Murari vs Shankar Lal And Sh. Suresh ...
2014 Latest Caselaw 5751 Del

$~6
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO 195/2013
                                     Decided on 12th November, 2014

      MURARI                                         ..... Appellant
                        Through      : Mr. D.K. Pandey, Adv.

                        versus

      SHANKAR LAL AND
      SH. SURESH BHARADWAJ (PROP./PARTNER) ..... Respondent

                        Through      : Mr. Awadhesh Kumar, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1.    Arguments heard. Trial court record perused.
2.    Appellant filed a petition under Section 10 of the Workmen's

Compensation Act, 1923 ("the Act", for short) before the Commissioner,

seeking compensation from the respondent in respect of the permanent

disability suffered by him in his eye on account of the alleged injuries

suffered at the work place in an accident. The claim petition has been

dismissed by the Commissioner by the order impugned in this appeal.




FAO 195/2013                                                   Page 1 of 6
 3.     Appellant alleged that he was employed with the respondent as a

Karigar with effect from 2009 on a monthly wages of `6,500/-. Appellant

was not provided various legal facilities, such as, appointment letter, leave

encashment, ESI etc. Respondent was not even maintaining service record

of the appellant.    The machine, on which appellant used to work, was

defective.     Despite complaints of the appellant, machine was not got

repaired by the respondent. On 21st November, 2009 appellant was working

on the said machine when at about 12:30 pm some splinters flew from the

machine and fell in the left eye of appellant, resulting in grievous injuries to

him.   Appellant was treated at Dr. D.R. Maternity and Nursing Home,

Ashok Vihar, Delhi. However, he lost 100% vision in his left eye resulting

in permanent disability to him. At the time of accident, appellant was 36

years of age. Accordingly, appellant claimed `6,00,000/- as compensation.


4.     Respondent denied that appellant was its employee. A categorical

stand was taken that appellant was not the employee of respondent. It was

denied that appellant had been working with the respondent from 2009

onwards on the monthly wages of `6,500/-. It was denied that appellant was

working on the machine on 21st November, 2009 and sustained injuries in




FAO 195/2013                                                      Page 2 of 6
 his left eye, resulting in 100% loss of vision in one eye. Respondent alleged

that appellant was not entitled to any compensation.


5.    In the rejoinder, appellant denied the averments made in the reply and

reiterated what was stated in the claim petition. Disability Certificate was

filed, according to which appellant had sustained 30% visual disability.


6.    Following issues were framed by the Commissioner on 18 th May,

2011:-


               (i)      Whether there exist employee - employer
               relationship between the claimant and management,
               if so?

               (ii)     Whether claimant sustained injuries during
               and out of the course of employment? If so, to
               what amount of injury compensation claimant is
               entitle to and what directions are necessary in this
               respect?

               (iii)    Relief if any?




7.    Parties were afforded opportunity to lead evidence. Upon scrutiny of

evidence adduced by the parties, Commissioner has returned a categorical

finding that appellant was not the employee of respondent.       It is held that

FAO 195/2013                                                     Page 3 of 6
 appellant had failed to place on record and prove any documentary evidence

to indicate that he was employed with the respondent as a Karigar on the

monthly wages of `6,500/-. Bald statement of appellant was not sufficient

to   prove     employer-employee     relationship   between     the    parties.

Commissioner has further noted that appellant was not taken to Dr. D.R.

Maternity and Nursing Home, Ashok Vihar, Delhi by any of his fellow

colleague. Commissioner has concluded that since appellant was not the

employee of respondent, question of happening of the alleged accident did

not arise. It appears that appellant filed an appointment letter Ex. CW1/11 at

the evidence, which has been disbelieved by the Commissioner. It is held

that same was a fabricated document. The said appointment letter was not

addressed to the appellant, inasmuch as was addressed to one M/s. Steel

Works. Commissioner has held that in the claim petition as well as in the

complaint made to Assistant Labour Commissioner and demand notice and

affidavit of evidence appellant had categorically stated that the appointment

letter was never issued. Thus, Ex.CW1/11, which surfaced much later was

suspicious.


8.    Section 30 of the Act provides that an appeal can be entertained only

if a substantial question of law is involved in the appeal. In this case, no


FAO 195/2013                                                    Page 4 of 6
 such substantial question of law could be raised. Findings of facts recorded

by the Commissioner on the issue of employer - employee relationship

cannot be assailed on merits. This court cannot sift and weigh the evidence

adduced before the Commissioner in detail on the findings of facts on this

point and substitute its own finding.


9.    Be that as it may, admittedly no documentary evidence was led before

the Commissioner by the appellant to show that he was employed by the

respondent. Appellant has failed to produce any documents, such as, salary

slip, identity card, gate pass etc. No salary slip was placed on record. No

appointment letter was annexed with the statement of claim.           Alleged

appointment letter, produced at the evidence stage, appears to be a fabricated

document, more so, when a categorical statement was made in the statement

of claim that respondent was not providing various legal facilities such as

appointment letter, leave encashment, ESI etc. Even in the complaint made

to Assistant Labour Commissioner and the demand notice, it was alleged

that no appointment letter was issued. If that is so, then how Ex.CW1/11

surfaced at the evidence stage, has remained unexplained. It may further be

noted that appellant had also raised an industrial dispute before the Labour

Court - IX, Karkardooma Courts, Delhi being ID No. 447/11, wherein


FAO 195/2013                                                    Page 5 of 6
 Award has been passed on 9th January, 2013. Labour Court has held that

appellant had failed to prove that he had ever been an employee of

management (respondent) or his services were terminated by the

management illegally.


10. For the foregoing reasons, appeal is dismissed.




                                                      A.K. PATHAK, J.

NOVEMBER 12, 2014 rb