Gujarat High Court
Nazirmiya Jahangirmiya Malek Deced. ... vs Sarpanch on 13 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4482 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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NAZIRMIYA JAHANGIRMIYA MALEK DECED. THROUGH RAJIAYABIBI &
ORS.
Versus
SARPANCH & ANR.
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Appearance:
MR UT MISHRA(3605) for the Appellant(s) No. 1,2,3,4
MR DG CHAUHAN(218) for the Defendant(s) No. 2
MR VA MANSURI(2880) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 13/02/2024
ORAL JUDGMENT
1. Heard learned advocate Mr.Mishra for the
appellants and learned advocate Mr.Mansuri for the
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respondent No.1
2. By way of the present Appeal under Section 30
of the Workmen's Compensation Act, 1923, the appellants
have challenged the judgment and order dated 26.08.2009
passed by the learned Commissioner Workman
Compensation, District Kheda and Labour Court, Judge in
Workman Compensation Claim (Fatal) No.2 of 1995,
whereby the learned Judge has rejected the claim of the
appellants.
3. The brief facts leading to the present First
Appeal are as under:-
3.1 Appellant No.1 is the widow of deceased-
Nazirmiya Jahangirmiya Malek, appellant Nos.2 and 3 are
the children of deceased-Nazirmiya Jahangirmiya Malek
and appellant No.4 is the mother of the deceased-
Nazirmiya Jahangirmiya Malek.
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3.2 The deceased was engaged in the work for
repairing of Well. On 03.05.1994, when the deceased
entered into the Well which is situated at Bharwadvas area
and he met with an accident and died.
3.3 The appellants preferred an application under
the Workmen's Compensation Act, 1923 for the
compensation. On 26.08.2009, the learned Labour Court
rejected the claim of the appellants. Hence, the present
appellants are before this Court.
4. Learned advocate for the appellant submitted
that respondent No.1 is handling the affairs of Gram
Panchayat and respondent No.2 is a local private villager
and having its independent business. Because of scarcity of
water for the animals of villagers, a complaint was lodged
with respondent No.1 authority by villagers for repairing
the Well, which is situated at Bharwadvas area.
Respondent No.2, who is a villager took initiative for
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repairing of the said Well. Resultantly, respondent No.2
approached the deceased- Nazirmiya Jahangirmiya Malek
and entrusted the work for repairing of Well. On
03.05.1994, the deceased- Nazirmiya Jahangirmiya Malek,
went inside the Well. Deceased was accompanied by one
Kamrudin and other labourers, who were there to help the
deceased in repairing the Well. All of a sudden, due to
leakage of gas in the pipe line the deceased succumbed to
death and another person namely Kamrudin, went inside
the well with deceased somehow could survive. The age of
the deceased was 23 years at the relevant point of time
and he was drawing monthly income of Rs.1,500/- and
hence, he claimed compensation of Rs.14,337/- with
penalty, interest and cost.
5. Learned advocate for the appellants has mainly
contended that the accident has taken place during the
course of performance of duty and the appellants have
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stated that the work for repairing of Well was entrusted to
the deceased and other labourers at the rate of Rs.50/- per
day and Rs.25/- per day respectively. The contention of
the learned advocate for the appellants is that the learned
Labour Court has failed to appreciate the fact that the
police personnel were called at the site, and the deceased
and one Kamrudin, were taken out from the Well and the
learned Labour Court has failed to appreciate the factual
background of the claim petition and has committed an
error in interpreting the provisions of law and in
interpreting the evidence while rejecting the application.
6. Learned advocate for respondent No.1 has
submitted that, in the claim petition, there are no
averments as to the fact that under whose employment,
the deceased was employee. The application is silent with
regard to the date of appointment of the deceased with
respondent No.1. The attention is drawn of this Court with
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regard to the definition of Section 2(n) of the Workmen's
Compensation Act, 1923. Section 2(n) of the Workmen's
Compensation Act, 1923, is reproduced hereunder: -
"2(n) "workman" means any person 9[***] who is-
(i) a railway servant as defined in [clause (34) section
3 of the Indian Railways Act,1989 (9 of 1890), not
permanently employed in any administrative, district
or sub-divisional office of a railway and not employed
in any such capacity as is specified in Schedule II, or
[2(ia) (a) a master, seman or other member of the
crew of a ship,
(b) a captain or other member of the crew of an
aircraft,
(c) a person recruited as driver, helper, mechanic,
cleaner or in any other capacity in connection with a
motor vehicle,
(d) a person recruited for work abroad by a company,
and who is employed outside India in any such
capacity as is specified in Schedule II and the ship,
aircraft or motor vehicle, or company, as the case
may be, is registered in India, or;]
(ii) employed 3[***] 4[***] in any such capacity as is
specified in Schedule II, whether the contract of
employment was made before or after the passing of
this Act and whether such contract is expressed or
implied, oral or in writing; but does not include any
person working in the capacity of a member of 5[the
Armed Forces of the Union] 6[***]; and any reference
to a workman who has been injured shall, where the
workman is dead, include a reference to his
dependants or any of them.
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7. Respondent No.1 filed Written Statement and
respondent No.2 also filed Written Statement at Exh.30.
The main contention of respondent No.1 is regarding the
relationship of employees and employer between the
deceased and respondent No.1. It was also contended by
respondent No.1 that the deceased was not in the
employment of respondent No.1 and the work of repairing
of Well was never entrusted to the deceased by either the
Gram Panchayat or by respondent No.1. No Resolution was
passed by respondent No.1 to entrust the work for
repairing Well. Thus, the deceased was not within the
scope and purview of the definition of workman as
contemplated under the Workmen's Compensation Act,
1923, and hence, prayed for rejection of the claim.
8. Respondent No.2 in his Written Statement also
denied th e liability of negligence in the accident. It is the
case of respondent No.2 that on the complaint of the
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villagers regarding scarcity of water for the animals,
respondent No.2 took initiative for repairing of Well, and
for that, he approached the deceased and the work of
repairing of Well entrusted to him with the deceased on
condition of paying Rs.50/- per day to him and Rs.25 per
day to the other labourers. Resultantly, the deceased
started the work for repairing of Well, and unfortunately,
on 03.05.1994 at around 4.30 p.m., he succumbed to
death due to leakage of gas inside the Well. The deceased
was never in the employment of respondent No.2 and
there was no relationship of employee and employer
between the deceased and respondent No.2, and also
prayed for rejection of claim.
9. The widow of deceased was examined vide
Exh.13 and has mainly reiterated the facts mentioned in
the application. Respondent No.1 led the evidence vide
Exh.46 and respondent No.2 also led the evidence by
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submitting an Affidavit in lieu of Examination-in-chief at
Ex.33. The appellants have produced the documents such
as complaint lodged before the Police Station, Panchnama
of the Place and Postmortem report.
In the cross-examination, the appellants have
admitted that there is no claim against Kamla Gram
Panchayat and no knowledge regarding the fact whether
the deceased was called upon by respondent No.2. There is
also an admission on the part of the appellants that there
are no resolutions passed by respondent No.1 for
entrusting the work for repairing of Well in favour of
dedeased.
10. Learned advocate for respondent No.1 has
submitted that in absence of relationship of master and
servant, the learned Labour Court has rightly rejected the
claim. It is further pointed out that the accident has not
taken place during the course of an employment and there
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was no contract of employment in favour of the deceased.
It is also submitted that whatever work for repairing of
Well was entrusted to the deceased and was entrusted by
respondent No.2 in his individual capacity and respondent
No.1 has nothing to do with the entrustment of work for
repairing of Well. Thus, the learned advocate for
respondent No.1 has submitted that, there is no provisions
of law involved in the present appeal whereby this Court
can interfere in the findings of facts. It is also submitted
that the learned Labour Court has considered the oral as
well as the documentary evidence placed on record, and
thereafter the claim application was rejected.
11. Learned advocate for respondent No.1 has relied
upon the following decisions in support of his
submissions:-
(i) Koli Manga Ghugha Vs. Madanbhai
Mohanbhai Patel & Ors. reported in 2008(3)
L.L.H.(UJ) 10.
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(ii) Om Parkash Batish Vs. Ranjit @ Ranbir Kaur
reported in 2008(0) GLHEL-SC-41226.
12. In the case of Koli Manga (supra), this Court has
observed as under:-
"The material question is whether the applicant
comes within the definition of word "workman"
defined in Section 2(n) of the Act. The applicant
himself has said in his chief-examination that on
the day of the incident he was working as a
labourer on the truck of opponent No.1. He has
not said since how long he had been working
with the opponent No.1. Therefore, it is very
clear that the accident took place on the very
day on which the applicant was employed as a
labourer for the first time. Even opponent No.1
has said on oath that applicant was employed as
a casual labourer. Even opponent No.2 has said
on oath that he has been working as driver on
this truck for 10 to 20 years, and that opponent
No.1 had instructed him to hire a labourer
whenever necessary. He further said that he
engaged applicant on a casual basis for labour
work on 30.5.83. That version of opponent No.2
has stood the test of cross-examination.
Therefore, it is clear that the employment of
applicant was casual. Section 2(n) of the Act
defines "workman" and means any person
(other than person who is employed as casual
labourer etc.). Therefore, it is very necessary
that the employment of a person must not be of
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a casual nature. In this case the employment of
the applicant was for the first time and it turned
out to be last day. Therefore, the applicant
cannot be called a workman within the
meaning of the Act. Therefore, even assuming
that the injury was caused to the applicant in an
accident arising out of and in the course of his
point No.1 has got to be held in the negative. I,
therefore, hold it in the negative."
13. In the case of Om Parkash (supra), in paras 23
and 24, the Hon'ble Supreme Court has observed as
under:-
"23.The workman in the present case was employed
for a limited period for carrying out repair works in
a residential house. The same does not, thus,
answer the description of a workman as contained
in the provisions of the Act.
24..Schedule II appended to the said Act to which
reference was made by Mr. Dhingra, in our opinion,
is not applicable, as it is subject to the provisions
of Section 2(1)(n) of the Act. If, therefore, the law
as it then stood would exclude the applicability of
the Act, having regard to the definition of the term
"workman" the same cannot be held to include
deceased, only because he was working in
connection with a building activity.
14. It is an admitted fact on record that the
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deceased died on 03.05.1994 while repairing the Well
which is situated at Bharwadvas area. The fact which
emerges from the record that the work for repairing of
Well was entrusted by respondent No.2 in his individual
capacity and not by respondent No.1. The appellants have
failed to establish the fact that the work for repairing of
Well was entrusted by respondent No.1. Even in the claim
application, the appellants have failed to demonstrate that
there was no relationship of master and servant between
respondent No.1 and deceased respectively. The Sarpanch
i.e. respondent No.1 in her deposition has stated that any
work for repairing of Well can be undertaken, afer
Resolution is passed by the Gram Panchayat and in
absence of any Resolution passed regarding the repairing
of Well, it cannot be said that the work for repairing of
Well was entrusted by respondent No.1 to the deceased.
From the oral evidence, it is found that the Resolution was
passed on 03.03.1994 for having a new bore Well at
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Bharwadvas area and the District Development Officer was
intimated in writing. However, no such Resolution was
passed for getting the Well repaired through the deceased.
15. While examining the oral evidence, it could be
noticed that respondent No.2 on his own interest entrusted
the work of repairing of Well to the deceased. However,
he has denied the relationship of master and servant
between respondent No.2 and deceased. As can be seen
from the Cross-examination of respondent No.1 and
respondent No. 2, nothing adverse could be found out by
this Court which attracts this Court to interfere in the
findings of facts. In absence of relationship of master and
servant between the parties. The provisions of the
Workmen's Compensation Act, 1923, cannot be attracted
and since this being special enactment, strict burden of
proof is always on the appellants to discharge the initial
burden of relationship.
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15. In the present case, in absence of the positive
evidence regarding the relationship, the decisions in the
case of Koli Manga (supra) and Om Prakash (supra), which
have been relied by the learned advocate for respondent
No.1 squarely applies and applying the said decisions,
present First Appeal lacks merit. Resultanly, the same is
dismissed. R&P be sent back to the concerned trial Court
forthwith.
(D. M. DESAI,J)
MANOJ
