Allahabad High Court
Zx Security Services And Another vs State Of U.P. And 10 Others on 16 February, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 2 AFR/ Reserved Case :- WRIT- C No. - 3140 of 2018 Petitioner :- ZX Security Services And Another Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :-Ashish Agrawal Counsel for Respondent :- C.S.C. Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Ashish Agrawal, for the petitioners and Standing Counsel for the respondents.
2. The writ petition has been filed for quashing the award of the Commissioner (Employee's Compensation Act, 1923), dated 17.11.2017 passed in Case E.C.A. No. 13 of 2013, allowing the application for compensation filed by heirs of Sukhlal (allegedly employed as 'Security Guard', by the petitioners and died on duty on 26.12.2012) and granting compensation of Rs. 4,17,904/- and Notification of State of U.P., Labour Section-3, No.704/Chhattis-03-2014, Lucknow dated 09.07.2014, appointing among others, Deputy Labour Commissioner, who have completed five years service, as 'Commissioner' under Section 20 of Employee's Compensation Act, 1923 (hereinafter referred to as the Act).
3. Although remedy of an appeal under Section 30 of the Act, is available to the petitioners, but by challenging notification dated 09.07.2014, the petitioners have filed writ petition, instead of appeal as for filing an appeal, deposit of entire amount of award is a condition precedent. Earlier a vague arguments has been raised by the counsel for the petitioners that Sri Madhur Singh, the Presiding Officer, who passed impugned award was not having LL.B. degree as such for performing a judicial work under the Act, his appointment as Commissioner was illegal. As there was no pleading in this respect, in writ petition nor this issue with specific pleading was raised before Commissioner as such this Court by order dated 24.01.2018, directed the petitioners to file a Supplementary Affidavit, clearly stating about the educational qualification of Sri Madhur Singh. The petitioners filed a Supplementary Affidavit, in which, it has been stated that Sri Madhur Singh is M. Sc., LL.B. But again a vague plea has been raised without giving any details, that he was working as Deputy Labour Commissioner, since 2013 and had never worked as an Advocate. At the time of passing the award dated 17.11.2017, he had not completed five years service as such his authorization to discharge the functions of Commissioner under the Act was illegal.
4. Fact of the case is that Anita and others (respondents-4 to 9) (hereinafter referred to as the 'claimants') filed E.C.A. No. 13 of 2013 alleging therein that Sukhlal (husband of Anita and father of remaining claimants) was employed as 'Security Guard' in Z.X. Security Services (the petitioners). The petitioners entered into a contract with Kisan Sahkari Chini Mill Limited (hereinafter referred to as the mill) (respondent-10) to provide security service. Under the contract, the petitioners used to provide security guards to the mill, as and when required, for which certain amount was paid to them. Sukhlal was assigned duty of security guard on 26.12.2012 during 1600 hours to 2400 hours at the mill premises. On oral instructions of the officers of the mill, he was discharging the duty to get a que made of trucks and tractor trolleys on which the cane growers were bringing canes to mill premises. In discharge of aforesaid duty and during course of employment, he was run over by a tractor trolley on 26.12.2012 at about 2100 hours. The employees of the mill got Sukhlal admitted to Government Hospital, where he was declared as dead. At the time of death, age of Sukhlal was 37 years and he was getting salary of Rs. 4300/- per month as such the application for compensation has been filed.
5. On the notice being served, the petitioners as well as the mill filed their separate written statements. The mill took plea that Sukhlal was not in his employment rather he was in the employment of ZX Security Services, the petitioners. He also denied that accident of Sukhlal, had occurred within the premises of the mill during course of employment. He took plea that there was personal enmity of Sukhlal with the driver of tractor due to which the driver of tractor deliberately caused accident, outside the mill premises.
6. The petitioners also filed written statement in which they admitted that Sukhlal was in his employment but took plea that his duty at the mill premises was from 0800 hours to 2000 hours, on 26.12.2012, while the accident was caused at 2100 hours on 26.12.2012. As such he was not liable to pay any compensation. The claimants had received Rs. 3,50,000/- from the owner of the tractor by which the accident was caused as such they were not entitled for any compensation from the petitioners.
7. Both the parties filed their oral as well as documentary evidence before the Commissioner. The claimants examined Smt. Anita as PW-1, Bhuidhar as PW-2. The mill examined Pramod Rana as DW-1. The petitioners examined Kuldeep Singh (petitioner-2) as DW-2. The Commissioner, after hearing the parties, by the impugned award, found that death of Sukhlal had occurred due to accident on 26.12.2012 at 2100 hours at the mill premises. From the attendance register, it was not proved that Sukhlal was on duty from 0800 hours to 2000 hours on 26.12.2012. According to statement of Bhuidhar, duty of Sukhlal was from 1600 hours to 2400 hours and Bhuidhar was on duty from 0800 hours to 1600 hours as Security Guard. The petitioners have admitted that Sukhlal was in his service as 'Security Guard'. The accident occurred during course of employment. The claimants have filed High School Mark Sheet of Sukhlal in which his date of birth was shown as 10.09.1975. They have also filed papers to prove that he was getting salary of Rs. 4350/- per month at the time of accident. Accordingly the compensation has been awarded of Rs. 4,17,904/. Hence this writ petition has been filed.
8. The counsel for the petitioners submitted that Smt. Anita, in her cross examination, has admitted that she had received compensation from the tractor owner, by which, accident was caused. In her cross examination, she has further stated that she had claimed the compensation from the mill. Thus the petitioners were not liable to pay any compensation. Sukhlal was run over by the tractor trolley due to personal enmity, after his duty as 'Security Guard' and death of Sukhlal was not caused during course of employment as such under Employee's Compensation Act, 1923, the petitioners are not liable to pay compensation. Object of enactment of the Act, is to provide compensation by certain classes of employers to their employees, for the injury by accident, caused during course of employment. Section 20 of the Act, provides for appointment of the Commissioner for adjudication of claim relating to compensation. Division Benches of this Court in Surendra Kumar Sharma Vs. State of U.P., 2002 (2) AWC 1556 (DB) and Laxmi Pat Singhal Vs. Smt. Naseema, 2009 (2) AWC 1092 (DB) held that the Commissioner should be a person, possessing legal qualification as he is discharging a judicial function under the Act. In view of judicial observations, Section-20 the Act was amended by the Work-men's Compensation (Amendment) Act, 2009 (Act No. 45 of 2009), providing that State Government may, by notification in the Official Gazette, appoint any person, who is or has been a member of a State Judicial Service for a period of not less than five years or is or has been for not less than five years an advocate or a pleader or is or has been a Gazetted Officer for not less than five years having educational qualifications and experience in personnel management, human resource development and industrial relations to be a Commissioner for Employees' Compensation for such area as may be specified in the notification. Earlier, State of U.P. by Notification No. 2493/Chhattis-03-2010, Lucknow dated 11.11.2010, conferred jurisdiction of the Commissioner, in Labour Courts and Industrial Tribunals. However, State of U.P., through impugned Notification No. 704/Chhattis-03-2014, Lucknow dated 09.07.2014, conferred, jurisdiction of the Commissioner under Section 20 of the Act to Deputy Labour Commissioners, who have completed five years service. In view of provisions of Section 20 of the Act, there should be an individual assessment of eligibility of the persons to be appointed as the Commissioner under the Act. Sri Madhur Singh, the Commissioner, who has passed the impugned award was posted as Deputy Labour Commissioner under the provisions of U.P. Industrial Disputes Act, 1947. On the date of award, he had three years experience only. He was not qualified to be appointed as the Commissioner under the Act. Job of Deputy Labour Commissioner, U.P. Industrial Disputes Act, 1947, is to make settlements between the employer and workmen. He neither has knowledge nor experience of discharging judicial functions. Supreme Court in Triveni Engineering and Industries Ltd. Vs. Jaswant Singh, AIR 2010 SC 2939, has held that Deputy Labour Commissioner has no jurisdiction to decide the disputed question of relationship of employer and employees. The impugned notification dated 09.07.2014 is contrary to law laid down by this Court and null and void. Article 50 of the Constitution, mandates for separation of powers between executive and judiciary. Deputy Labour Commissioner is in administrative control of executive as such he could not be appointed as the Commissioner.
9. I have considered the arguments of the counsel for the petitioners and examined the records. The petitioners have admitted that Sukhlal was his employee and he was assigned duty of security guard, at the premises of the mill under contract. The petitioners took plea that the accident was not caused during course of employment inasmuch as duty of Sukhlal was during 0800 hours to 2000 hours on 26.12.2012, while the accident was caused at 2100 hours. But the petitioners could not prove this plea by adducing Attendance Register. The claimants examined Bhuidhar (PW-2), who has stated that he was on duty from 0800 hours to 1600 hours and duty of Sukhlal was from 1600 hours to 2400 hours as Security Guard at the mill premises. In normal course also the duty of 12 hours is not assigned to any workman. The findings of fact recorded by the Commissioner that accident of Sukhlal occurred during course of employment does not suffer from any illegality. This Court in exercise of writ jurisdiction cannot interfere with the findings of fact recorded by the Commissioner.
10. The petitioners have filed a copy of statement of Smt. Anita as Annexure -11 to the writ petition. A perusal of the statements shows that she has stated that she had filed her application for compensation against Kisan Sahkari Chini Mill Limited but she has no where admitted that she has received any compensation of Rs. 3,50,000/- from owner of the tractor rather specifically denied this fact. The petitioners were also impleaded in the claim petition. So far as liability to pay compensation is concerned, it has to be decided according to law and not on the basis of statement of the parties. The petitioners were employer of Sukhlal. Under the law, the employer was liable to pay compensation. They cannot deny their liability merely on the ground that claimant has stated that she had claimed compensation from Kisan Sahkari Chini Mill Limited.
11. Next argument of the counsel for the petitioners that Sukhlal was run over by the tractor trolley due to personal enmity, is concerned, in the criminal case the tractor driver was acquitted, by judgment of Judicial Magistrate dated 29.11.2013. The petitioners could not adduce any evidence to prove that the claimants had received compensation from tractor owner/ driver. As death of Sukhlal was caused during course of employment as such under the Employee's Compensation Act, 1923, the petitioners are liable to pay compensation to the claimants.
12. The petitioners have admitted that Sukhlal was his employee. Thus there was no dispute of employer's and employee's relationship. Section 19 of the Act provides that if any question arises in any proceedings under the Act as to the liability of any person to pay compensation including any question as to whether a person injured is or is not a employee or as to the amount or duration of compensation including any question as to the nature or extent of disablement, the question shall, in default of agreement, be settled by the Commissioner. In view of specific provision under the Act, Triveni Engineering's case (supra) has no application. Commissioner has full jurisdiction to decide all the issues.
13. Workmen's Compensation Act, 1923 was enacted prior to coming into force of the Constitution. Parliament has adapted it under Article 372 of the Constitution. Subjects relating to welfare of labour including conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old age pensions and maternity benefits are given in Entry-24 of List-III of Seventh Schedule of the Constitution. Parliament and State legislature both are competent to enact the law in respect of subjects mentioned in this entry. Object of enactment of the Act, is to provide compensation by certain classes of employers to their employees, for the injury by accident, caused during course of employment. Commissioner is the adjudicatory authority. Appeal under Section 30 of the Act has been provided in High Court. Thus the commissioner is in direct sub-ordination of High Court. Section 20 of the Act, provides for appointment of the Commissioner for adjudication of claim relating to compensation. Section 20 (1) as amended by Act No. 45 of 2009 is quoted below:-
" Section 20. Appointment of Commissioners.-- (1) The State Government may, by notification in the Official Gazette, appoint any person who is or has been a member of a State Judicial Service for a period of not less than five years or is or has been for not less than five years an advocate or a pleader or is or has been a Gazetted Officer for not less than five years having educational qualifications and experience in personnel management, human resource development and industrial relations to be a Commissioner for Employees' Compensation for such area as may be specified in the notification.
14. Section 20 authorises State Government to appoint the Commissioner by notification. Among various eligibility one of the eligibility is " a Gazetted Officer for not less than five years having educational qualifications and experience in personnel management, human resource development and industrial relations". It has been falsely stated that Sri Madhur Singh, was posted as Deputy Labour Commissioner since 2013, in Supplementary Affidavit. His bio-data was checked on Internet, in which it has been found that he was selected in Provincial Civil Services Examination of the batch 1992. From 1998, he was posted as Deputy Labour Commissioner. Admittedly he possesses qualification of M.Sc., LL.B. On the date of notification dated 09.07.2014, he was fully qualified to be appointed as the Commissioner under the Act. Assignment of jurisdiction of Commissioner under the Act to him was not illegal. He was selected through Public Service Commission U.P. as such his individual assessment at the time of assignment of the power of Commissioner was not required.
15. Supreme Court in Union of India v. Delhi High Court Bar Assn., (2002) 4 SCC 275, while upholding creation of Debt Recovery Tribunal, held that such Tribunals, whether they pertain to income tax or sales tax or excise or customs or administration, have now become an essential part of the judicial system in this country. Such specialised institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such Tribunals are not an effective part of the justice delivery system, like courts of law. It will be seen that for a person to be appointed as a Presiding Officer of a Tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer of the Appellate Tribunal he is, or has been, qualified to be a Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade I for at least three years or has held office as the Presiding Officer of a Tribunal for at least three years. Persons who are so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously. In Standard Chartered Bank v. Dharminder Bhohi, (2013) 15 SCC 341, held that from the principles that have been culled out by the Constitution Bench, it is perceptible that a tribunal is established under a statute to adjudicate upon disputes arising under the said statute. The Tribunal under the RDB Act has been established with a specific purpose and we have already focused on the same. Its duty is to see that the disputes are disposed of quickly regard being had to the larger public interest. It is also graphically clear that the role of the Tribunal has not been fettered by technicalities. The Tribunal is required to bestow attention and give priority to the real controversy before it arising out of the special legislation. As has been stated earlier, it is really free from the shackles of procedural law and only guided by fair play and principles of natural justice and the regulations formed by it.
16. In State of Karnataka v. Vishwabharathi House Building Coop. Society, (2003) 2 SCC 412, while upholding creation of Consumer Forum, held that legislative competence of Parliament and the State Legislatures respectively to provide for creation of courts and tribunals as envisaged in different lists contained in the Seventh Schedule of the Constitution of India. A bare perusal of the aforementioned provisions does not leave any manner of doubt as regard the legislative competence of Parliament to provide for creation of Special Courts and Tribunals. Administration of justice; constitution and organization of all courts, except the Supreme Court and the High Courts is squarely covered by Entry 11-A of List III of the Constitution of India. By virtue of clause (2) of Article 246 of the Constitution, Parliament has the requisite power to make laws with respect of constitution of organization of all courts except the Supreme Court and the High Court.
17. After insertion of Article 323-A and 323-B of the Constitution, various Tribunals have been created for exercising the jurisdiction at the par of High Courts. A 7 Judges Bench of Supreme Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, while upholding validity of creation of Central Administrative Tribunal, held that we are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. In the case of Administrative Tribunals, it has been pointed out that the Administrative Members who have been appointed have little or no experience in adjudicating such disputes; the Malimath Committee has noted that at times IPS Officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenures. For these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grass-root experience would best serve this purpose. To hold that the Tribunal should consist only of Judicial Members would attack the primary basis of the theory pursuant to which they have been constituted.
18. Constitution Bench of Supreme Court in Union of India v. Madras Bar Assn., (2010) 11 SCC 1, while upholding creation of National Company Law Tribunal held that Constitution contemplates judicial power being exercised by both courts and tribunals. Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by legislative enactments. The High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments. If jurisdiction of the High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references. It also follows that the legislature has the power to create tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments. Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to tribunals. Following principles have been laid down in this case:-(a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal.
(b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a judicial tribunal. This means that such tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the tribunal should have the independence and security of tenure associated with judicial tribunals.
(c) Whenever there is need for "tribunals", there is no presumption that there should be technical members in the tribunals. When any jurisdiction is shifted from courts to tribunals, on the ground of pendency and delay in courts, and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the tribunals should normally have only judicial members. Only where the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, where presence of technical members will be useful and necessary, tribunals should have technical members. Indiscriminate appointment of technical members in all tribunals will dilute and adversely affect the independence of the judiciary.
(d) The legislature can reorganise the jurisdictions of judicial tribunals. For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (a standard example is the variation of pecuniary limits of the courts). Similarly while constituting tribunals, the legislature can prescribe the qualifications/eligibility criteria. The same is however subject to judicial review. If the court in exercise of judicial review is of the view that such tribunalisation would adversely affect the independence of the judiciary or the standards of the judiciary, the court may interfere to preserve the independence and standards of the judiciary. Such an exercise will be part of the checks and balances measures to maintain the separation of powers and to prevent any encroachment, intentional or unintentional, by either the legislature or by the executive.
19. Constitution Bench of Supreme Court again in Madras Bar Assn. v. Union of India, (2014) 10 SCC 1, while upholding National Tax Tribunal held as follows:-
(i) Parliament has the power to enact legislation and to vest adjudicatory functions earlier vested in the High Court with an alternative court/tribunal. Exercise of such power by Parliament would not per se violate the "basic structure" of the Constitution.
(ii) Recognised constitutional conventions pertaining to the Westminster model do not debar the legislating authority from enacting legislation to vest adjudicatory functions earlier vested in a superior court with an alternative court/tribunal. Exercise of such power by Parliament would per se not violate any constitutional convention.
(iii) The "basic structure" of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.
(iv) Constitutional conventions pertaining to the Constitutions styled on the Westminster model will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced are not incorporated in the court/tribunal sought to be created.
20. There is no illegality in creation of tribunal (Employee's Compensation Commissioner) under the Act. Notification of State of U.P. dated 09.07.2014 is fully in consonance of Section 20 of the Act. Sri Madhur Singh, Presiding Officer, who has passed impugned award was fully eligible to discharge the functions of the Commissioner under the Act on 09.07.2014.
21. In view of aforesaid discussions, writ petition has no merit and is dismissed.
Order date : 16.2.2018/Rahul/-