Himachal Pradesh High Court

Kangra vs Jagindro Devi on 25 October, 2021

Bench: Sandeep Sharma

                          1

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 25TH DAY OF OCTOBER, 2021
                           BEFORE




                                                            .
       HON'BLE MR. JUSTICE SANDEEP SHARMA





         FIRST APPEAL FROM ORDER No. 4121 of 2013
    Between:-
    HEM RAJ SHARMA, SON OF





    SHRI MILKHI RAM SHARMA,
    RESIDENT    OF     VILLAGE
    PANJIARA,   POST    OFFICE
    ADHWANI,            TEHSIL
    JAWALAMUKHI,      DISTRICT





    KANGRA, HIMACHAL PRADESH.
                                           ......APPELLANT

    (BY MR. K.S. BANYAL, SENIOR
    ADVOCATE WITH MR. K. VIJENDER

    KATOCH, ADVOCATE)
    AND

    1. JAGINDRO DEVI, WIDOW OF
       SH. KULDEEP SINGH;

    2. BALJIT SINGH, MINOR SON
       OF SHRI KULDEEP SINGH;



    3. INDU    BALA,     MINOR
       DAUGHTER OF SH. KULDEEP
       SINGH;




       BOTH MINORS THROUGH
       THEIR   MONTHER     AND





       NATURAL GUARDIAN SMT.
       JOGINDRO DEVI;

    4. SARESHTA DEVI, DAUGHTER





       OF SHRI KULDEEP SINGH;


    ALL RESIDENTS OF JATAHAD,
    P.O. ADHWANI, TEHSIL JAWALAMUKHI,
    DISTRICT KANGRA, H.P.

                                                  ......RESPONDENTS
    (BY  MR.      VARUN       RANA,
    ADVOCATE)

    Whether approved for reporting? Yes.




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                              2


                 This appeal coming on for orders this day, the Court
    passed the following:




                                                                 .
                                JUDGMENT

Instant appeal filed under Section 30 of the Employee

Compensation Act, 1923, lays challenge to order dated 20.10.2012,

passed by learned Commissioner, Employees Compensation, Court

No.1, Dehra, District Kangra, H.P., whereby learned court below while

allowing the claim petition having been filed by petitioners/respondents

herein (hereinafter to be called as "petitioners") under Section 4 of the

Workmen's Compensation Act (for short 'Act') held them entitled for

compensation to the tune of Rs.2,54,160/- along with interest at the

rate of 12% per annum, i.e. Rs. 1,52,496/- (total Rs.4,06,656/-), along

with further interest @ 12% per annum, in case aforesaid award

amount is not deposited within a period of two months.

2. Precisely, the facts of the case, as emerge from the

record are that the petitioners filed a petition under Section 4 of the Act,

claiming therein compensation on account of death of one Sh. Kuldeep

Singh being his legal representatives and dependents. Petitioners

claimed before the court below that deceased Kuldeep Singh was

engaged/employed by the respondent/appellant herein (hereinafter to

be called as "respondent") for construction of his house in the year

2007 on daily wages of Rs.100/- per day and on 12.09.2007, above-

named deceased Kuldeep Singh buried under the debris of katcha wall

of the house of the respondent. Though, aforesaid person was taken

to hospital, but he was declared brought dead. Since deceased

Kuldeep Singh was the sole bread earner of the family, the petitioners

approached the Court below, seeking compensation to the tune of Rs.

3 lac. The respondent by way of filing reply refuted the aforesaid claim

and claimed that he had not employed late Kuldeep Singh on

12.09.2007 for digging work, as alleged. He also denied that deceased

Kuldeep Singh died after being buried under the debris of the katcha

wall. On the basis of pleadings adduced on record by respective

parties, following issues were framed on 16.08.2010:-

r (I) Whether the deceased Kuldip Singh was a workman with the respondent?

(ii) Whether the petitioners are entitled for compensation as alleged?

3. Subsequently, learned Commissioner, Employees

Compensation vide award dated 20.10.2012, held petitioners entitled

to compensation to the tune of Rs. 2,54,160/- along with interest @

12% per annum, i.e. Rs. 1,52,496/- (total Rs. 4,06,656/-) and

specifically ordered that in case aforesaid amount is not paid within a

period of two months, the respondent shall be further liable to pay

interest @ 12% per annum on the account of compensation as well as

interest calculated thereupon. In the aforesaid background, the

respondent has approached this Court in the instant proceedings,

praying therein to dismiss the claim of the petitioners after setting aside

the award dated 20.10.2021 impugned in the instant proceedings

4. Aforesaid appeal came to be admitted on the following

substantial question of law:-

"Whether learned Commissioner has

misconstrued and misinterpreted the

pleadings and evidence in returning the findings that Kuldip Singh was a workman under the Employee's Compensation Act?"

5. Having heard learned counsel representing the parties

and perused the pleadings as well as evidence adduced on record by

respective parties, this Court finds that precise grouse of the

appellant/respondent is that court below has erred while treating

deceased Kuldeep Singh as a workman under Employee's

Compensation Act, 1923. Mr. K.S. Banyal, learned Senior Counsel

representing the appellant, vehemently argued that as per definition of

'workman' under Section 2 (1)(n) of the Act, "workman" would mean

"person other than a person whose employment is of a casual nature

and who is employed otherwise than for the purposes of the employer's

trade or business". He further argued that as per own case set up by

respondents, deceased Kuldeep Singh was engaged on daily wages

for doing work of casual nature and as such, he could not be termed as

'workman', hence, on this sole ground, claim petition ought to have

been dismissed.

6. However, having carefully perused the definition of

'workman' as provided under Section 2(1)(n) of the Act, this Court finds

that words "other than a person whose employment is of a casual

nature and who is employed otherwise than for the purposes of the

employer's trade or business" stand omitted by Amendment Act 2000

w.e.f. 08.12.2000, whereafter 'workman's definition came to be

enlarged and person employed in any such capacity as is specified in

Schedule-II, is to be termed as workman. As on 12.09.2007, when

alleged incident took place, definition of 'workman' as given in Section

2(1)(n) of the Act, reads as under:-

"(n) 'workman' means any person who is-

(i) .................................................. (ia) (a).........................................

(b).........................................

(c)......................................... r (c).........................................

(ii) employed in any such capacity as is specified in

Scheduled 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 the Armed Forces of the Union; 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."

7. Similarly, careful perusal of Schedule-II, para (viii) of the

Act, ibid, clearly provides that person employed in the construction,

maintenance, repair or demolition of any building which is designed to

be or is or has been more than one storey in height above the ground

or twelve feet or more from the ground level to the apex of the roof,

shall be a workman within the Act, ibid.

8. There is no dispute that vide amendment Act, 2000,

definition of 'workman' came to be amended whereby words "other

than a person whose employment is of a casual nature and who is

employed otherwise than for the purposes of the employer's trade or

business" were deleted, meaning thereby at the time of alleged

incident, deceased Kuldeep Singh was a workman and as such,