Delhi High Court
Mohd. Zulfikar Ali vs Commissioner Under The Employees ... on 9 May, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 36/2011
% 9th May, 2014
MOHD. ZULFIKAR ALI ......Appellant
Through: Mr. B.K.Pal, Adv.
VERSUS
COMMISSIONER UNDER THE EMPLOYEES COMPENSATION ACT
& ORS. ..... Respondents
Through: Mr. Amit Seth, Adv. for R-2.
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 (in short 'the Act') impugning the judgment of the
Commissioner dated 9.8.2010 which has dismissed the claim petition filed
by the appellant/applicant. Claim petition has been dismissed on two
grounds. First is that the appellant was not a regular employee but the
employment was of a casual nature, and such a person is not included in the
definition of the expression 'workman' as found in Section 2(n) of the Act as
it existed on the date of the accident on 19.5.1997. The second ground for
dismissal of the petition is that Section 10 of the Act provides for a
FAO 36/2011 Page 1 of 5
limitation period of two years for filing of the claim petition, whereas in the
present case, claim petition was filed after about four years and two months,
and that too without filing of application seeking condonation of delay, and
in any case there are no sufficient reasons found on record to condone the
delay.
2. So far as the first aspect that a person performing work of a casual
nature is not a workman under the Act is concerned, reference can be drawn
from the definition of 'workman' as then existing in Section 2(n) of the Act
and the relevant portion of which reads as under:-
"2(n) "workman" means any person (other than a person whose
employment is of a casual nature and who is employed
otherwise than the purposes of the employer's trade or
business)...."
3. The onus of proof was upon the appellant/applicant to prove that he
was a regular employee and not an employee doing work of casual nature.
The respondent in this case is M/s Hamdard Laboratories and which is a
large organization, and in case the appellant/applicant was the regular
employee, he would definitely have been shown to be a regular employee in
the records of the respondent, but the appellant/applicant did not summon
any records from the respondent inasmuch as, the applicant/appellant would
be well aware that in the records he would not be shown to be a regular
FAO 36/2011 Page 2 of 5
employee. Another method of showing a regular employment would be if
monthly payment is made showing the regular nature of employment, but
the appellant/applicant again has not filed any document to show that he was
receiving monthly payment and therefore a regular employee. If the
appellant was getting a monthly payment, he could well have summoned the
vouchers and other documents/records of the respondent, but the appellant
did not do so, and which must be because he knew he was not a regular
employee and was only a casual employee. Under Section 30 of the Act, an
appeal can be entertained only if there is a substantial question of law and
once appellant/applicant has failed to lead evidence to show that he is in
regular employment, no substantial question of law arises so far as the first
aspect is concerned for this appeal to be entertained.
4. So far as the second aspect of the petition being time barred is
concerned, indubitably the petition is time barred because the accident took
place on 19.5.1997 and the petition was filed on 9.8.2001. As per Section
10(1) of the Act, period of limitation is two years from the date of the
accident for filing of the claim petition and in this case it is seen that the
claim petition has been filed after about four years and two months of the
accident. Appellant/applicant therefore had to apply for condonation of
FAO 36/2011 Page 3 of 5
delay and give sufficient reasons for seeking condonation of delay, but
neither such an application was filed and nor any sufficient reasons exists on
record for condonation of delay. Accordingly, so far as this second aspect of
the claim petition being barred by limitation is concerned, again no
substantial question of law arises under Section 30 of the Act.
5. Counsel for the appellant sought to argue that once the appellant filed
an affidavit stating that his employment was not casual, appellant should be
held to have discharge the onus of proof. I cannot agree inasmuch as,
discharge of onus of proof depends upon the facts of each case and where
the employer is a large organization which would have employment records,
it was for the appellant to summon the records from the respondent instead
of filing a self serving affidavit of evidence, which obviously was false and
hence disbelieved by the Commissioner. Also, if the appellant was a regular
employee of large organization such as respondent/Hamdard Laboratories,
then it is doubtful as to if the appellant would have been made payment in
cash as is argued before this Court. Even if, payment was made in cash,
then every month vouchers would have been prepared and would exist in the
record of the respondent alongwith the relevant ledgers to show the regular
employment of the appellant, but the appellant who could always have
FAO 36/2011 Page 4 of 5
summoned this record failed to do so, and which can only be for the reason
that appellant all along knew that he was not in regular employment.
6. In view of the above, there is no merit in the appeal, and the
same is therefore dismissed, leaving the parties to bear their own costs.
MAY 09, 2014 VALMIKI J. MEHTA, J.
ib
