Madras High Court
Bishop vs Mariappan on 7 June, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.06.2011
CORAM
THE HONOURABLE MR. JUSTICE K.CHANDRU
C.M.A.NOS.2234 TO 2245 OF 2006
CONT.P.NO.1668 OF 2007
C.M.A.NO.2234 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Mariappan
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.301 of 2002 and allow the appeal.
C.M.A.NO.2235 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Maheswari
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.4 of 2003 and allow the appeal.
C.M.A.NO.2236 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Padma
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.5 of 2003 and allow the appeal.
C.M.A.NO.2237 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Malar
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.6 of 2003 and allow the appeal.
C.M.A.NO.2238 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Savithri
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.271 of 2002 and allow the appeal.
C.M.A.NO.2239 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Indirani
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.272 of 2002 and allow the appeal.
C.M.A.NO.2240 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Inipothum
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.273 of 2002 and allow the appeal.
C.M.A.NO.2241 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Chenthamarai
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.274 of 2002 and allow the appeal.
C.M.A.NO.2242 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Vijaya
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.275 of 2002 and allow the appeal.
C.M.A.NO.2243 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Sujatha
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.300 of 2002 and allow the appeal.
C.M.A.NO.2244 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Amudha
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.302 of 2002 and allow the appeal.
C.M.A.NO.2245 OF 2006
1.Bishop
CSI Diocese of Vellore
1/A Officers Line
Vellore 632 001.
2.Presbyter Incharge
CSI Katpadi Pastorate
Katpadi, Vellore District. ... Appellants
VS.
1.Savithri
2.A.C.Rajan ... Respondents
(Cause Title accepted vide order
dated 25.07.2006 made in M.P.No.1/2006
in C.M.A.SR.Nos.49361, 64, 67, 70, 73,
76, 79, 82, 85, 88, 91 and 49394/2006)
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Act, 1923 to set aside the order of the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6) dated 22.03.2006 in W.C.No.172 of 2003 and allow the appeal.
For Appellants : Mr.T.R.Sundaram
For Respondent-1
(in all CMAs') : Mr.V.K.Rajagopalan
Government Advocate
CONT.P.NO.1668 OF 2007
1.Bishop
CSI Diocese of Vellore
1/A Officers Line, Vellore 632 001.
2.Presbyter Incharge
CSI Church
Katpadi, Vellore District. ... Petitioners
VS.
Mr.R.K.Ravishanker
Deputy Commissioner of Labour-I
Office of the Commissioner for
Workmen Compensation
Chennai 600 006. ... Respondent
PRAYER: Petition filed under Section 11 of the Contempt of Courts Act, 1971 to punish the respondent for non-compliance of the order dated 01.08.2006 passed in M.P.No.2 of 2006 in C.M.A.No.2234 of 2006 on the file of this Court.
For Petitioners : Mr.T.R.Sundaram
For Respondent : Mr.R.Murali
Government Advocate
C O M M O N J U D G M E N T
These Civil Miscellaneous Appeals and the Contempt Petition came to be listed under the caption "specially ordered" vide order dated 21.04.2011 by the Hon'ble Chief Justice.
2.Heard Mr.T.R.Sundaram, learned counsel for the appellants in all the Civil Miscellaneous Appeals and for the petitioner in Cont.P.No.1668 of 2007 and Mr.T.S.Gopalan, learned counsel appearing for the caveators in all the Civil Miscellaneous Appeals and Mr.R.Murali, learned Government Advocate appearing for the respondent contemnor in the contempt petition.
3.In view of the fact that all the Civil Miscellaneous Appeals arose out of the orders passed by the Commissioner for Workmen's CompensationI, Chennai 6, (Deputy Commissioner of Labour I, Chennai) in various W.C. Cases, which arose out of the same incident, which occurred on 09.05.2002, they were heard together and a common judgment is passed. The contempt petition arose out of the order dated 01.08.2006 passed in M.P.No.2 of 2006 in C.M.A.No.2234 of 2006 and the same was also tagged along with the Civil Miscellaneous Appeals. Since it was felt that the outcome of the various Civil Miscellaneous Appeals will decide the fate of the contempt, arguments were heard in all the petitions.
4.The appellants are the Bishop of C.S.I. Diocese of Vellore and the Presbyter Incharge of C.S.I. Katpadi Pastorate at Katpadi, Vellore. The 12 Civil Miscellaneous Appeals arose out of the order dated 22.03.2006 passed in W.C.Nos.301 of 2002, 4 of 2003, 5 of 2003, 6 of 2003, 271 of 2002, 272 of 2002, 273 of 2002, 274 of 2002, 275 of 2002, 300 of 2002, 302 of 2002 and 172 of 2003 by the Commissioner for Workmen's Compensation I, Chennai 6 (Deputy Commissioner of Labour I, Chennai-6). The appeals were filed under Section 30 of the Workmen's Compensation Act, 1923 (shortly "the Act"). Proviso to Section 30(1) of the Act clearly states that no appeal was shall lie against any order, unless a substantial question of law is involved in the appeal. But however, when the matters were admitted on 01.08.2006, no question of law has been framed by this Court. In the memorandum of appeals, according to the learned counsel for the appellants, the following questions of law arose for consideration:-
"Substantial Question of Law involved in this appeal
1)Whether the provisions of W.C.Act apply to the Appellants 1 and 2, and can they be termed as "Employer" in accordance with Sec. 2(c) of the W.C. Act.
2)Is not the 2nd Respondent liable to answer the claim of the 1st respondent, as construction work is not a trade and business of the Appellants 1 and 2 within the meaning of Sec.12 of the W.C.Act.
3)Is the claim of the 1st Respondent maintainable against Appellants 1 and 2 who are neither "Employer" nor "Principal Employer" to the 1st Respondent."
But there is no indication in the order sheet that this Court had agreed with those questions of law. Those draft questions of law are provided by the learned counsel for the appellants.
5.The facts leading to the filing of these Civil Miscellaneous appeals are as follows:-
(a) The second respondent in these appeals is an Architect by profession and having his office at Chennai. The appellants, in order to execute a project, including building of new Church comprising of ground and floors and also a compound wall in the land owned by them at Katpadi, Vellore, entered into an agreement. When the project was undertaken, the contesting respondents (caveators) were engaged as construction workers in the project at Katpadi Chittoor Road, near C.S.I. Church.
(b) On 09.05.2002, during the course of their employment, while the centering work was progressing, the materials forming part of the centering work, fell down on the contesting respondents (caveators) and they suffered grievous injuries due to the falling of the roof of the Church constructed by the appellants 1 and 2. The construction workers namely the contesting respondents (caveators) suffered injuries, which required minimum medical treatment. Initially, they have taken to the Government Hospital at Vellore and thereafter, shifted to the C.M.C. Hospital, Vellore for further treatment.
(c) The accident in which the building collapsed gave rise to a criminal case which was registered in the Katpadi Police Station as Crime No.188/2002 under Sections 278, 336, 337 and 338 IPC.
(d) The contesting respondents (caveators) thereafter filed applications claiming compensation before the Deputy Commissioner of Labour I, Vellore (Notified Workmen's Compensation Commissioner) claiming compensation as the accident arose during the course of their employment. He also gave the various rates of daily wages which were paid to them in most of the cases. The daily wages work out to Rs.70/- per day. The Deputy Commissioner of Labour I, Vellore, took on file those applications and assigned various W.C. numbers as noted above and issued notice to the appellants as well as to the second respondent.
(e) Before the Deputy Commissioner of Labour I, the first respondent took a plea that there was no employer - employee relationship between the contesting respondents (caveators) and in building the Church, no trade or business was carried out and the followers of Christianity paid contributions for construction of the Church. The Church is main for religious and ecclesiastical purposes. Hence, the Act will not apply to the activities carried on by them and even in the engagement of the respondents (caveators) there was no privity of contract. It was only the second respondent, who was engaged for constructing the Church and he alone is the employer.
(f) The second appellant - Presbyter Incharge and Secretary of C.S.I. Katpadi Pastorate, Katpadi adopted the same argument and also added that since the second respondent is a Contractor, who had engaged more than 50 workers and supplying necessary materials for construction activities, under the provisions of the Building and Other Constructions Workers (Regulation of Employment and Conditions of Service) Act, 1996, there is no liability for him to pay any compensation. The second respondent stated that he was only an Architect and on behalf of the appellants, he was doing the designing work, which was done as per the directions of the appellants 1 and 2. He further stated that the construction work of the building was owned by appellants 1 and 2 and without prejudice to the above, it is submitted that the injuries suffered by them does not require any compensation.
(g) Apart from each of the contesting respondent (caveator) were examined as P.W.1, Dr.Riyaz Ahmed was examined as P.W.2. The F.I.R., wound certificate, the agreement between the appellants and the second respondent as well as the disability certificates were filed. On behalf of the appellants, one Karunakaran was examined as R.W.1 and the second respondent was examined as R.W.2. On their side, the agreement between the appellants and the second respondent, appointment of second respondent as a building consultant and the agreement between the contractor are filed.
(h) The Commissioner for Workmen's Compensation - I, Vellore, has framed the following four issues in each of the appeal:
(a) Whether the contesting respondents (caveators) were injured during the course of their employment, while working under the appellants 1 and 2 and the second respondent.
(b) what are the age and wages paid to the respondents?
(c) the compensation to which they are entitled to ?
(d) if so, who should pay the compensation ?
(i) The Commissioner, after analysing the evidences, both oral and documentary, found that the accident took place on 09.05.2002 at around 09.00 a.m., when the concrete floor paving and the contesting respondents (caveators) were sustained injuries and they were admitted to Hospital. With reference to the wages, it was ascertained as Rs.70/- per day and there was no dispute regarding the age of the workers. He also found that the appellants 1 and 2 are the owners of the building and the second respondent was a contractor and the actual contract was carried on by Mr.Manoharan and Mr.Sanjeevirayan. The Commissioner also found that the second respondent was working as an Architect consultant, but however, he had brought men and materials and that the building was owned by appellants 1 and 2. Therefore, decided the disability as per the oral and documentary evidence given by P.W.2 Doctor. With reference to the disability, after ascertaining the percentage, the authority fixed the age of each of the worker and calculated compensation by holding that the workmen were drawing Rs.70/- per month. The authority also held that the minimum wages fixed in terms of G.O.(2D) No.29, dated 24.04.2000 worked out to Rs.2914.34 and therefore, even in the absence of any wage slip, it can be safely presumed that they were paid minimum wages. With reference to the liability to pay compensation, the authority found that the second respondent was engaged on contract basis by estimating the cost of work at Rs.40,00,000/- and he was to supply men and materials for the work. The second respondent also admitted that he was the one, who paid wages to the contractor Mr.Manoharan. But nevertheless, as per the agreement, the second respondent was engaged by appellants 1 and 2 and through him, the work was carried out on behalf of the appellants and therefore, they are liable to pay compensation together with interest. The compensation worked out to Rs.1,78,226/- in the case of the contesting respondent (caveator) in C.M.A.No.2234 of 2006. In respect of others, the compensation varied depending upon the age factor of each of the contesting respondent (caveator). Challenging the orders passed by the Commissioner for Workmen's Compensation, the Civil Miscellaneous Appeals came to be filed.
6.Assailing the findings rendered by the Commissioner for Workmen's Compensation, it is contended by the appellants that they are not employers in terms of Section 2(c) of the Act and there was no privity of contract and since the second respondent is only a Contractor and he has engaged the other contractors, the liability should only fall on them. Even assuming that the appellants are termed as employers and the second respondent is a contractor, the construction work was not due to any trade or business and therefore, they are not liable to pay any compensation.
7.With reference to the application of the Act, it must be noted that the contesting respondents (caveators) were construction workers and the activities in which they were employed is a building activity, Section 38 of the Building and Other Constructions Workers (Regulation of Employment and Conditions of Service) Act, 1996 (Central Act, 27 of 1996) specifically applies the provisions of the Workmen's Compensation Act, 1923. Apart from that, in the State of Tamil Nadu, it is also a special enactment, namely, the Tamil Nadu building and Construction Workers (Conditions of Employment and Miscellaneous Provisions) Act, 1984 (Tamil Nadu Act, 29 of 1986) and Section 40(1) applies the provisions of the Workmen's Compensation Act, 1923, in relation to building and construction workers. The term 2(g) defining employer is an inclusive definition and by which, it was made clear that inclusive of contractor and the principal employer, the term establishment is defined under Section 2(h) by which it is stated that any establishment engaged in the work of completing construction or the work of engineering construction is covered by the provisions of the Act. Under Section 37 of the said Act, any agreement, which is inconsistency of provisions of the Act are not valid. Therefore, it is too late in the date for the appellants to contend that they are not employers and there was no privity of contract between them and the contesting respondents (caveators). It is unnecessary whether the activities carried on in constructing the Church and other project has any trade or business over to, since by incorporation the provisions of the Act are made applicable to construction workers also.
8.With reference to the disability, the Commissioner has relied upon the evidence of P.W.2 Doctor and had agreed with the oral and documentary evidence produced by him and the Act, certainly after prescribing Schedule I providing for various percentage of loss of earning capacity / loss of life, does not rule out the compensation being ascertained on account of the disablement proved by the medical evidence.
9.Therefore, this Court do not find any substantial question of law. The Commissioner has correctly appreciated the evidence put in before him and came to the conclusion that it is the appellants, who are liable to pay compensation. By entering into an agreement with the second respondent, the appellants cannot absolve their liabilities to pay compensation. Under the circumstances, this Court is not inclined to interfere with the well considered orders passed by the Commissioner of Workmen's Compensation, in various W.C. cases and hence, C.M.A.Nos.2234 to 2245 of 2006 stand dismissed. But due to the peculiar facts and circumstances of the case, the parties are allowed to bear their own costs.
Cont.P.No.1668 of 2007It is seen from the records that the appellants received the order of the Commissioner on 28.03.2006. The statutory limitation of 60 days expired on 27.05.2006. But the Commissioner, on 05.06.2006, issued a recovery notice in respect of all the cases. The appellants deposited the entire amount of compensation by way of two demand drafts on 23.06.2006. The Commissioner encashed the amount on 30.06.2006 and 03.07.2006. On 06.07.2006, the Commissioner informed the claimants that they are at liberty to withdraw the amount. On 06.07.2006, the awarded amounts were disbursed to the claimants. It is only on 07.07.2006, the receipts of the deposits were collected by the appellants. On 21.07.2006, the appellants informed the Commissioner that appeals have been preferred. On 01.08.2006 in C.M.P.No.2/2006, in C.M.A.No.2234/2006, an interim order was granted. But in spite of the information of pendency of the appeals (though at defective S.R. Stage) the amounts were disbursed to the employees on 06.07.2006. Therefore, when the appellants came to receive the receipts, they were informed that the amounts were already disbursed to the workers. Despite the same, being aware of the amounts already been disbursed, the appellants moved this Court with the Civil Miscellaneous Appeals and also got interim order. Thereafter, on the alleged disobedience of the order dated 01.08.2006 passed in M.P.No.2 of 2006 in C.M.A.No.2234 of 2006, the contempt petition came to be filed against the Deputy Commissioner of Labour I, Office of the Commissioner for Workmen Compensation, Chennai and notice was ordered. On notice, a counter affidavit dated 08.12.2007 was filed by the Commissioner. According to the appellants, the Commissioner has committed wilful disobedience of the order passed by this Court. However, the facts and circumstances of the case clearly indicates that there was no disobedience of the order of this Court. In fact, the order was obtained after the disbursement of the amounts to the workers by the Commissioner and hence, this Court do not find that there was disobedience, much more, any wilful disobedience, to punish the respondent. This Court accepts the explanation offered by the respondent. Hence, the Contempt Petition also stands dismissed.
TK To Deputy Commissioner of Labour-I Office of the Commissioner for Workmen Compensation Chennai 600 006