Raj Vidya Kender & Anr vs Mohan Lal Maurya
2014 Latest Caselaw 1175 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No. 355/2013 & CM No. 14254/13 (Stay)

%                                              5th March, 2014

RAJ VIDYA KENDER & ANR                                    ......Appellant
                  Through:               Mr. Samrat Nigam and Ms.
                                         Aishwarya, Advocates.


                          VERSUS

MOHAN LAL MAURYA                                          ...... Respondent

               Through:                  Mr. S.K.Chaubey, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Respondent has been served way back for 11.9.2013. Today we are in

March, 2014 i.e six months after. An adjournment is asked for on behalf of

the respondent for reading the case file. I refuse to grant the same, inasmuch

as, it is necessary that counsel must not seek adjournment only for

convenience on the ground that they are not prepared although they had

sufficient time. This attitude is responsible for unnecessary pendency in

courts. Besides, the facts of this case as stated below will show that the

prayer for adjournment is not benign.

2. This first appeal is filed by the appellant (alleged employer) against

the impugned order of the Commissioner dated 25.7.2013 which has allowed

the claim petition filed by the respondent under the Employee's

Compensation Act, 1923.

3. The case as put up by the respondent was that he was appointed by the

appellant since October, 2004 for doing flour kneading work and on

2.12.2004, at about 9.30 a.m when he was working on an electronic machine

of flour kneading on the directions of Sh. Palaiji Junior of Sh. Prakashnandji,

the respondent met with an accident as his right hand came under the

machine. It is pleaded that respondent would not have worked on the

machine unless there was pressure put by Sh. Palaiji Junior and

Prakashnandji. On account of the accident allegedly arising out of and in the

course of employment the claim petition was filed. I may note that the

period of limitation for filing of a claim petition is two years as per Section

10 of the Act, and since the accident happened on 2.12.2004, the claim

petition had to be filed ordinarily on or before 2.12.2006, but the claim

petition was filed on 5.5.2008 i.e after a delay of over one year and five

months.

4. The Commissioner has allowed the claim petition by holding that

there is a relationship of employer and employee and that the accident took

place on account of the respondent working in the course of his employment.

5. Before me, counsel for the appellant has urged that respondent was

only a Sewak and not an employee, much less a paid employee. Respondent

was specifically directed not to work on any electronic machine without

supervision, but he did so in spite of instructions to the contrary and which

consequently caused him injury. Reliance is placed on behalf of the

appellant/employer which is a nonprofit making society, upon Section 3(1)

proviso (b) (ii) of the Act that where there is a willful disobedience and

thereafter the employee suffers an accident, the employer (assuming the

appellant to be an employer) cannot be held liable. Counsel for the appellant

also argues that the Commissioner has wrongly held that the appellant had

not raised any pleading of respondent having been directed only to work on

an electronic machine with supervision inasmuch as in para 4 of the reply on

merits of the counter-affidavit of the appellant this aspect is specifically

stated and this fact was also categorically proved as per para-9 of the

affidavit filed by the witness of the appellant namely Sh. Vijendra Singh.

Para-4 of the reply on merits and para-9 of the affidavit by way of evidence

filed on behalf of the appellant read as under:-

Para-4 of the Reply

"That the contents of this para are wrong and denied. It is submitted that the petitioner's only aim to stay with the respondent was for free food and accommodation and since he was not showing any interest in performing any duties assigned to him as a sewak, he was kept as a helping man in the kitchen as per this request and was given strict instructions to not operate any machine without anybody supervision. However, the petitioner while fiddling with the flour kneeding machine switched on the motor when no body was around which led to the accident."

Para 9 of the affidavit by way of evidence "That it is reiterated that there was never an employee- employer relationship between the Petitioner and the Respondent. The Petitioner was never appointed as a sweeper by the Respondent. The Petitioner was never paid any salary either as claimed or otherwise. There was no employer- employee relationship between the present parties and the issue of appointment letter does not arise at all. Since the Petitioner was not doing any duties assigned to him diligently, he was assigned the job of a helping hand in the kitchen as per his request. The Respondent did not specifically engage him for flour kneading work as claimed. In fact the Petitioner's only aim to stay with the Respondent was for free food and accommodation and since he was not showing any interest in performing any duties assigned to him as sewak, he was kept as a helping man in the kitchen as per his request and was given strict instructions to not operate any machine without anybody supervision. However, the Petitioner while fiddling with the flour kneading machine switched on the motor when nobody was around which led to the accident."

6. Learned counsel for the appellant argues that there would be grave

injustice upon the appellant which is a non-profit making society if the

illegal actions of the respondent in seeking unjustified compensation under

the Act are permitted to cause huge monetary loss to the appellant of a sum

of Rs.2,40,527/- alongwith interest at 12% per annum simple from 1.1.2005.

7. It is also argued on behalf of the appellant that no doubt provision for

condonation of delay should be read liberally, however, the sufficient cause

which is given has to be carefully examined once there is a delay not only of

few days or few weeks or few months but delay is of as many as two years

and five months, otherwise the whole purpose of providing a limitation

period will be lost and vested rights which are acquired on expiry of

limitation will be lost.

8. In my opinion, the contentions as raised on behalf of the appellant

have merit and need to be accepted. Firstly, the Commissioner was wholly

unjustified in holding that the appellant had raised no pleading of the

respondent having been directed not to work without supervision on an

electronic machine. The relevant para of the pleading of the appellant before

the Commissioner as also the relevant para of the affidavit by way of

evidence have already been reproduced by me above. There is no reason for

me to disbelieve this stand of the appellant inasmuch as the prior paras of the

pleadings show that the appellant had found that the respondent herein was

neither willing to learn any work nor he was showing any interest but was

very casual in his approach. The respondent was allowed to stay with the

appellant as a sewak only because of his circumstances that he was a family

man and was being trained. Appellant has specifically pleaded the

casualness with which the respondent used to do work, and which aspect is

reiterated in the affidavit by way of evidence filed on behalf of the appellant

by Sh. Vijendra Singh.

9. Accordingly, once the respondent has worked in spite of specific

instructions to the contrary, hence in terms of Section 3(1) proviso (b) (ii) of

the Act only he is solely responsible for his illegal conduct, and the

appellant-non profit making society cannot be burdened with liability of lacs

of rupees.

10. I also hold that the Commissioner has erred in holding that there is a

relationship of employer and employee, inasmuch as, the appellant has

specifically pleaded that at no point of time respondent was ever employed

and never any payment of any nature whatsoever was made to the

respondent because the respondent was only a sewak and he was taken in the

Ashram for giving him training and in fact free boarding and lodging was

also provided. I agree with this contention of the appellant that there was no

relationship of employer and employee because respondent has failed to

prove that any payment whatsoever in the nature of salary or that any other

payment was made by the respondent to the appellant.

11. Also, in my opinion, there was no ground of condonation of delay of

a long period of one year and five months in filing of the claim petition

because if the case of the respondent was that because of illiteracy and

poverty he could not approach the Commissioner in time, this was a ground

which was available within even two years of limitation for filing of the

claim petition. No facts have been pleaded and proved to show as to efforts

made by the respondent within the period of two years or immediately and

thereafter for availing of legal process and that he could not do so only on

account of his illiteracy and poverty. Therefore, a self serving statement of

illiteracy and poverty cannot help the respondent to get a delay of over one

year and five months condoned in the facts of the present case because

circumstances before two years and after two years remain the same without

any change and no specific endeavours of seeking benefit of judicial

process/legal process was pleaded and proved by the respondent as not being

available within two years.

12. In view of the above, the appeal is allowed, and the impugned order of

the Commissioner dated 25.7.2013 is set aside. Parties are left to bear their

own costs.

13. The amount which is deposited by the appellant before the

Commissioner be released to the appellant alongwith accrued interest

thereon if any and which be done by the Commissioner within a period of

four weeks from receipt of a copy of this judgment.

MARCH 05, 2014                              VALMIKI J. MEHTA, J.
ib