Bombay High Court
Shree Datta Shetkari Sahakari ... vs Babasaheb Sopan Sanap And Others on 13 April, 2016
Bench: P.R. Bora
3463-15 FA.doc
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3463 OF 2015
1. Shree Datta Shetkari Sahakari Sakhar
Karkhana Ltd. At Shirol,
Post. Dattanagar, Tq. Shirol,
District Kolhapur
Through its Chairman
2. Shree Datta Shetkari Sahakari Sakhar
Karkhana Ltd. At Shirol,
Post. Dattanagar, Tq. Shirol,
District Kolhapur
Through its Managing Director
ig .. Appellants
(Orig. non Applicants
Nos.1 and 2)
Versus
1. Babasaheb s/o Sopan Sanap,
Age 48 years, Occu. Labour & Agri.
R/o. Bhavanwadi,
Tq. And District Beed.
2. Vitthal s/o Babasaheb Sanap
Age 23 years, Occu. Education
R/o. As above.
3. Jalindar Babasaheb Sanap
Age 22 years, Occu. Education
R/o. As above. (Ori. Claimants)
4. Laxman s/o Satyabhan Khandare
Age major, Occ. Labour contractor
R/o Karegavhan,
Tq. and District Beed. (Ori. Non applicant No.3)
... Respondents
...
Mr.Umakant U. Wagh, Advocate h/f Mr. A. V. Hon Advocate for
Appellants;
Mr. M.S. Karad, Advocate h/f Mr.S.S.Thombre, Advocate for
Respondent Nos. 1 to 3;
Mr. Abhijit Choudhary, Advocate for Respondent No.4.
...
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3463-15 FA.doc
2
CORAM: P.R.BORA, J.
Date of reserving the judgment : 06th April, 2016
Date of pronouncing the judgment: 13th April, 2016
...
JUDGMENT :
. Heard. Admit. With the consent of the learned
Counsel appearing for the parties, heard finally.
1) Original non-applicant Nos.1 and 2 in Workmen's
Compensation Case No.24/2012 decided on 04.11.2015 by
the Commissioner, Employees' Compensation and Civil Judge
Senior Division, Beed, have filed the present appeal, taking
exception to the Judgment and Award passed therein.
2) The aforesaid claim application was filed by
present respondent nos. 1 to 3 (hereinafter referred to as the
claimants), claiming compensation on account of death of
Ashrabai in an accident, happened on 15.02.2012. It was the
contention of the claimants before the Employees'
Compensation Commissioner (hereinafter referred to as
Commissioner) that, Ashrabai was working as sugarcane
cutting labour with the present appellants. It was their
further contention that, deceased Ashrabai was engaged as
labour with the appellants, through respondent No.4 (original
respondent no.3) for the season 2011-12. It was further
contention of the claimants that, deceased Ashrabai was
getting Rs.8,000/- per month and at the time of her death,
her age was 40 years.
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3) As averred in the claim petition, the alleged
accident happened on 15.02.12, when deceased Ashrabai
and the claimants were bringing the sugarcane of one
Kallappa Bhojkar to the appellant sugar factory, after the
same was cut by them from the sugarcane field of said
Kallappa Bhojkar. At the relevant time, the bullock-cart,
wherein the sugarcane cut from the Kallappa Bhojkar was
loaded, was in queue in the front gate of the appellant sugar
factory. Deceased Ashrabai was sitting in bullock-cart.
According to the claimants, the accident happened as the
bullocks jumped wildly and Ashrabai fell on the ground and
the bullock-cart ran over her person, Ashrabai suffered
severe injuries and while she was being taken to hospital
died on the way to the hospital. The claimants, therefore,
claimed the compensation invoking the provisions of the
Employee's Compensation Act to the tune of Rs.7,36,680/-
and also the amount of penalty.
4) The appellants contested the claim by filing their
written statement. The appellants denied the claim in toto.
Appellants also denied that, deceased Ashrabai was in their
employment or that there was any employer-employee
relationship between the appellant sugar factory and
deceased Ashrabai. It was also contended by the appellants
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that, the death of Ashrabai did not occur because of injuries
caused to her in the accident. It was also contended that,
the death of Ashrabai had occurred because of her own
negligence.
The respondent No.4 herein i.e. Original respondent
No.3 had also submitted his written statement, wherein he
accepted that, deceased Ashrabai was recruited by him for
the work of cutting sugarcane registered with the appellant
sugar factory. In order to substantiate the contentions raised
in the claim petition, the respondent no.1 namely;
Babasaheb deposed before the Commissioner. The appellant
sugar factory had also examined one witness by name
Suresh who was working as Supervisor at the relevant time
in the appellant sugar factory. The respondent No.3 had also
deposed before the Commissioner. The learned
Commissioner on assessment of the oral and documentary
evidence brought before him, allowed the petition in part.
The learned Commissioner Awarded the compensation of Rs.
7,36,680/- to the claimants jointly and severally from
respondent nos. 1 and 2 i.e. Present appellant nos. 1 and 2
along with the simple interest at the rate of 12% per annum
from the date of filing of the application till its realization.
The Commissioner also awarded the sum of Rs.3,68,340/-
towards the amount of penalty to the claimants jointly and
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severally from respondent nos. 1 and 2. Aggrieved thereby,
the employer sugar factory has filed the present appeal.
5) Mr. Umakant Wagh, the learned Counsel for the
appellants assailed the impugned Judgment and Award on
several grounds. Learned Counsel submitted that, though
the claimants have failed in proving the employer-employee
relationship between sugar factory and deceased Ashrabai,
the learned Commissioner has saddled the appellants with
the liability of paying compensation to the claimants. It was
further contended that, wages of deceased Ashrabai have
also not been proved by the claimants. According to the
learned Counsel, except the oral statement of PW-1
Babasaheb, there was no evidence before the Commissioner
as about the income of deceased Ashrabai. Learned Counsel
further argued that, before imposing the liability of penalty
and directing the appellants to pay the amount of penalty to
the claimants, the learned Commissioner has not issued any
notice as mandated under section 4-A of the Employee's
Compensation Act and as such, the order of imposing
penalty is liable to be quashed and set aside. Learned
Counsel submitted that, without there being any sufficient
evidence as about the employee-employer relationship
between deceased Ashrabai and appellant sugar factory and
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as about the income of deceased Ashrabai, the learned
Commissioner has arbitrarily passed an Award fastening the
liability of the huge amount on the appellant sugar factory.
The learned Counsel, therefore, prayed for setting aside the
impugned judgment and Award.
6) Mr. M.S.Karad, the learned Counsel appearing for
claimants supported the impugned judgment and Award.
Learned Counsel submitted that, deceased Ashrabai was
recruited as a labour for sugarcane crop cutting for the
appellant sugar factory for the season 2011-12 by the labour
contractor Viz: Laxman Khandare (respondent No.2 in the
present appeal). Learned Counsel further submitted that,
while the sugarcane was being carried to the sugar factory,
after the same was cut from the field of Kallapa Bhojraj, the
alleged accident happened and Ashrabai suffered the death
because of the injuries caused to her in the said accident.
According to the learned Counsel, thus alleged accident
happened during the course and out of the employment of
the deceased Ashrabai with the appellant sugar factory.
Learned Counsel further submitted that, respondent No.4
Laxman Khandare was the approved labour contractor,
through whom deceased Ashrabai was employed for the
purpose of sugarcane cutting. According to the learned
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Counsel, appellant sugar factory was thus the principal
employer of deceased Ashrabai, and in such circumstances,
was liable to pay the amount of compensation to the legal
representatives of deceased Ashrabai i.e. Claimants.
Learned Counsel further submitted that, the claimants have
satisfactorily proved that deceased Ashrabai was working for
the appellant sugar factory through the labour contractor.
Learned Counsel further submitted that, the wages being
earned by deceased Ashrabai and her age at the time of her
death have also been correctly proved by the claimants.
According to the learned Counsel since the appellant sugar
factory did not deposit the amount of compensation despite
issuance of notice the appellant sugar factor before filing the
claim petition, the learned Commissioner has rightly imposed
the penalty on the appellants. Learned Counsel, therefore,
prayed for dismissal of the appeal.
7) I have carefully considered the submissions
advanced on behalf of the learned Counsel appearing for the
respective parties. I have also perused the impugned
judgment and the evidence, oral as well as documentary
adduced before the learned Commissioner. On perusal of
the evidence on record, apparently there appears no
substance in the argument advanced on behalf of the
3463-15 FA.doc
appellants that, the claimant have not established the
employer-employee relationship between deceased Ashrabai
and appellant sugar factory. In para 18 of the judgment, the
learned Commissioner has elaborately discussed the
evidence on this point. It has come on record that, in the
bullock-cart involved in the alleged accident, the sugarcane
which was cut from the sugarcane field of Kallappa Bhojkar
was loaded. There was a weight slip issued by the appellant
sugar factory in the name of said Kallappa Bhojkar of the
date 15.02.2012. In the said weight slip the name of
claimant No.1 Babasaheb is shown as cart owner cum labour
and the name of Laxman Khandare as Mukadam. Labour
contractor Laxan Khandare has admitted that deceased
Ashrabai was recruited by him for the purpose of cutting of
sugarcane crop for the appellant sugar factory. The
appellant sugar factory has not denied or disputed that,
Laxman was their labour contractor for the season 2011-12
and through him the appellant sugar factor had recruited the
labours for sugarcane cutting. The evidence which has come
on record as above, sufficiently proves that, the appellant
sugar factory was the principal employer of deceased
Ashrabai and that, the alleged accident resulting in her death
occurred during the course and out of her employment with
the appellant sugar factory. I do not find any error in the
3463-15 FA.doc
findings recorded by the learned Commissioner in this
regard.
8) About the income of deceased Ashrabai, original
claimant no.1 in his evidence before the Court has deposed
that, deceased Ashrabai was getting the wages at the rate
Rs.8,000/- per month. Though the appellants disputed the
said income, did not bring on record any evidence to show
the probable income of the labour like deceased Ashrabai. In
para 24 of the judgment, the learned Commissioner has
observed that, though the appellant sugar factory examined
the witness by name Suresh, the said witness in his evidence
before the Court expressed his inability to state even
approximate rates of harvesting and transporting the
sugarcane. The learned Tribunal has further observed that,
the said witness was asked to state at least minimum
charges which were being paid to the labourers lie deceased
Ashrabai, however, the said witness could not even state the
said charges. In absence of any contrary evidence on
record, the Tribunal held the income of deceased Ashrabai
to the tune of Rs.8,000/- per month as per the limit of
monthly income as provided under section 4 of the
Employee's Compensation Act. It does not appear to me
that, the tribunal has committed any error in arriving at the
3463-15 FA.doc
said conclusion.
9) However, there appears substance in the
objection raised by the appellant sugar factory about
imposing of the penalty by the learned Commissioner. Before
imposing penalty amount, the learned Commissioner did not
seem to have issued the notice to the appellant sugar
factory as required under section 4-A of the Employee's
Compensation Act. It was sought to be canvased by the
learned Counsel appearing for the claimants that, before
filing of the claim petition, the claimants have issued notice
to the appellant sugar factory and since the appellant sugar
factory failed in depositing the amount of compensation,
within the stipulated period, was liable for the penalty also.
The argument advanced as such, cannot be accepted.
Issuance of notice before filing of the claim petition is
altogether different. There is a specific provision as regards
the imposition of penalty. Proviso of sub clause (b) of sub
section 3 of Section 4-A provides that, an order for the
payment of penalty shall not be passed under clause (b)
without giving reasonable opportunity to the employer to
show cause why it should not be passed. Admittedly, the
Commissioner has not issued any such notice.
In the circumstances, the impugned order in so far
3463-15 FA.doc
as it relates to imposing of penalty cannot be sustained and
deserves to be quashed and set aside. In the result, the
following order:
ORDER
a) The appeal is partly allowed.
b) The order imposing penalty to the tune of Rs.
3,68,340/- on the appellants is quashed and set aside.
Remaining part of the award shall remain unchanged.
c) Pending Civil Application shall stands disposed of.
( P.R.Bora )
Judge
SPR
