Delhi High Court
Lady Harding Medical College & ... vs Shri Rakesh Kumar on 4 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 498/2011
% 4th February, 2014
LADY HARDING MEDICAL COLLEGE & SMT.
SUCHETA KRIPLANI HOSPITAL ......Appellant
Through: Mr. R.V. Sinha, Mr. A.S. Singh,
Advocates
VERSUS
SHRI RAKESH KUMAR ...... Respondent
Through: Mr. Sanjiv Sharma, Advocate for
respondent no. 1 with respondent no. 1 in
person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 30 of the Employee's
Compensation Act, 1923, impugning the judgment of the Commissioner
dated 18.4.2011 which has allowed the compensation claim filed by the
respondent herein.
2. The facts of the case are that respondent was admittedly a
temporary status employee of the appellant when on 5.4.2004 while
working on shredder machine he got injured and four fingers of his left
hand were cut down resulting in permanent partial disablement. The
respondent accordingly filed the claim petition before the
Commissioner.
3. Before the Commissioner, the main contention of the appellant
was that the respondent was unauthorizedly working on the shredder
machine although he was not authorized to do so, and therefore, on
account of his own fault he got injured.
4. The Commissioner has dealt with this argument in terms of the
following conclusions:
"Evidence by way of affidavit on behalf of Respondent has
been filed by Sh. Prem Chand, Administrative Officer of
the respondent stating the same as what has been
representative of the claimant wherein he has stated that
they do not have any post of sadder machine operator and
the operation of the sadder machine is under the supervisor
but the supervisor does not operate the sadder machine and
the job of operating sadder machine is assigned by the
supervisor attached to the labour cell and at the time of
accident for which the application has been filed one Sh.
Dinesh Kumar was working as supervisor of labour cell.
Sh. Dinesh Kumar was summoned on request of the
claimant and his statement was recorded on 3-6-08
wherein he has stated that he came to know about the
accident on the same day at 11.30 AM but the claimant
was not working under the supervision as he was working
on the incinerator plant as his basic duty was to operate
incinerator machine. Sh. Dinesh Kumar has also stated
that the claimant was on duty on the date of accident in
sadder machine which is about 40 to 50 meters away from
the incinerator machine. The sadder machine was not
under my control and as such I have no personal
knowledge about the incident.
The statement of Shri R.P. Koiree, Labour Supervisor has
also been recorded wherein he has stated that the claimant
Sh. Rakesh was present on the date of accident and the
accident took in the hospital as he was deputed/sent for
duty in Gas Plant to work on Cylinder Machine. Sh.
Koiree further confirmed that the casual/safai karamchari
on requirement are also required to work/operate the
sadder machine and after the accident he reported the
matter to the welfare department and principal. As stated
by Shri Prem Chand, there is the post of sadder machine
operator in the hospital whereas as per the statement of Sh.
R.R. Koiree the helper/safai karamchari are deputed to
work on Gas Plant/Sadder Machine etc. as the nature of
work for S. Karamchari/Helper is not limited to the extent
of their designation but most of the time the area of their
work is extended by asking them to do certain work which
are not assigned always by written order. Thus taking into
consideration of the statement of Shri Prem Chand, Sh.
Dinesh Kumar and Sh. R.P. Koiree it reveals that Shri
Rakesh Kumar the claimant was working on the sadder
machine at the time of accident on the instruction of
management, Personnel. Therefore, it is held that claimant
sustained injury out of and during the course of
employment and is entitled for injury compensation."
(underlining added)
5. A reading of the aforesaid conclusions arrived at by the
Commissioner shows that the respondent was working on the shredder
machine as per the direction of the Supervisor of the appellant and
which has been confirmed by the witness Sh. R.P. Koiree, Labour
Supervisor and the respondent's presence at the shredder machine has
also been confirmed by Sh. Dinesh Kumar, who was working as a
Supervisor in the Labour Cell of the appellant, and who saw the
respondent working on the shredder machine.
6. Therefore, I do not find any reason to disagree with the
Commissioner by holding otherwise that the respondent was only a
casual employee and was not asked to work at the shredder machine. I
may state that I find this defence of the appellant as very unfair because
it is well known that a casual employee cannot refuse to work at any
place on being asked by the employer and hence when he was asked to
work on the shredder machine where he got injured and four fingers of
his left hand were cut down resulting in permanent partial disablement,
then a Government body like the appellant ought not to have objected to
the claim petition much less filed this appeal against the impugned
judgment on the specious ground that workman was allegedly working
on his own at the shredder machine.
Learned counsel for the appellant sought to argue that as per Rule
37 of the Rules under the Act, the witness Sh. Dinesh Kumar could not
have been summoned if the case was completed, however, this argument
urged on behalf of the appellant is misconceived because the Supreme
Court has now held that the strict provisions of the Evidence Act and the
CPC do not apply to proceedings before the Commissioner under the
Employee's Compensation Act. Also, in my opinion, even if the
provisions of CPC apply yet there are always ample powers in Courts in
order to do substantial justice to call witness in case there is ambiguity in
the evidence which is led. In fact this power is extended even to
Appellate Court under Order 41(27) CPC.
7. In view of the above, the Commissioner has rightly held that the
respondent was an employee covered under the Employee's
Compensation Act and that he suffered an accident on 5.4.2004 at the
shredder machine on which he was asked to work. There is no
substantial question of law which arises in this case to entertain the
appeal under Section 30 of the Employee's Compensation Act, 1923.
8. The appeal is, therefore, dismissed with costs of Rs. 15,000/-
which shall be paid within a period of six weeks. Since the appeal is
dismissed whatever amount is lying before the Commissioner, in terms
of impugned judgment, can be released to the respondent along with
accrued interest and which be done within four weeks of receipt of this
judgment.
FEBRUARY 04, 2014 VALMIKI J. MEHTA, J
godara
