Allahabad High Court
Lalit Kumar vs Shahzad Minor Son Of Late Rafat ... on 12 July, 2021
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 5
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 330 of 2021
Appellant :- Lalit Kumar
Respondent :- Shahzad Minor Son Of Late Rafat Khan
Counsel for Appellant :- Sunil Kumar Srivastava
Hon'ble J.J. Munir,J.
Order on Delay condonation application
This appeal has been reported to be within time. Therefore, no order is required to be made on delay condonation application. The application is consigned to record.
Order on appeal
This is an appeal preferred from a judgment awarded of the Employees Compensation Commissioner dated 20.6.2020 passed in Case No.231/E.C.A./2015 (Shahzad and others Vs. Executive Engineer and others).
It appears that a claim under section 4 of the Employees Compensation Act,1923 (for short ''the Act of 1923') was filed on 14.5.2015 against the Executive Engineer, Electricity Urban Distribution Division, Third, Rampur Bagh, Bareilly, Superintending Engineer, Electricity Urban Distribution Division, Third, Rampur Bagh, Bareilly and Lalit Kumar, the present appellant on behalf of claimant-respondent Shahzad. It was claimed by the claimant-respondent that Rafat Khan @ Bhura son of Kamar Ali (hereinafter referred to as the ''employee') was a contractual employee with the respondents arrayed in the claim-petition i.e. the Executive Engineer, Electricity Urban Distribution Division, Third, Rampur Bagh, Bareilly, the Superintending Engineer, Electricity Urban Distribution Division, Third, Rampur Bagh, Bareilly w.e.f. 10.6.2014. The employee was remunerated at the rate of Rs.5200/- per month.
On 19.6.2015 at about 3:25 p.m., the employee in accordance with the direction of the employer, which included all the three opposite parties to the claim petition (hereinafter referred to as ''employers') was about his work at a place called Meera ki Paith, Barielly. He was repairing some branch line. As soon as he connected the branch line, electricity supply was turned on. This led the employee to suffer an electric shock that threw him down on the road side. He sustained grievous injuries. In consequence of the injuries, on 19.6.2015 at about 50 minutes past 3 'O' clock, he passed away. A first information report in this regard being Case Crime No.438 of 2015 was lodged with the police station concerned. It is the claimant's case that the employee had died during the course of employment. The claimants were entirely dependent upon the deceased employee and have no other source of income. A claim for compensation in the sum of Rs.20 lakhs, together with 15 per cent annual interest was made. The claim aforesaid was duly contested by the respondents and tried by the Employees Compensation Commissioner. He framed as many as five issues. One of the issues i.e issue no.5 reads to following:-
"5 D;k oknhx.k foi{khx.k ls ekaxh x;h {kfriwfrZ /kujkf'k ikus ds vf/kdkjh gSa] ;fn gka rks] fdruh vkSj fdl foi{kh ls\ "
In answering issue no.5, the Employees Compensation Commissioner has held that the Executive Engineer and Superintending Engineer were the principal employers when the accident happened. Therefore, it would be their liability to pay the employee compensation in the first instance, and further held, that the two principal employers would be free to recover the compensation to be paid to the claimant from the third respondent i.e. appellant herein, who was also put under notice for payment of interest and penalty under section 4 A and 3 B of the Act of 1923.
Learned counsel for appellant has filed this appeal on behalf of labour contractor saying that in the first instance he is not required to pay the compensation, but has only to indemnify the principal employers. He has, therefore, filed this appeal without the statutory certificate of deposit, required by the third proviso to section 30 (1) of the Act of 1923.
Mr. Sunil Kumar Srivastava, learned counsel for appellant argues that the mandate for an appeal to be accompanied by a certificate of deposit issued by the Employees Compensation Commissioner would be applicable to the principal employers, against whom liability in the first instance has been imposed by the impugned award, passed by the Employees Compensation Commissioner. It would not apply to a person like the appellant, who has been saddled with liability to indemnify the principal employers, after they have made good the compensation payable to the claimants.
It must be remarked that whether the appellant has the liability to indemnify the principal employers or to pay the employee's compensation in the first instance, so far as the requirement of deposit under the third proviso to section 30 (1) of the Act of 1923 is concerned, the appellant has to bear the burden under the impugned award of making good the deposit with the Compensation Commissioner, if he appeals the award, that is. Section 30 does not make any distinction amongst employers in the matter of payment to the claimant. What section 30 requires is that the employer as a condition precedent to appealing an order of the Compensation Commissioner has to make good deposit of compensation with the said Commissioner and ensure that the certificate of deposit is appended to the memorandum of appeal.
In the absence of the certificate of deposit by the employer, an appeal under section 30 of the Act 1923 is not at all competent. In short, it is not a duly constituted appeal at all, on which this Court can act or take cognizance.
Learned counsel for appellant was given opportunity to seek instructions from his client and make good the required deposit of compensation. However, learned counsel for the appellant submits that appellant is not liable in the first instance to pay the workman's compensation, but only by way of indemnification. Therefore, the appellant is not obliged to make any kind of deposit under the Act with the Employees Compensation Commissioner or to produce the certificate of deposit.
As already said by this Court, this kind of distinction between employers drawn by learned counsel for the appellant is illusory and contrary to the third proviso to section 30 of the Act of 1923.
In the circumstances, this appeal being not accompanied by the necessary certificate of deposit is not maintainable.
It is accordingly rejected.
Order Date :- 12.7.2021
Tamang
