Cm(M) No. 247/2023 vs Assistant Labour Commissioner
2023 Latest Caselaw 1249 j&K/2

                                                                      Item No. 160
                                                                      Supp. List
                 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT SRINAGAR

                               CM(M) No. 247/2023.
United India Insurance Company Ltd.
                                                         ...Petitioner(s)
                        Through:   Mr. N. H. Khuroo, Advocate.
                                             Vs
     1. Assistant Labour Commissioner, Pulwama & Anr.
                                                                     ... Respondent(s)
                        Through:
CORAM:         HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                                   JUDGMENT

04.10.2023

1. In the instant petition, petitioner seeks setting aside of the order dated

27.10.2022, whereby the applicants/deceased employees have been held

entitled to the compensation in the following manner:-

               i.       Mr. Lukman Khan.           Rs. 13,38,675.00
               ii.      Rajdew                     Rs. 1614600.00
               iii.     Kanwali                    Rs. 14,21700.00

2.      The brief facts are summarized as under:

It is stated that the appellant-insurance company had executed an

insurance contract with respondent No. 2 against his brick kiln

registered as Shalimar Brick Kiln being the proprietor of the said

brick kiln. The petitioner company had undertaken to indemnify

the insured respondent No. 2 against any claim raised against it

by way of compensation on account of death or injury to any of

his employees working in the brick kiln during the course of

employment subject to terms and conditions of the insurance

policy. It is further stated that three workers namely 1, Lukman

Khan, 2. Rajdew and Kanwali died inside the brick kiln due to

collapse of the boundary wall of the brick kiln which had fallen

on them while working in the brick kiln. They were injured and

later-on succumbed to their injuries.

3. It is stated that respondent No. 1 along with Labour Inspector went on

spot to conduct investigation and took cognizance of its own and

registered a case for compensation under the Employees Compensation

Act in all the three cases. The petitioner-company was impleaded as

respondent No. 2 had stated before the respondent No. 1 that his brick

kiln was insured with the petitioner-insurance company. It is further

stated that the respondent No. 1-Assistant Labour Commissioner,

Pulwama, finally passed the Common Award on 27.10.2022 in case

titled Lukman Khan & Ors v. Ghulam Mohi-ud-din Dar & Anr, holding

the applicant/deceased employees entitled to the compensation of Rs.

13,38,675.00 Rs. 16,14600.00 and Rs. 14,21700.00 respectively and the

petitioner company was directed to deposit the said amount with the

office of respondent No. 1.

4. It is also stated that though there was a provision of appeal against the

award under the Employees Compensation Act, however, the appeal

could not be filed by the petitioner company as the common award had

been passed in favour of the dead persons, hence the appeal could not

be filed against the dead person, so the petitioner company had no

alternative but to challenge the award through the medium of this

petition.

5. The petitioner company assails the impugned award dated 27.10.2022,

on the ground that the same has been passed in favour of the dead

person and as such, is not sustainable in the eyes of law. It is also stated

that the impugned award has been passed in violation of the provisions

of Employees Compensation Act which provides for filing of a proper

application for compensation by the employee himself, if injured or by

the legal heirs of the deceased employees. However, in the instant case

the respondent No. 1 on his own has got the cases registered in the

name of the deceased person without getting the legal heirs of the

deceased employees arrayed as applicants as is required under the

provisions of law. The respondent No. 1 was under an obligation to

provide opportunity of being heard to the petitioner company and allow

it to lead its evidence in defence which could have been possible only

if the legal heirs of the deceased employees would have been arrayed as

applicants.

6. Heard learned counsel for the petitioner-company, considered the

pleadings, the submissions advanced by Mr. Khuroo, learned counsel

for the petitioner-company.

7. From the perusal of the impugned award dated 27.10.2022, it is evident

that the same has been passed by the Assistant Labour Commissioner,

Pulwama without following due procedure of law. Moreover, the

award has been passed in favour of the dead persons without

impleading the legal heirs of the deceased persons on record.

8. Be that as it may, impugned award dated 27.10.2022, passed in a

petition title Lukman Khan & Ors. v. Ghulam Mohi-ud-din Dar & Anr.

by the Assistant Labour Commissioner, Pulwama, is set aside with a

direction to the Assistant Labour Commissioner, Pulwama to issue

notice to the legal heirs of the deceased employees who died in

accident on 21.07.2022 during course of their employment in the brick

kiln of respondent No. 2. The Assistant Labour Commissioner,

Pulwama shall also issue notice to the petitioner Company and

proceed in the matter in accordance with law.

9. Disposed of.

(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR 4th October , 2023.

Ab. Rashid

                                Whether the order is reportable        Yes/No.