Ghogha Taluka Panchayat Through ... vs Shantuben Wd/O Tulsibhai ...
2022 Latest Caselaw 1721 Guj

       C/FA/1512/2021                               ORDER DATED: 15/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1512 of 2021

                                With
       CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
                 In R/FIRST APPEAL NO. 1512 of 2021
                                With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                            NO. 2 of 2021
                 In R/FIRST APPEAL NO. 1512 of 2021
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     GHOGHA TALUKA PANCHAYAT THROUGH TALUKA DEVELOPMENT
                       OFFICER & 2 other(s)
                             Versus
       SHANTUBEN WD/O TULSIBHAI MAKODBHAI DABHI & 6 other(s)
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2,3
MR RAJESH P MANKAD(2637) for the Defendant(s) No. 1,2,3,4,5,6
NOTICE SERVED for the Defendant(s) No. 7
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 CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                                Date : 15/02/2022
                                 ORAL ORDER

1. The appeal is preferred under Section 30 of the Workmen's Compensation Act, 1923 (for short "the WC Act") to assail judgment and order dated 25.1.2021 passed by the Commissioner for Workman Compensation, Labour Court, Bhavnagar in Workman Compensation (Fatal) Case No.9 of 2002.

2. Facts giving rise to the present appeal are not many and lie in a narrow compass.

3. As per the case of respondent Nos.1 to 6, the deceased Tulsibhai Makodbhai Dabhi was doing labour work of digging well and present appellant were his

C/FA/1512/2021 ORDER DATED: 15/02/2022

principal employer. The work of digging well was being carried out near the graveyard of village Neswad. The deceased was paid Rs.100/- as daily wages. The deceased was removing silt from the earth on 26.3.2001 which included a clay and stones fell on him causing serious head injuries. He, was, shifted to Neuro Hospital of Dr.Dipesh Shah, Neuro Surgeon at Bhavnagar where he scummed to the injuries on 27.3.2001 during treatment. The accident had happened while the deceased was performing his duties, and therefore, his death had occurred in the course of and out of the employment of the appellants. The respondent Nos.1 to 6 being the dependents of the deceased filed an application under Section 4A of the WC Act to recover a sum of Rs.3,17,685/- as compensation from the appellants and respondent No.7 herein. The Commissioner has by the impugned order directed the appellants and the respondent No.7 to pay jointly and severally a sum of Rs.2,66,963/- as compensation and also to pay 50% on the amount of compensation as a penalty with interest @12% from 26.4.2001 till realization.

4. Initially the respondent Nos.1 to 6 had filed an application against the present appellants. However, thereafter the appellant No.1 submitted Exhibit 13 application raising preliminary objection and to implead respondent No.7 herein as opponent No.5 in the original application. The said application came to be allowed and accordingly respondent No.7 herein came to be impleaded as opponent No.5 in the application.

C/FA/1512/2021 ORDER DATED: 15/02/2022

5. The appellant as well as respondent No.7 herein entered their appearance by duly instructed advocate and resisted the application by filing the respective replies.

6. It is essentially contended by the appellants that appellant No.2 is an institute of local self Government rendering in essential services to the public at large in compliance of Government order and instructions. It is further contended that appellant No.2 is a instrumental agency extending facilities of the Government welfare scheme and the appellant No.1 and 3 are the head of appellant No.2.

7. The respondent No.7 herein contested the application by filing reply Exhibit 107. He contended that he was doing labour work of daily wages and digging well along with the deceased. He further submitted that he used to pay daily wages to the deceased in cash. It is further contended that he has been falsely implicated as a party. He contended that he does not hold any licence or registration under the Contract Act nor having any experience of contract work. According to him, there was relationship of master and servant between him and deceased. He therefore, urges that the application may be dismissed.

8. I have heard Mr.HS Munshaw, learned advocate for the appellants and Mr.Rajesh Mankad, learned advocate for respondent Nos.1 to 6. there is no appearance on behalf of the respondent No.7, though served.

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9. It is the submission of Mr.Munshaw that there was no direct relationship of employer and employee between the appellants and respondent-deceased. He further submits that a contract of digging well was given to the respondent No.7 herein who had employed the deceased for digging work. According to his submission, the deceased was, therefore, an employee of respondent No.7. He further submits that there being relationship of employee and employer between deceased and respondent No.7, it was respondent No.7 who is solely liable to pay compensation to the respondent No.1 to 6. He further urges that the appeal may be allowed and the impugned order may be quashed qua the appellants.

10. Mr.Mankad, learned advocate for respondent No,1 to 6 submits that the Commissioner had recorded a specific finding that the appellants had given contract for digging well to respondent No.7 and had engaged the deceased to carry out the digging work. He, therefore, submits that it is eminently clear that the deceased was doing work for the appellants and respondent No.7 and the Commissioner jointly pay the compensation along with penalty and cost to the respondent Nos.1 to 6. He, therefore, submits that appeal may be dismissed.

11. I have given my thoughtful consideration to the rival submissions. The commissioner has after valuation of oral and documentary evidence available on record. The contract work of digging well was given to the respondent No.7 herein. It is further emerges from the resolution

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No.20 recorded in the proceedings book of Grampanchayat, Neswad site inspection, it was found that the work of digging well was fully completed and therefore, payment of Rs.82,968/- was made to respondent No.7 herein. It is stated, therefore, the Commissioner in the impugned order while deciding the issue No.2 had held that it is clear on record that the contract of construction of new well at village Neswad Grampanchayat was given under Gokul Gram Yojna Grampanchayat, Neswad through District Village Development Authority to respondent No.7 herein, and therefore, the deceased was workman of opponent No.7 herein.

12. The moot question, therefore, is whether the Commissioner has committed an error in fastening the liability of payment of compensation on the appellant and respondent No.7 jointly and severally without reserving liability in favour of the appellant to recover the compensation in the event it is recovered by respondent Nos.1 to 6 from it.

13. Section 12 (1)(2) of the WC Act reads as under:

(1) here any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to

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the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.

((2)Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation,] and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.

14. It is thus, eminently clear from the bare reading of the provisions of Section 12(1) of the WC Act that the appellant being principal is liable to pay compensation to respondent-workman. However, it appears from the provision of Section 12(2) of the WC Act that when the appellant is held liable to pay the compensation to the workman, he can recover the same from the contractor.

15. In view of the above, provisions of Section 12 (1)(2) of the WC Act, I am of the considered view that commissioner has not committed any error in directing the appellant to pay compensation to respondent Nos.1 to 6 jointly and severally with respondent No.7.

16. However, at the same time, in view of provisions under Section 12 (2) of the WC Act, the Commissioner ought to have reserved liberty in favour of the appellant to recover the compensation paid by him to respondent Nos.1 to 6 from the respondent No7 contractor and to that extent the impugned order of the Commissioner needs to be modified.

C/FA/1512/2021 ORDER DATED: 15/02/2022

17. In view of the above, the order of Commissioner is modified to the extent that if the amount of compensation is recovered by respondent Nos.1 and 6 from the appellant, in that event, the appellant shall be at liberty to recovered the same from the respondent No.7 in accordance with law. Therefore, the appeal accordingly stands disposed of.

18. Since the main appeal is disposed of, Civil Application No.1 of 2021 does not survive. Hence, the same is disposed of accordingly.

ORDER IN CIVIL APPLICATION NO.2 OF 2021

The Commissioner is directed to disburse the amount of compensation which is deposited by the appellants in favour of the respondent No.1 to 6 herein. The application stands disposed of accordingly.

(A.G.URAIZEE, J) ALI