/2004 and water supply in the industrial area. He further admitted that extensive plantation has been made in the industrial area.
7. In view of such admission of Shri Dixit, it is apparent that the work of Audyogik Kendra Vikas Nigam also includes work of plantation besides developing infrastructure for industry, therefore, Audyogik Kendra Vikas Nigam is a part of scheduled industry, as has been provided in Schedule II of the Act of 1923 and as has been mentioned above the deceased performing the work of Mali was a Workman within the definition of "Workman" under Section 2 (n) (ii) of the Act of 1923. Therefore, in the light of the law laid down in the Kerala High Court in the case of Kunjoonjamma Daniel Vs. K.S.E.B. as reported in 2002 ACC 400 DB, wherein the ratio is that even if employment is of casual nature, if employment is for purpose of employer's trade or business, one is workman and from the evidence of Shri Dixit examined on behalf of the respondent Audyogik Kendra Vikas Nigam, it is apparent that the plantation is also part of trade and business of the employer and since admittedly the deceased was engaged as Mali, he was a workman within the definition of "workman" as provided in Section 2 (n) (ii) of the Act of 1923.
8. In view of such finding of this court so also the law laid down in the case of M/s Oriental Insurance Company Ltd. Vs. Muduli Rama Rao and another as reported in 2013 (136) FLR 883, since the deceased was employed for the purpose of employer's trade or business, the finding recorded by the Commissioner Workman Compensation Act that the deceased was not a workman is factually incorrect and Audyogik Kendra Vikas Nigam is not a schedule industry are set aside.
9. As regards compensation, it is admitted that the workman Gayaram died in the accident during the course 5 M.A.No.145/2004 of his employment and therefore, Audyogik Kendra Vikas Nigam is liable to pay compensation. Thus, the appellants are entitled for a sum of Rs.1,85,355/- as compensation already calculated by the learned Commissioner in its order taking monthly income of the deceased at Rs.1800/-. The employer is also liable to pay interest @ 12% p.a. from the date of filing of claim application till the date of actual payment. Employer will also be liable to pay penalty which is assessed at 25% of the amount of compensation.
10. Accordingly, appeal is allowed. The respondents employer shall pay Rs.1,85,355/- as compensation to the appellants alongwith 25% of the amount of compensation as penalty and also pay interest over the amount of compensation and penalty @ 12% from the date of filing of claim application till the date of actual payment.
(Vivek Agarwal) Judge SP