$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:18th August, 2017
+ FAO 11/2017 and C.M. Appl. 30919/2016
SUSHIL KUMAR UPADHYAY ..... Appellant
Through: Mr. A.K. Jain and Mrs. Santosh Jain,
Advocates
versus
COMMISSIONER EMPLOYEES
COMPENSATION ACT & ORS ..... Respondents
Through: Ms. Prabhsahay Kaur, Advocate for
respondents No.2 and 3
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the order dated 17th February, 2016 whereby compensation of Rs.3,68,340/- has been awarded to respondent No.2.
2. Respondent No.2 is the widow of Shiv Ram, who was employed with the appellant as a security guard and posted at residential quarters (GPRA) of PWD at Sector-3, Dwarka, New Delhi. On 4th September, 2010, Shiv Ram was on night duty at about 3:00 A.M, Shiv Ram went to check the flat in building No.14 when he found flat No.712 open and some material was missing from the said flat. Shiv Ram along with other guard went to the sixth floor and found the door of flat No.609 open. On going inside, he FAO 11/2017 Page 1 of 6 found some miscreants/robbers whereupon the miscreants/robbers caught hold of guard named Murli Yadav. Shiv Ram rushed inside to help Murli Yadav when one of the robbers shot Shiv Ram with country made revolver and ran away. Shiv Ram chased them but fell in the stairs of the fourth floor due to the gun injury. Shiv Ram was taken to DDU Hospital where he was declared dead. The police registered FIR No.311/2010 under Sections 457/380/460/302/34 IPC and under Section 27 of Arms Act at P.S. Dwarka, North. The deceased was survived by his widow and two minor children.
3. Respondent No.2 filed an application for compensation before the Commissioner, Employees' Compensation against the appellant and PWD as PWD had awarded the contract of security guards to the appellant.
4. The appellant contested the claim application mainly on the ground that he has settled the matter with respondent No.2 and paid a sum of Rs.90,000/- to respondent No.2.
5. The Commissioner, Employees' Compensation held the deceased Shiv Ram to be the appellant's employee and the accidental murder arose during the course of his employment with the appellant. The Commissioner rejected the alleged settlement on the ground that under Section 8(1) of the Employees' Compensation Act, no payment of compensation can be made directly to the claimant. The Commissioner, Employees' Compensation awarded compensation of Rs.3,68,340/-.
6. Learned counsel for the appellant urged at the time of the hearing that the deceased was not the employee of the appellant. It is further submitted that the contract was awarded by PWD to M/s Adarsh Cooperative Labour and Construction Society Limited and the appellant being the Ex.-Secretary, cannot be held personally liable for the compensation.
FAO 11/2017 Page 2 of 67. Learned counsel for respondent No.3 submits that PWD had awarded the contract for providing the security guards to M/s Adarsh Cooperative Labour and Construction Society Limited on 03rd December, 2009 for providing the security guards at residential quarters of PWD (GPRA) in Sector-3, Dwarka for 12 months. It is submitted that the appellant, being the employer, is liable to pay the compensation to the legal representatives of the deceased employee.
8. In the present case, on 04th September, 2010 the deceased was on night duty at residential quarters (GPRA) of PWD at Sector-3, Dwarka when he was murdered by the miscreants. The law is well settled that this murder is an accidental murder and the legal representatives of the deceased are entitled to the compensation. Reference be made to the judgment of Supreme Court in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC) and to the recent judgments of this Court in United India Insurance Co. Ltd. v. Kamlesh, 2017 SCC OnLine Del 9853, Ram Niwas Gupta v. Bindu Singh, 2017 SCC OnLine Del 7847 and Star Press v. Meena Devi, 2017 SCC OnLine Del 7849 in which this Court has extensively examined the law with respect to the liability of the employer to pay compensation in cases of accidental murders. The finding of the Commissioner, Employees' Compensation holding the appellant to be the employer of the deceased Shiv Ram is upheld.
9. Section 12 of the Employees' Compensation Act provides that the principal would be liable to pay the compensation to the legal representatives of the employee with a right to recover the same from the contractor. In the present case, PWD had awarded the contract to M/s Adarsh Cooperative Labour and Construction Society Limited which in turn FAO 11/2017 Page 3 of 6 had employed the security guards including the deceased, Shiv Ram who died during the course of his employment on 04 th September, 2010. By virtue of Section 12 of the Employees' Compensation Act, PWD is liable to deposit the compensation amount and, thereafter, recover the same from the contractor, M/s Adarsh Cooperative Labour and Construction Society Limited.
10. The impugned order is modified to the extent that PWD, Government of NCT of Delhi is held liable to deposit the compensation amount of Rs.3,68,340/- along with interest @ 12% per annum from the date of accident i.e. 04th September, 2010. After the aforesaid deposit, PWD, Government of NCT of Delhi is granted recovery rights to recover the said amount from M/s Adarsh Cooperative Labour and Construction Society Limited.
11. PWD, Government of NCT of Delhi is directed to deposit the compensation amount with the Registrar General of this Court within a period of four weeks from today. The order of disbursement of compensation shall be passed after examining respondent No.2 who is not present today. The Registrar General shall, therefore, keep the said amount in a fixed deposit till further orders so that the amount starts earning interest from the date of deposit.
12. Section 4A(3) of the Employees' Compensation Act provides that if the compensation amount is not deposited when it fell due, the employer shall be liable to pay the penalty upto 50% of the compensation amount. Admittedly, the society has not deposited the compensation amount within 30 days of the accident and, therefore, show cause notice is hereby issued to M/s Adarsh Cooperative Labour and Construction Society Limited as to why FAO 11/2017 Page 4 of 6 the penalty be not imposed under Section 4A(3) of the Employees' Compensation Act. The appellant, who is the member of the society, accepts notice and seeks time to file the reply. Let the reply be filed before the Commissioner, Employees' Compensation within a period of four weeks from today.
13. Learned counsel for PWD submits that the appellant is also personally liable to pay the amount to PWD. PWD is at liberty to urge this contention before the Recovery Officer who shall examine the personal liability of a member of the society in accordance with law.
14. The appellant, present in Court, submits that he is the member of the society. He submits that there are 10 more members and he shall file an affidavit to place on record the names, addresses and mobile number of all the members of the society. The appellant further undertakes on behalf of the society that the society shall not transfer, alienate or create any third party interest in respect of the assets of the society without the permission of the recovery officer. The undertaking of the appellant is accepted.
15. The appellant as well as other members of the society are directed to file the affidavit with respect to the assets of the society on the date of the accident i.e. 04th September, 2010, on the date of the impugned order as well as on today within a period of four weeks from today. The appellant shall also file the statements of all the bank accounts of the society as on the date of the accidents the date of the impugned order as well as on today.
16. The appeal and the pending application are disposed of.
17. List for reporting compliance on 22nd September, 2017.
18. Respondent No.2 is directed to remain present in Court on the next date of hearing along with the passbook of her savings bank account near the FAO 11/2017 Page 5 of 6 place of her residence as well as PAN Card and Aadhaar Card.
19. The parties shall appear before the Commissioner, Employees' Compensation on 26th September, 2017 when the Society shall file the reply to the show cause notice issued as to why the penalty be not imposed on the society under Section 4A(3) of the Employees' Compensation Act.
20. The record of the Commissioner, Employees' Compensation be sent back forthwith.
21. Copy of this judgment be sent to respondent No.2 as well as her counsel.
22. The Labour Department of Government of NCT shall also communicate this order to respondent No.2.
23. Copy of this judgment be given dasti to counsel for the parties under the signature of the Court Master.
AUGUST 18, 2017 J.R. MIDHA, J.
rsk
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