Delhi High Court
Sh. Raj Kumar vs Govt. Of Nct Of Delhi And Anr. on 20 December, 2023
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 7th December, 2023
Pronounced on : 20th December, 2023
+ W.P.(C) 5099/2019 & CM APPL. 22580/2019
SH. RAJ KUMAR .....Petitioner
Through: Ms. Preeti Singh, Adv.
Mr. Sunklan Porwal, Adv.
Ms. Saumya Dwivedi, Adv.
Mr. Rishabh Munjal, Adv.
versus
GOVT. OF NCT OF DELHI AND ANR. .....Respondents
Through: Mr. Rishikesh Kumar, ASC-
GNCTD
with Ms. Sheenu Priya, Mr. Sudhir
Kumar Shukla, Mr. Muhammad
Zaid,
Ms. Roshini Haldhar & Mr. Sudhir,
Advocates
Mr. R.K. Nain, and Mr. Chandan
Prajapati, Advs. for R-3 to R-7.
SI Sachin, PS Gandhi Nagar.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. This petition has been filed seeking stay on operation of the
impugned recovery notice dated 2 nd August, 2013 issued by respondent
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no.1 (Commissioner, Employees' Compensation Act, 1932) initiating
proceedings for recovery of Rs.7,88,240/- from the petitioner herein. The
said recovery notice was issued pursuant to an order dated 14 th June, 2013
awarding respondent nos. 3 to 7 ("claimants") a sum of Rs.7,88,240/- as
compensation along with interest at the rate of 12% per annum from 10 th
August, 2008 till its realisation. Since the said amount was to be paid by
M/s. Patliputra Transport Agency (respondent no.8), through its owner (the
petitioner) recovery proceedings were initiated for the said amount against
the petitioner by way of the impugned notice.
2. Genesis of the matter is an application for compensation under
Section 22 of the Employees' Compensation Act, 1923 ("the Act")
preferred by the claimants (being the legal heirs of deceased Mr. Akbar Ali
- namely Ms. Razia Begum, wife of the deceased and their minor children).
As per the claimants, Mr. Akbar Ali was employed as a loader for loading
and unloading on the vehicle owned by M/s. Patliputra Transport Agency
(through Mr. Raj Kumar, the owner) arrayed as respondent no.8. On 11th
August, 2008, deceased was injured in an accident during the course of
employment, when he was mowed down by a vehicle. He was moved to
Guru Teg Bahadur hospital by a PCR but succumbed to the injuries
sustained by the time he reached there. Post mortem was conducted, dead
body was handed over to the relatives of the deceased, and a First
Information Report ("FIR") No.194/2008 was registered on 12 th August,
2008 at Police Station Gandhi Nagar, Delhi. At the time of death, the
deceased was 30 years of age and drawing wages of Rs.6,500/- per month
along with allowances.
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3. As per the final report under Section 173, Code of Criminal
Procedure, 1973 ("Cr.P.C.") filed by the Investigating Officer, the
offending vehicle remained untraced and therefore, no compensation could
be recovered either from its owner or driver of the insurance company.
Accordingly, notice dated 13 th February, 2013 was issued by the
Commissioner under the Act ("Commissioner") to respondent no. 8 'M/s.
Patliputra Transport Agency) through Mr. Raj Kumar (owner)' with a
direction to appear and reply to the claim application of the claimants.
Summons were issued from time to time, however, the same were not
received/accepted by the petitioner herein. As such, the Commissioner was
left with no option but to proceed ex-parte.
4. The said application was disposed of by order dated 14 th June, 2013
by the Commissioner. Based on the statement of the claimants supported
by copy of FIR, naksha mauka, final report, post mortem report, medical
documents, progress report, identification card, and ration card, the
Commissioner concluded that the deceased Mr. Akbar Ali had sustained
fatal injuries on 11th August, 2008 during the course of his employment and
therefore, was entitled to death compensation. Wages of the deceased were
taken as Rs.4,000/- per month in view of the restriction in Section 4 of the
Act. The age of the deceased was 30 years at the time of the accident
however, in the absence of supporting documents, it was taken as 35 years
on the basis of the post mortem report. Compensation was therefore
calculated with the relevant factor of 197.06 multiplied with Rs.4,000/- per
month, totaling to Rs.7,88,240/- on which interest at the rate of 12 % per
annum, as per Section 4A of the Act, from the date of accident was
awarded.
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5. Two additional developments during the proceedings before this
Court, need to be mentioned.
First, considering the petitioner's contention that he was merely an
employee of M/s. Patliputra Transport Agency, time was accorded to him
to place on record some document in support of this contention. However,
nothing was filed in support of this contention as recorded in order dated
28th November, 2023.
Second, reliance was placed on the Lower Court Record and the
documents filed by the Investigating Authority, i.e., the police for
ascertaining employment status of the deceased, considering there was
confusion as to whether he was employed with the petitioner or not.
Directions had been given to the Additional Standing Counsel appearing
on behalf of the Government of State of NCT of Delhi ("ASC") to file a
detailed analysis of the relevant documents in this regard. An analysis
report was filed by the ASC on 4 th December, 2023. As per the said
analysis, the following points were relevant:
i. The petitioner had recorded a statement under Section 161,
Cr.P.C. on 12 th August, 2008;
ii. The petitioner had stated that he was the owner of M/s. B R
Parcel Movers and the deceased used to work in his company;
iii. The deceased was working with the agency of the petitioner
was also corroborated by the statement of co-workers (one
Shankar and Surender) recorded under section 161 Cr.P.C.;
iv. Dead body identification and hand-over statement of the
brother of the deceased (Asgar Ali) and son of the deceased
(Bajid) was signed by the petitioner as witness.
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v. The accident took place during the course of the employment
also finds mention in the statements of the colleagues of the
deceased viz Shankar and Surender Kumar, who were also
employed along with the deceased, with the petitioner.
Submissions on behalf of the Petitioner
6. Counsel for the petitioner assailed the impugned recovery notice
which was issued to the petitioner and was duly received on 26th April,
2019, inter alia, on the following grounds:
a. The recovery notice was actually issued to 'M/s. Patliputra
Transport Agency, Through Sh. Raj Kumar Owner'. Thus, the
name of the petitioner was vaguely mentioned as 'owner',
without any particulars such as residential address, etc.
b. He was neither the respondent in the claim petition nor was
the owner of the said company. The petitioner was merely an
employee of M/s. Patliputra Transport Agency from June,
2012 to December, 2012.
c. The said writ petition was maintainable despite objection of
the respondent-claimants that an appeal ought to have been
filed under Section 30 of the Act, and not this petition. The
argument on maintainability focused on the plenary powers of
this Court under Article 226 of the Constitution of India, 1950
and reliance was placed on decision of the Apex Court in U.P.
State Spinning Company Ltd. v. R. S. Pandey and Anr.
(2005) 8 SCC 264. In this regard, it was further stated that
since the matter related to the very identity of the agency and
the petitioner's relationship with the same, question arises as
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to who would potentially be liable under the Act; thus, the
petitioner had the right to approach this Court and invoke its
writ jurisdiction.
d. Reliance was further placed on a decision in Maharashtra
Chess Association v. Union of India & Ors., Civil Appeal No.
5654/2019 dated 29 th July, 2019, wherein the Hon'ble
Supreme Court has stated that an alternate adequate remedy is
merely an additional factor to be taken into consideration by
the High Court in deciding whether or not to exercise its writ
jurisdiction.
e. The claimants had not been able to give concrete proof of the
fact that the petitioner was indeed the employer of the
deceased and only vague averments to that effect have been
made.
f. Reliance was placed on the statement of Surender Kumar as
part of the analysis provided by the State, per which he and
Akbar Ali worked as loader at M/s. B R Parcel Movers,
Gandhi Nagar, Pushta Road, Delhi, thereby further
corroborating that he was not employed at M/s. Patliputra
Transport Agency to whom the impugned recovery notice was
originally issued.
g. Even if it is assumed that the petitioner was the employer of
the deceased, the death of the deceased had not occurred
during the course of his employment since, as per the
statement of the co-workers, he died in a road accident when
he had gone for defecation.
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h. Reliance was placed on Malikarjuna G. Hiremath v. The
Branch Manager, The Oriental Insurance Co. Ltd. & Anr.
Civil Appeal No. 956/2009, on the issue whether an accident
leading to death can be taken to have arisen during the course
of employment:
"12. This Court in ESI Corpn. v. Francis De Costa (1996
(6) SCC 1) referred to, with approval, the decision of
Lord Wright in Dover Navigation Co. Ltd. v. Isabella
Craig (1940 AC 190) wherein it was held: (All ER p. 563)
"Nothing could be simpler than the words 'arising out of
and in the course of the employment'. It is clear that there
are two conditions to be fulfilled. What arises `in the
course' of the employment is to be distinguished from
what arises `out of the employment'. The former words
relate to time conditioned by reference to the man's
service, the latter to causality. Not every accident which
occurs to a man during the time when he is on his
employment--that is, directly or indirectly engaged on
what he is employed to do--gives a claim to
compensation, unless it also arises out of the
employment. Hence the section imports a distinction
which it does not define. The language is simple and
unqualified."
...
..
15. An accident may lead to death but that an accident
had taken place must be proved. Only because a death
has taken place in course of employment will not amount
to accident. In other words, death must arise out of
accident. There is no presumption that an accident had
occurred."
Submissions on behalf of the Respondents
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7. Refuting the submissions of petitioner's counsel, counsel appearing
on behalf respondent nos. 3 to 7 stated as under:
a. Reliance was placed on statements recorded under Section
161, Cr.P.C. by the petitioner Raj Kumar that the said deceased
was working with him.
b. Reliance was also placed on the statements of the co-workers
Surender Kumar and Shankar who corroborated the fact of
employment of the deceased with Raj Kumar.
c. Reliance was further placed on the statement of identification
of the dead body where the petitioner was a witness, and has
signed so.
d. Maintainability of the writ petition was objected to in light of
the Section 30 of the Act providing for filing an appeal before
the High Court on a substantive question of law. In this regard,
reliance was placed on North East Karnataka Road Transport
Corporation v. Sujatha Civil Appeal No.7470/2009 decided on
2nd November, 2018 and Naresh Kumar v. Sh. Jawahar Singh
& Anr. LPA No. 80/2009.
e. For the purpose of proving a claim (which deals with
sufficiency of evidence), rules of evidence do not apply strictly.
Reliance in this regard was placed on Mackinnon Mackenzie &
Co. (P) Ltd. v. Ibrahim Mahmmed Issak (1969) 2 SCC 607
whereby it was held that the Commissioner has to take inference
in a given case and if the scale is tilted towards the claimants, the
same must be allowed. Furthermore, a reading of Rule 41 of the
Workmen's Compensation Rules, 1924 shows that Order VI of
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the Code of Civil Procedure, 1908 (rules of pleadings) do not
apply.
f. Considering that the offending vehicle was untraceable as per
the final report of the police, the duty was of the employer to pay
compensation considering that the deceased was at work of
loading and unloading with the agency of the petitioner. In this
regard, reliance was placed on Pratap Narain Singh Deo v.
Srinivas Sabata & Anr. (1976) 1 SCC 289 and Oriental
Insurance Co. Ltd. vs Thankappan 2005 SCC OnLine Ker 278
and Manju Sarkar & Ors. v. Mabish Miah & Ors. (2014) 14
SCC 21.
g. Further reliance was placed on Chiman Surakhia Vasava v.
Ahmed Musa Ustad & Ors. 1986 SCC OnLine Guj 4, a decision
of High Court of Gujarat where it was held that despite a
potential confusion about the true employer, in the absence of
contradictory evidence, it would lead to the conclusion that the
worker was indeed employed by the truck owner.
h. Therefore, counsel for the respondent contended that there
was a clear connection between the petitioner and the deceased
as established from the statements noted above, and strict rules
of evidence are not applicable to prove that the accident was out
of and during the course of employment.
Analysis
8. The Court heard detailed submissions by the parties and also perused
the documents placed on record. The assessment of the Court is as under.
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Statutory Appeal and Bar on Writ Jurisdiction of this Court
9. The first issue raised herein pertains to the maintainability of the
present writ petition, in that a statutory appeal is provided by Section 30 of
the Act. Without going into the merits of contentions of both the parties,
this Court is of the opinion that the issue raised in this writ petition
regarding the identity of the petitioner deserves to be addressed. This is for
the reason that having heard the parties at considerable length, and perused
the Lower Court Record, the analysis report made by the State, no purpose
would be served to relegate the parties to a statutory appeal, which in any
event, would also lie to this Court itself. The petitioner has challenged the
recovery notice on the ground that the compensation awarded was not
intended to be satisfied by him and he had no connection with the deceased.
Taking cue from the statement of the Hon'ble Supreme Court in
Maharashtra Chess Association (supra), particularly on the paragraphs
extracted hereunder, this Court does not wish to relegate the parties to a
statutory appeal, at this stage, in addition to the reasons mentioned above.
The relevant portion of the decision in Maharashtra Chess Association
(supra) is extracted as under:
"18. .... The existence of an alternate remedy, whether
adequate or not, does not alter the fundamentally
discretionary nature of the High Court's writ jurisdiction
and therefore does not create an absolute legal bar on the
exercise of the writ jurisdiction by a High Court. The
decision whether or not to entertain an action under its writ
jurisdiction remains a decision to be taken by the High
Court on an examination of the facts and circumstances of
a particular case.
..
..
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21. The mere existence of alternate forums where the
aggrieved party may secure relief does not create a legal
bar on a High Court to exercise its writ jurisdiction. It is a
factor to be taken into consideration by the High Court
amongst several factors. Thus, the mere fact that the High
Court at Madras is capable of granting adequate relief to
the Appellant does not create a legal bar on the Bombay
High Court exercising its writ jurisdiction in the present
matter."
(emphasis supplied)
Service of Summons and Knowledge of Proceedings before the
Commissioner
10. The issue relating to service of summons would have some
relationship with the determination of identity of the petitioner and the
employment connect with the deceased. As recorded in order dated 14th
June, 2013 by the Commissioner allowing the claim application, the initial
notice was received but signatures on receipt of the same were refused to
be given. The second summons were issued on 21 st March, 2013 through
speed post and dasti and a report was filed on affidavit stating that when
the representative went to the address specified, they met one Mr. Sushil,
who gave his introduction as brother of owner of the company and refused
to receive the summons. The third summons were issued on 15 th April,
2013 through a process server who reported that Sh. Sanjay Kumar, worker,
who was present at that time, received the summons but did not gave his
signatures.
11. Counsel for the respondent drew attention to the summons dated 15th
April, 2013 issued in the name of M/s. Patliputra Transport Agency at 9/23,
Union Bank ATM wali gali, Shyam Block, Kailash Nagar, Delhi-110031
to Sh. Raj Kumar, owner, which was returned with the note of the process
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server dated 30 th April, 2013 stating that at that address one Mr. Sanjay
Kumar was found who received the said notice but refused to sign.
Furthermore, attention has also been drawn to an affidavit of the process
server dated 3rd April, 2013 stating that he had gone on that day at 4 o'clock
to the address of M/s. Patliputra Transport Agency where one Mr. Sushil
was available and stated that he was the brother of owner of the company
and after calling his lawyer, he refused to accept the summons. Yet again,
another affidavit by process server dated 14 th February, 2013 was also
placed on record which states that at that address, one Mr. Sajjan was found
who gave his introduction as the employee of Raj Kumar and after speaking
to said Raj Kumar on the phone, he refused to receive the summons.
12. It is noted that the impugned recovery notice addressed to the Sub
Divisional Magistrate ("SDM"), Gandhi Nagar is in the name of M/s.
Patliputra Transport Agency through Sh. Raj Kumar, owner at Kailash
Nagar / Gandhi Nagar address. Subsequently, the notice issued by the SDM
dated 7th November, 2016 was also at the same address through Sh. Raj
Kumar as owner and was to be served through the SHO, Police Station
Gandhi Nagar. The report of the server from P.S. Gandhi Nagar stated that
there was no agency by the name of M/s. Patliputra Transport Agency at
the given address.
13. In response to a direction by this Court dated 21st May, 2019
permitting the petitioner to file an affidavit in defence regarding the issues
of service of summons and existence of an employer-employee relationship
between the petitioner and the deceased, the former filed an affidavit dated
25th July, 2019. In the said affidavit, even though he mentioned that he was
neither the owner of the transport vehicle, the company mentioned, nor had
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any relationship with the deceased, he does state that his wife received the
impugned recovery notice on 5 th May, 2019.
14. Despite his denial regarding service of notices during the period of
2013 to 2019 and his averments about not being the owner of M/s.
Patliputra Transport Agency and not having any connection with the
deceased, it is imperative to note that firstly, the petitioner does admit that
he was, at the very least, employed by M/s. Patliputra Transport Agency.
The existence of such an agency therefore, cannot be doubted, even as per
the petitioner. Despite an opportunity provided by this Court, the petitioner
did not provide any document to show that he was merely an employee of
the said agency. Hence, his connection with the agency cannot be doubted;
the various contentions made by the petitioner are merely to create a smoke
screen in order to avoid liability.
15. Secondly, at no point of time has the petitioner denied having
recorded the statement under Section 161, Cr.P.C. or having signed as
witness to the identification of the body of the deceased by his family,
analysis of which was filed by the ASC. Thus, petitioner's denial regarding
existence of an employer-employee relationship is a glaring contradiction
to his statements recorded by the police and in fact, weakens his case. His
connection with the deceased is also therefore clear and without any doubt.
In this regard, it may be apposite to note certain observations made by the
Apex Court in Khatri and Ors. v. State of Bihar (1981) 2 SCC 493; same
are extracted as under for ease of reference:
"It bars the use of any statement made before a police
officer in the course of an investigation under chapter XII,
whether recorded in a police diary or otherwise, but by the
express terms of the Section this bar is applicable only
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where such statement is sought, to be used 'at any inquiry
or trial in respect of any offence under investigation at the
time when such statement was made'. If the statement made
before a police officer in the course of an investigation
under chapter XII is sought to be used in any proceeding
other than an inquiry or trial or even at an inquiry or trial
but in respect of an offence other than that which was under
investigation at the time when such statement was made, the
bar of Section 162 would not be attracted."
16. Thirdly, the consistent denial to accept notice by one Sushil, who
introduced himself as brother of owner of the company, but refused to
receive summons, and one Sanjay, who did not deny the existence of Raj
Kumar but refused to receive summons as well further shows that there
were consistent attempts made to evade liability. In light of these attempts,
the contention of the petitioner that he was completely unaware of the
proceedings going on before the Commissioner and he only found out
about it when his wife received the impugned recovery notice cannot be
accepted.
Employer-Employee Relationship & 'During Course of Employment'
17. The respondent's contention that the deceased was employed with
the petitioner is clearly established and corroborated by statements of co-
workers Surender Kumar and Shanker stating that Akbar Ali, the deceased,
worked as a loader at M/s. B R Parcel Movers at Gandhi Nagar, Pushta,
Delhi, at the godown of Raj Kumar. In fact, the petitioner's own statement
under section 161, Cr.P.C. also notes that he has the godowns in the name
and style of M/s. B R Parcel Movers and amongst those who were engaged
for the purpose of loading and unloading in the godown, the deceased too
was employed with him since 7th August, 2008 and also that he used to stay
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there. This date of 7th August, 2008 holds some significance as it is the
same date as stated by co-worker Shankar (who, as per the petitioner,
worked with him for the last about 2 years). These statements establish
that the deceased was indeed working with the petitioner.
18. The sine qua non of establishing an employer-employee relationship,
for the purpose of compensation of the Act, thus, stands satisfied in the
present case. The fact that the employer is stated as Mr. Raj Kumar, does
not exonerate him from the liability to pay death compensation as provided
for in the Act. In this regard, reference may be made to the following
decisions:
(i) Manju Sarkar & Ors. v. Mabish Miah & Ors. (2014) 14 SCC
21 - a case involving a claim under the Workman' Compensation
Act, where a driver drove a truck and got down to make
arrangements for the repair of the vehicle but met with the road
accident, the Hon'ble Supreme Court dealt with an issue of when
is the duty of a worker within the course of employment or
outside the scope of employment. In this regard, the Hon'ble
Supreme Court noted the submissions as under:
"4. The learned counsel for the appellants contended that
Sajal Sarkar met with a road accident resulting in his death
during the course of his employment as truck driver under
respondent Nos.1 and 2 and the Courts below have failed to
note the principle of notional extension at both the entry and
exit by time and space and apply the same to the present
case and the appellants are entitled to compensation.
5. Per contra the learned counsel for the respondents
contended that Sajal Sarkar parked the truck in the godown
complex of FCI Churaibari and considering the delay of
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loading goods, he left the truck and went away towards an
unknown destination in connection with his personal
affairs, saying to helper Bikram Deb that he would return
by night, and the appellants have not proved that there was
mechanical trouble in the truck on the way to Churaibari
FCI godown as pleaded by them and Sajal Sarkar did not
suffer the injuries in the course of his employment and,
therefore, the appellants are not entitled to receive any
compensation under the Act, as rightly held by the Courts
below."
It further held as under:
"11. As rightly contended by learned counsel appearing for
the appellants there is a notional extension in the present
case also and we would, therefore, hold that Sajal Sarkar
met with the road accident in the course of his employment
under respondent Nos.1 and 2. The Courts below have
misdirected themselves while dealing with this question and
the finding rendered by them is perverse and
unsustainable."
(emphasis supplied)
(ii) Chiman Surakhia Vasava v. Ahmed Musa Ustad &
Ors. 1986 SCC OnLine Guj 4 - in a case under the Workman
Compensation Act, involving some confusion about who was the
true employer, relating to death of a worker who was engaged in
lifting stones from quarry to the truck, the High Court of Gujarat
observed as under:
Thus a funny, but a very unfortunate, situation has arisen.
Here is an employee without there being an employer. The
person who took work from him and paid wages to him,
either the truck owner or the owner of the quarry, has found
it convenient to disown him. Both of them have been able to
create a smoke screen of technicalities and the learned
Commissioner has not been able to come out of the
hidebound thinking influenced by the provisions of the Civil
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Procedure Code and the Evidence Act with which he is
more familiar as Civil Judge, Senior Division. He ought to
have realised that the functions and duties of the
Commissioner are radically different than that of a Civil
Judge, Senior Division. It is unfortunate that the learned
Commissioner who appears to have been obsessed by the
procedural rules and technicalities of Civil Procedure Code
and Evidence Act is not sufficiently aware about the
underlying principles and object of the Workmen's
Compensation Act, 1923 (hereinafter referred to as the
Act). In the Statement of Objects and Reasons articulated at
the time of moving the Bill which ultimately resulted in
passing of the Act, it is stated: ". . The growing complexity
of industry in this country, with the increasing use of
machinery and consequent danger to workmen, along with
the comparative poverty of the workmen themselves,
renders it advisable that they should be protected, as far as
possible, from hardship arising from accidents." In the
Statement of Objects and Reasons it is further stated: "The
general principle is that compensation should ordinarily be
given to workmen who sustained personal injuries by
accidents arising out of and in the course of their
employment. Compensation will also be given in certain
limited circumstances for disease ... ... At the same time, on
unanimous recommendation of the committee, provision
has been made for Special Tribunals to deal cheaply and
expeditiously with any disputes that may arise, and
generally to assist the parties in a manner which is not
possible for the ordinary Civil Courts."
..
..
In the instant case, the workman has categorically stated in
his deposition that he was employed by respondent 1 the
truck owner and that he was being paid wages by him. The
workman has further stated that for the last two days before
the accident he was working on the truck. In the instant
case, the workman was not employed in a factory or farm
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belonging to one person. The very nature of the work to be
performed by the workman forced him to move from one
place to another, i.e., from quarry to the place where the
stones were taken and again to quarry. When workmen are
being employed in such type of employment, there may be
some understanding between the owner of the quarry and
the truck owner with regard to the payment of wages to be
made to the workmen engaged in lifting stones and filling
the same in the truck. It may be that some servant of the
quarry owner or that of the truck owner might be making
payment. Therefore, the workman is likely to be in doubt as
to who is his real employer. But the learned Commissioner
ought to have exercised his common sense. Just as there
cannot be a child, either legitimate or illegitimate, without
parents, there cannot be an employee without an employer.
In the instant case, when the workman deposed on oath that
he was employed by respondent 1 the truck owner and when
there was no contrary evidence led either by the owner of
the truck (respondent 1) or by the owner of the quarry
(respondent 3) the inevitable inference to be drawn is that
the workman was employed by respondent 1 the truck
owner.
(emphasis supplied)
(iii) Oriental Insurance Co. Ltd. (supra). While dealing
with a claim of compensation arising from death of a worker who
was driving a bus and after parking the same, went to a nearby
stream where he died. The High Court of Kerala noted as under:
"6. We cannot consider any case divorced from the facts
situation. In the case on hand the evidence clearly disclosed
that he had been staying in the bus for the purpose of
commencing its trip early morning at 3.30 a.m. The bus was
being parked in a petrol bunk and the accident occurred
when he went to the nearby stream for the purpose of taking
bath along with the driver and the conductor. Thus it has
come out in evidence that the deceased workman along with
his colleagues had been there with the bus for the purpose
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of commencing duty early in the next morning at 3.30 a.m.
So there was connection between the accident that had
occurred and the duty that he had to perform immediately
after that. He had gone for taking bathing just before
commencing duty at 3.30 a.m. as he had been staying in the
bus for the purpose of taking the bus at that time. So the
connection between the accident and the employment is thus
manifest.
7. Another Division Bench of this Court in Devshi Bhanji's
case, 1985 KLT 78, cited supra has made it clear that when
there is casual connection between the employment and the
death of a workman in an unexpected way, it could be
certainly be considered as an accident arising out of and in
the course of employment which would entitle the dependent
legal heir to claim compensation. Of course the facts
situation in that case arose when a workman fell down due
to heart attack which resulted because of the exertion
arising out of the employment and that was the causal
connection between the accident and the employment in that
case.
8. Similarly in this case also as the workman was expected
to be in the bus for the purpose of commencing his duty in
the early morning at 3.30 a.m. He had to attend to his
human needs before commencing duty as he was staying in
the bus. There was no arrangement made for that purpose.
He had to go to the nearby stream for taking bath. It was at
that time there occurred the accident resulting loss of life of
the workman. Necessarily it shall be taken as one arising in
any way out of his employment and has its origin in the
employment, as held by the Supreme Court in Francis De
Costa's case, 1996 (2) KLT 799. Necessarily, it cannot be
stated that the death had not arisen out of and in the course
of employment. The question of law raised is thus answered
in negative against the appellant."
(emphasis supplied)
Signing Date:21.12.2023 W.P.(C) 5099/ 2019 19/21
19. Counsel for the respondent has, therefore, rightly relied upon these
decisions that: firstly, advert to the larger context of the Act and its intent,
and secondly, refer to the elasticity/notional extension which needs to be
attributed while considering death during the course of employment.
20. So far as the first aspect is concerned, the Act is a social security
legislation providing compensation to persons engaged in certain kinds of
employment. The need for such social security arose keeping in mind such
individuals who depend upon their earnings to put food on the table and
make ends meet. Being faced with humble earnings from the work done,
these individuals tend to take risks at the workplace just to ensure
continuity of income. As is the case at hand, the deceased was living in
Delhi since the last 15-20 years working odd jobs supporting a family of 5
dependents who primarily reside far away in a village in Jammu. The Act
was enacted to secure such workers and their dependents by providing
reasonable quantum of compensation and saving them from being left to
fend for themselves in the event of a catastrophe. For demise of the sole
bread earner is nothing less than a catastrophe when means were already
meagre.
21. As regards the second aspect, as a general rule, compensation under
the Act is granted to a workman when death occurs arising out of and
during the course of employment. However, the pertinent question is
whether the deceased continued to remain in the course of employment
when he went to defecate and thereafter sustained injuries in the road
accident on that fateful day. What constitutes as 'during course of
employment' needs to be determined after careful examination of the facts
and circumstances of each case. In the present case, the statement of
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Shankar recorded under Section 161, Cr.P.C. states that the deceased was
with a few of their colleagues before he left with a bottle of water to relieve
himself. In the present case, the doctrine of notional extension would be
applicable at both entry and exit of 'time' and 'place'. Course of
employment does not start and end at the stroke of the clock, especially in
line of work such as loading and unloading of transport vehicles. He was
at the place of his employment, where he also used to reside. That time of
night if he had to cross the road or go elsewhere in order to defecate, he
would still continue to be in the range and ambit of his work as an employee
and the circumstance cannot be segregated and severed. The fact that the
deceased left the godown to tend to a natural need will very well come
within the purview of such extension. Loading/unloading of vehicles does
take place in the late hours at night in the transport industry and there is no
reason to disbelieve the claimants in this regard. Therefore, the petitioner's
contention that the deceased's death occurred outside of course of
employment as he had gone for defecation cannot be accepted.
22. Therefore, not only is the identity of the petitioner established but
also the employer-employee relationship with the deceased is clear. Ergo,
the liability under the Act would fall on him being the employer despite his
attempts to create a smoke screen and opacity around the facts.
23. In view of the above, the present writ petition stands dismissed; the
impugned recovery notice dated 2 nd August, 2013 is hereby upheld.
24. Petition stands disposed of accordingly along with pending
applications, if any.
25. Copy of the judgment be uploaded forthwith on the website of this
Court.
Signing Date:21.12.2023 W.P.(C) 5099/ 2019 21/21
(ANISH DAYAL)
JUDGE
DECEMBER 20, 2023/sm
Signing Date:21.12.2023 W.P.(C) 5099/ 2019 22/21
