Ramesh Dajibhaji Patil (Zoting) ... vs Smt Leela Udebhan Atram & 3 Others
2017 Latest Caselaw 7785 Bom

FA  590/04                                              1                            Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                          FIRST APPEAL NO. 590/2004

Ramesh S/o Dajibaji Patil (Zoting),
Aged about 53 years, Occ: Agriculturist and
Landlord, R/o Khadki (Vasi), Post Wadki,
Tq. Ralegaon, District - Yavatmal.                                                APPELLANT

                                      .....VERSUS.....

1.    Smt.Leela Wd/o Udebhan Atram,
      Aged about 46 years, Occ: Household work.
2.    Vilas S/o Udebhan Atram,
      Aged about 20 years, Occ: Nil.
3.    Dilip S/o Udebhan Atram,
      Aged about 18 years, Occ: Nil.

4.    Suresh S/o Udebhan Atram,
      Aged about 16 years (Minor),
      Through natural guardian mother i.e. 
      Smt.Leela Wd/o Udebhan Atram,
      All R/o Chennai, Post Karanji,
      Tq. Kelapur, District Yavatmal.                                               RESPONDE
                                                                                             NTS

                    Shri Vikram Marpakwar, counsel for the appellant.
                                None for the respondents.


                                              CORAM    :         S.B. SHUKRE,  J.

DATE : 4 TH OCTOBER, 2017.

ORAL JUDGMENT

This is an appeal preferred against the judgment and order

dated 05.07.2004 rendered by Commissioner under Workmen's

Compensation Act, 1923 (now Employees Compensation Act) (hereinafter

referred to as 'the EC Act' for the sake of brevity), thereby granting

compensation of Rs.64,445/- together with interest at the rate of 6% per

annum and penalty of Rs.32,222/- to the respondents.

FA 590/04 2 Judgment

2. This appeal came to be admitted by this Court on 24.08.2005.

But, at that time, no substantial question of law was framed. Therefore,

now, it has fallen upon the shoulders of this Court to frame a substantial

question of law on which this appeal would have to be, and in fact, has

been heard. The substantial questions of law are as under:

i) Whether the findings recorded by the trial Court

that deceased Udebhan was a workman; that the accident

occurred in the course and out of employment; and that the

applicants (respondents herein) being dependents upon

deceased Udebhan, were entitled to receive compensation,

were perverse as being not based upon the evidence available

on record?

ii) Whether the trial Court was justified in imposing

penalty for non-payment of the compensation under Section

4A(3)(b) of the EC Act?

3. Shri Marpakwar, the learned counsel for the appellant, has

submitted that the trial Court has not considered the evidence of the

appellant, DW1-Ramesh and has recorded its findings by taking a one-

sided view of the whole matter. He submits that in addition to the

admissions given by the witnesses of the respondents that there was no

electric motor pump installed on the nullah in the field at village Chanai;

that no documents were filed by the original applicants, i.e. respondents

FA 590/04 3 Judgment

herein, to prove the averment that the appellant owned the agricultural

land at Chanai; there was a positive evidence led by the appellant to

establish the fact that the appellant did not own any agricultural land at

village Chanai. He submits that effect of the admissions and the direct

evidence given by the appellant has not been considered by the trial Court

and the result is of recording of perverse findings on the question of the

deceased being a workman, existence of relationship of employer -

employee between the appellant and the deceased and entitlement of the

respondents to receive compensation. In support of his submissions,

learned counsel has taken me through the evidence adduced by both

sides.

4. Learned counsel for the appellant further submits that no

reasonable opportunity of being heard was granted to the appellant

before the trial Court imposed penalty for the alleged non-payment of

compensation to the respondents. He submits that Section 4A(3)(b) lays

down a detailed procedure to be mandatorily followed before the power

of imposition of penalty is exercised by the Labour Court. This procedure,

in the instant case, has not been followed. He submits that the finding

recorded by the trial Court regarding imposition of penalty is thoroughly

vitiated.

FA 590/04 4 Judgment

5. The respondents-original applicants are absent throughout.

Nobody has appeared on their behalf. This appeal is pending since the

year 2004 and already overripe for final disposal. Accordingly, the appeal

is being disposed of on merits after hearing learned counsel for the

appellant and considering the evidence available on record.

6. It is seen from the impugned judgment and order that the

trial Court has discussed in detail the evidence of the respondents and as

rightly submitted by learned counsel for the appellant, has dismissed the

evidence of the side of the appellant in only a few lines as not inspiring

confidence but, I find that such failure to discuss line by line or word by

word evidence of the side of the appellant has not resulted in commission

of any perversity by the trial Court in the present case.

7. The reasons for coming to the above conclusion are to be seen

in the evidence of the respondents as well as the appellant. PW1-Leela

(respondent no.1), is the widow of deceased Udebhan. She has stated

quite in details regarding her husband being employed by the appellant

on monthly wages of Rs.600/- and some grains. She has also stated that

her husband along with his family members was residing in an outhouse

of the appellant. In her application filed under Section 4 of the EC Act,

PW1-Leela has stated that her husband was engaged as a labourer on the

FA 590/04 5 Judgment

agricultural field of the appellant on the wages of Rs.6,000/- per annum.

Learned counsel for the appellant submits that there is a contradiction in

what is pleaded by the respondent no.1 and what is stated on oath before

the Court in respect of the quantum of wages. I do not think that the

deposing the fact that deceased Udebhan was working as a labourer with

the appellant on monthly wages of Rs.600/- can be considered as

contradicting materially the pleading in the application of the

respondents. This is, at the most, could be seen as a variation in the

quantum of wages made while deposing before the Court, and nothing

more. Contradiction is something which directly stands in

contradistinction to a fact stated earlier. Here, the witness does not say

that her husband was not engaged as a labourer nor does she say that he

did not receive any wages from his employer. Just as in the application,

PW1-Leela has stated before the Court as well that her husband was

working as a labourer with the appellant and was receiving wages. The

only difference between her present statement before the Court and

previous statement made in the application is about the quantum of

wages, and nothing more. That is the reason I would treat such

difference as only amounting to variation occurred while deposing in the

Court and as such it does not amount to contradiction as contemplated

under the law. This variation, too, can be due to the level of illiteracy of

PW1-Leela. There is no dispute about the fact that she is an illiterate lady

FA 590/04 6 Judgment

having no knowledge about the Court procedure. Therefore, such

variations, whenever they occur in the evidence of such witnesses, are

required to be ignored, which I do so. In the cross-examination taken on

behalf of the appellant, I find that except for a few suggestions of denial,

nothing significant has appeared and, therefore, it can be said that

evidence of PW1-Leela inspires confidence and can be relied safely.

8. PW2-Atmaram is an independent witness and he says that

when he was passing through the road, he saw one person as crying and

in a state of distress due to snake bite. He has further stated that on

enquiry, that person revealed his name to be Udebhan Atram and further

told him that he fell down in the field of the appellant. The cross-

examination of this witness taken on behalf of the appellant has also gone

on similar lines as the cross-examination of PW1-Leela and therefore, I

would say, the evidence of even this witness can be treated as

trustworthy, which I do so.

9. The appellant examined himself as DW1. In his evidence, he

particularly stated that he did not own any agricultural land at village

Chanai. In the cross-examination of this witness, nothing has appeared so

as to say that this witness must be deposing in a false manner. But then,

the question would arise as to who is to be believed in between PW1-

FA 590/04 7 Judgment

Leela, who has stated that the appellant owns an agricultural land at

village Chanai and DW1-Ramesh, who has claimed that he does not own

any such agricultural land at village Chanai. There is a word against

word and, therefore, in order to resolve the dispute, this Court would be

required to consider the other facts and circumstances available on

record. Admittedly, the respondents did not produce any documentary

evidence regarding ownership of agricultural land by the appellant at

village Chanai. Considering the status and economic condition of the

respondents, it was also not expected of them to produce such evidence.

Their failure to produce documentary evidence in this regard, therefore

could not be seen as running adverse to the interest of the respondents, as

long as the issue cannot be resolved by considering the other evidence

available on record. In the present case, a perusal of other evidence

shows that this issue can indeed be resolved. So, let us now turn to the

other evidence available on record.

10. The cross-examination of PW1-Leela taken by the appellant

clearly shows that a question regarding ownership of agricultural land at

Chanai was put to this witness and the answer that was elicited was in the

positive. In other words, this answer has gone against the appellant and

it shows that the appellant owns dry crop land at village Chanai. Same is

true about PW2-Atmaram. In his cross-examination taken by the

FA 590/04 8 Judgment

appellant, a similar question was put to him and it was answered by this

witness in terms that the appellant owned a field property at Chanai.

When such questions are put to the witness of the rival party, there is

always a risk involved. If answers to such questions are given as in the

negative, they would serve the interest of the cross-examiner but, if the

answers are in the positive, they would certainly turn the tables on the

cross-examiner. In the present case, the answers as stated earlier, have

gone against the cross-examiner, i.e. the appellant, and they establish as a

reasonable probability that the appellant indeed owned agricultural land

at village Chanai at the time of the accident. Even the evidence of second

witness of the appellant, DW2-Prakash, Talathi of village Chanai, shows

that parents of appellant owned agricultural field at village Chanai in the

year 1996-97. In addition to such evidence, there are also other

circumstances which probabilize the case of the respondents. These

circumstances relate to the appellant admitting deceased Udebhan to

hospital, the appellant identifying the dead body of deceased Udebhan

and deceased Udebhan and his family members residing in the outhouse

to the house of the appellant. If deceased Udebhan and his family

members resided in the outhouse to the house of the appellant, the

appellant owed an explanation to the Court as to in what capacity,

deceased Udebhan was allowed to use the outhouse. If the appellant had

admitted deceased Udebhan to hospital then also, the appellant was

FA 590/04 9 Judgment

required to explain as to what was the reason for his admitting

deceased Udebhan to hospital. The appellant, however, has not given

any explanation in this regard, rather, has maintained complete silence

about them. This silence, I would say, would speak against him and

would indicate that he allowed deceased Udebhan and his family

members to occupy the outhouse and also admitted deceased Udebhan

to hospital only because there was some sort of relationship between

him and deceased Udebhan, which went beyond exhibition of normal

human touch and it must have been in the nature of employer -

employee relationship. When this inference is considered together

with the admissions given by PW1-Leela, PW2-Atmaram and DW2-

Prakash, the cumulative effect would be that they only probabilize with

high degree the case of the respondents that there was in existence of

employer - employee relationship between the appellant and the

deceased.

11. As regards the deceased being the workman, I do not think

that any further discussion would be necessary after having considered

the reasons given by the trial Court in recording a finding in this regard.

These reasons appear in paragraph 14 of the impugned judgment and

order.

FA 590/04 10 Judgment

12. The discussion of the evidence of both the sides made thus far

would show that the trial Court has reached correct conclusions in the

matter and these conclusions are based upon the evidence available on

record. It may be that some deficiencies are there while discussing the

evidence of both sides but, the deficiency has not affected the final

conclusions in the matter. Therefore, I find that no perversity is

committed by the trial Court in recording its findings on the questions

stated earlier. The first substantial question of law is, therefore, answered

in the negative.

13. As regards the imposition of penalty, I find that proper

procedure has not been followed by the trial Court. Nothing has been

stated in the impugned judgment and order regarding giving of an

opportunity to the appellant to explain the delay occurred in payment of

compensation. It appears that the trial Court has been swayed away by a

singular default on the part of the appellant in failing to give reply to the

notice received by him by which compensation was demanded by the

respondents from him. This could not have been the ground for reaching

a conclusion that there is no justification for the delay in making payment

of the compensation. Proviso to Section 4A(3)(b) clearly shows that no

order for the payment of penalty can be passed without giving a

reasonable opportunity to the employer to show cause as to why it should

FA 590/04 11 Judgment

not be passed. This reasonable opportunity must be given during the

course of hearing of the application filed under Section 4 of the EC Act.

Since such an opportunity has not been given to the appellant, the finding

regarding imposition of the penalty would have to be said as vitiated and

as such would have to be quashed and set aside and the matter would

have to be remitted back to the trial Court for a decision afresh on this

limited aspect of the case. Second substantial question of law is,

therefore, answered as in the negative.

14. In the result, the appeal is partly allowed. The impugned

judgment and order to the extent they impose penalty upon the appellant

under Section 4A(3)(b) of the EC Act are quashed and set aside. The

matter is remanded back to the trial Court for a decision afresh on the

limited question of imposition of penalty under Section 4A(3)(b) of the

EC Act after giving a reasonable opportunity of hearing to both sides. The

parties shall appear before the trial Court on 30.10.2017. Hearing shall

be granted to both sides and decision shall be rendered afresh in

accordance with law on the aforestated limited question within a period

of two months from the date of appearance of the parties before the trial

Court. The parties to bear their own costs.

The first appeal stands disposed of accordingly.

JUDGE APTE