Karnataka High Court
The Chief Executive Officer And ... vs Ambavva W/O Shivaraya on 2 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.200471/2014 (WC)
C/W
MFA NO.200472/2014 & MFA NO.200473/2014
In MFA No.200471/2014
BETWEEN:
1. The Chief Executive Officer,
Zilla Panchayat,
Gulbarga.
2. The Executive Officer,
Taluk Panchayat,
Gulbarga.
3. The Panchayat Development Officer,
Gram Panchayat,
Farahabad.
.....Appellants
(By Sri.Ananth S.Jahagirdar, Advocate)
AND:
1. Shantayya S/o Gurupadayya Matapathi,
Aged about 45 years, Occ: Coolie,
2. Gouramma W/o Shantayya Matapathi,
Aged 42 years,
2
R/o Firozabad,
Tq. & Dist: Gulbarga-585 103.
.....Respondents
(By Sri. Santosh Biradar, Advocate for
C/Respondent No.1 & 2)
This MFA is filed under Section 30(1) of the Employees
Compensation Act, 1923 praying to allow this appeal and to
modify the judgment and award dated 28.08.2013 passed in
file No.WCR/45/2012 on the file of the Commissioner for
Workmen's Compensation, Gulbarga and to grant enhanced
compensation.
In MFA No.200472/2014
BETWEEN:
1. The Chief Executive Officer,
Zilla Panchayat,
Gulbarga.
2. The Executive Officer,
Taluk Panchayat, Gulbarga.
3. The Panchayat Development Officer,
Gram Panchayat, Farahabad.
.....Appellants
(By Sri.Ananth S.Jahagirdar, Advocate)
AND:
Ambavva W/o Shivaraya,
Aged about 45 years, Occ: Coolie,
R/o Firozabada,
Tq. & Dist: Gulbarga-585 103.
.....Respondent
(By Sri.Santosh Biradar, Advocate for C/Respondent)
3
This MFA is filed under Section 30(1) of the Employees
Compensation Act, 1923 praying to allow this appeal and to
modify the judgment and award dated 28.08.2013 passed in
file No. WCR/43/2012 on the file of the Commissioner for
Workmen's Compensation, Gulbarga and to grant enhanced
compensation.
In MFA No.200473/2014
BETWEEN:
1. The Chief Executive Officer,
Zilla Panchayat,
Gulbarga.
2. The Executive Officer,
Taluk Panchayat,
Gulbarga.
3. The Panchayat Development Officer,
Gram Panchayat,
Farahabad.
.....Appellants
(By Sri.Ananth S.Jahagirdar, Advocate)
AND:
Putalabai W/o Chandrasha,
Aged about 46 years, Occ: Coolie,
R/o Firozabada,
Tq. & Dist: Gulbarga-585 103.
.....Respondent
(By Sri.Santosh Biradar, Advocate for C/Respondent)
This MFA is filed under Section 30(1) of the Employees
Compensation Act,1923 praying to allow this appeal and to
modify the judgment and award dated 28.08.2013 passed in
file No.WCR/44/2012 on the file of the Commissioner for
4
Workmen's Compensation, Gulbarga and to grant enhanced
compensation.
These appeals having been heard and Reserved for
judgment on 27.05.2022, coming on for 'Pronouncement of
Judgment' this day, the court delivered the following:
JUDGMENT
Since all these three appeals are arising out of
common incident and common order, they are heard
together and common order is being passed.
2. These appeals are filed by the appellants
challenging the judgment and award dated 28.08.2013
passed in WCR No.45/2012, 43/2012 and 44/2012 by the
Commissioner for Workmen Compensation, Gulbarga
(hereinafter for short, referred to as 'Commissioner')
granting compensation of Rs.7,81,482/-, Rs.7,81,482/-
and Rs.8,04,328/- respectively in favour of the
respondents herein, who were the claimants before the
Commissioner.
3. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Commissioner.
4. The brief factual matrix leading to the case is
that, the sons of respondents were alleged to have
indulged in working as coolies under the appellants and
when they were engaged to clean the Well by using oil
engine, it emitted carbon dioxide, which filled in the
entire Well thereby suffocating the persons working in the
Well. Though immediately they were shifted to hospital,
they could not survive and died because of suffocation.
5. The claimants claiming to be the parents of
the deceased, filed the petitions before the
Commissioner for Workmen's Compensation at Gulbarga
on the ground that the deceased were employed under
the Panchayat for cleaning the Well and hence, they have
claimed compensation.
6. The appellants herein have disputed that
there is any relationship of Employer and Employee
between them and the deceased persons and further they
contended that they have not engaged the deceased for
cleaning the Well and thereby disputed their liability.
7. The Commissioner after recording the
evidence and after appreciating the oral and documentary
evidence has held that the deceased Basavaraja,
Chidananda and Sharanaiah were working under the
respondents/appellants herein and hence there was a
relationship of employee and employer between the
parties and as such allowed the claim petitions by
awarding compensation as referred above by common
judgment. Being aggrieved by this award, these three
appeals were filed by the appellants/claimants.
8. Learned counsel for the appellants herein
would contend that the deceased did not fall under the
definition of 'Workmen' under the Workmen
Compensation Act and as such, the appellants cannot be
saddled with the liability to pay compensation. It is
further contended that there was no relationship of
workmen and employee between the deceased persons
and the appellants and there is no material evidence to
show that the appellants have engaged the deceased
persons for cleaning the Well. It is also contended that
the income taken by the Commissioner and the multiplier
adopted by him is on higher side and hence, they dispute
the claim and sought for allowing the appeals, by
rejecting the claim petitions.
9. Per contra, the learned counsel appearing for
respondents/claimants would support the order of the
Commissioner contending that there is material evidence
on record to show that the deceased were engaged by
the appellants and the Well wherein the incident has
occurred is a public Well situated in front of the
Panchayat Office. He would also contend that the
Panchayat has also not produced any records pertaining
to the workmen engaged for different works and with-
holding this material document itself invites that the
adverse inference to be drawn against them. He would
also contend that the Commissioner has considered the
evidence on record in proper perspective and by applying
proper multiplier has awarded just compensation. He
would also contend that, it is a social and beneficial
legislation and as such, he has sought for rejection of the
appeals.
10. Having heard the arguments and after
perusing the records it is evident that, on 17.04.2011, in
front of the Gram Panchayat office in Firozabad Village,
while cleaning the Well, the oil engine being used and due
to emission of the carbon dioxide, five persons died
because of suffocation. Though in the appeal memo, the
appellants have tried to dispute this aspect, but the
police records as well as the post-mortem reports
establish that the incident did occur and five persons
died. These three petitions were filed claiming
compensations on account of death of three workmen.
The main contention of the appellants is that the
deceased were not employed by the Panchayat for
removing the silt from the Well. However, it is the fact
that the Well was situated in front of the Panchayat
Office and it is a public Well. Further, it is also evident
that it was the duty of the Panchayat to maintain the Well
properly and in good condition.
11. The claimants in their evidence have
reiterated the averments made in their claim petitions
and though they were cross-examined, nothing was
elicited in their cross-examination. The Secretary of the
Panchayat (Appellant No.3) was examined on behalf of
respondents and he disputes regarding the relationship of
'Workmen' and 'Employer'. But, in the cross-
examination, he admitted that, wherein the incident has
occurred, the Panchayat Grama Sabha was going on. It
is important to note here that it is a Well belonging to the
State and the alleged incident has occurred when
cleaning was going on in the Well, that too by using oil
pump. It is hard to accept the contentions of the
respondents/appellants herein that they were not aware
of this fact and they have not engaged anybody to clean
the Well. Even their conduct creates a doubt that when
cleaning of the Well situated in front of the Panchayat
office is going on by engaging some persons, they did not
even bother to ascertain as to who has authorised those
persons (deceased persons) to clean the Well. Further,
the Secretary has admitted that the records pertaining to
payment of wages on behalf of panchayat to the
workmen under various schemes were available in the
office. But, very interestingly they were not produced
before the Court. Why production of these material
documents were with-held by them is not at all
forthcoming and non-production of these documents
clearly establish that adverse inference is required to be
drawn against the appellants.
12. On the contrary, the 2nd witness examined on
behalf of appellants has specifically stated that the work
of removing the silt was undertaken by panchayat under
'Development Charges' and no individual person has
authorised this and it was being done in order to assist
public at large to use the Well. Further this 2nd witness
has also admitted that, he has also given statement
before the police that the deceased were paid daily wages
of Rs.350/- and he further admits that, only payment of
wage pertaining to the work done on that day is pending.
13. From Ex.P1(a) it is evident that RW 3
(appellant No.3) has written a letter to Appellant No.2 on
the date of incident itself i.e., on 17.04.2012, wherein it
is stated that the Well was used for drinking water and
the work was undertaken for removing the silt as per the
decision taken by the President and the Members of the
Panchayat in order to avoid problem for drinking water,
so that they can include these expenses in any other
developmental scheme. This admission disclose that the
decision was taken by the President and the Members of
the Panchayat and that has been executed. Further
Exs.P3, P6, P7, P8 and P9 disclose that these witnesses
have given statements before the police stating that the
Well is a public Well belonging to the Government and the
work of removing silt was undertaken on behalf of the
Government. It is also evident from these statements
that the President and Members have taken a decision in
this regard to get the Well de-silted in order to avoid
drinking water problem, as the summer was approaching
fast. This evidence clearly establish that the death has
occurred when these three persons were engaged in de-
silting the Well and admittedly, it is a public Well used for
drinking water. No personal or vested interest of any
individual person is there and it is being done for public
use only. It was the primary responsibility of the
appellants to provide basic amenities to public and also
to maintain the Well to provide proper drinking water to
public at large.
14. The death was occurred when de-silting of the
Well was undertaken because of using oil pump and the
oil engine emitting the carbon dioxide resulting in
suffocation of the workmen. This is again consolidated by
the post-mortem report. The appellants have with-held
the material records pertaining to the Wage Register
maintained in the Panchayat office and on the contrary,
the correspondence between the appellants inter-se
establish that it was the work undertaken by the
Panchayat on behalf of the State. Further, it was the
duty of the Panchayat to provide basic amenities.
Further, admittedly the alleged Well is situated exactly in
front of the Panchayat office in Firozabad and when such
work is being undertaken by using oil pump, the alleged
incident has occurred and at the time, the Panchayat
meeting was going on. As such, it is hard to accept that
the appellants does not have any knowledge about the
happening of incident and it is evident that they
themselves have undertaken this work. Further, it is also
evident that the State has also paid the ex-gratia
amount of Rs.1,50,000/- to the family of each of the
deceased on account of they were only earning members
in their family. The conduct of the appellants in avoiding
liability clearly establish that they are deliberately
disputing the relationship of 'workmen' and 'employer'
between them and deceased.
15. Apart from that, even on the quantum, the
Commissioner after considering the age and income of
the deceased has applied the proper multiplier and has
arrived at just compensation. No material evidence is
placed by the appellants to show that the multiplier and
income taken was on higher side. Under these
circumstances, looking from any angle, the appellants
are failed to substantiate their contentions. Apart from
that the appellants being representing the State, are
under the legal obligation to pay appropriate
compensation to the Legal Heirs/dependents of the
deceased in view of their untimely death while
cleaning/de-silting the public Well.
16. Considering these facts and circumstances, it
is evident that judgment and award of the Commissioner
does not suffer from any infirmity nor erroneous so as to
call for interference. Further, it is also a social legislation
for benefit of workmen and flimsy grounds to avoid
liability cannot be entertained. As such, the appeals are
devoid of any merits and does not survive for
consideration, and since they are meritless, they need to
be rejected. As such, I proceed to pass the following:-
ORDER
In the result, MFA No.200471/2014, MFA
No.200472/2014 and MFA No.200473/2014
(WC) are dismissed by confirming the
judgment and award dated 28.08.2013 passed
by the Commissioner for Workmen's
Compensation, Gulbarga in WCR No.45/2012,
43/2012 and 44/2012 by the Commissioner for
Workmen's Compensation, Gulbarga.
Sd/-
JUDGE
KGR*
