Narbadiya Bai vs Ganshyam Choudhry
2023 Latest Caselaw 4458 MP

                             1            M.A.No.1593/2013



      IN THE HIGH COURT OF MADHYA
                 PRADESH
              AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 21st OF MARCH, 2023
               MISC. APPEAL No. 1593 of 2013
BETWEEN:-

NARBADIYA BAI W/O LATE SHRI BRAMHA
SINGH, AGED ABOUT 62 YEARS, R/O
JAMGAON, POST OFFICE BASTRA THANA
KUNDAM DISTT. JABALPUR (MADHYA
PRADESH)


                                          .....APPELLANT
(BY SHRI RAJESH SONI - ADVOCATE )

AND

1.    GANSHYAM CHOUDHRY S/O SUMMA
      CHOUDHARY, BUILDING THEKEDAR,
      AGED ABOUT 57 YEARS, HOUSE NO.
      3757 NAI BASTI KANCH GHAR
      JABALPUR (MADHYA PRADESH)

2.    PONAM PATHAK W/O SHRI ANAND
      MOHAN PATHAK H.NO. 1647/02
      REJENDER PRASAD WARD EAST
      NIWAR GANJ JABALPUR (MADHYA
      PRADESH)



3.    ANAND MOHAN PATHAK S/O SHRI
      GOPAL DAS PATHAK, H.NO. 1647/02
      RAJENDER PRASAD WARD EAST
      NIWAR GANJ JABALPUR (MADHYA
      PRADESH)


                                        .....RESPONDENTS
(NONE FOR THE RESPONDENTS )
...................................................................................................
                                  2                   M.A.No.1593/2013


      This appeal coming on for order this day, the court passed the

following:

                              ORDER

This misc.appeal under section 30 of Workman Compensation Act, has been filed by the appellant against the order dated 19.01.2013 passed by Commissioner, Workman Compensation, Labour Court, Jabalpur in Case No.85/2002/FATAL, by which the respondent nos.2 and 3 have been exonerated from the liability.

2. The facts necessary for disposal of the present appeal in short, are that the appellant filed a claim under the Employees Compensation Act on the ground that the deceased Man Singh was working under the supervision of Building Contractor Ghanshyam Choudhary S/o Shukru Choudhary and he was working at the site of Smt.Poonam Pathak. During the course of employment, one wall fell on Man Singh, as a result he sustained grievous injuries and ultimately succumbed to his death.

3. The Labour Court, after considering the evidence, decided the claim by order dated 19.01.2013 and exonerated the respondent nos.2 and 3 and held that the respondent no.1 is solely responsible for payment of compensation of Rs.2,40,526/- with interest @ 12% per annum.

4. Challenging the order passed by the Labour Court, it is submitted by the counsel for the appellant that since the respondent nos.2 and 3 were principal employers, therefore, they have been wrongly exonerated. It is true that the respondent no.2 was initially granted liberty to lead secondary evidence by relying upon the

photocopy of the agreement, but later on by order dated 03.10.2012, the respondent no.2 was directed to file the original copy of agreement which was executed between her and respondent no.1. But the original copy of the agreement was never filed and the Labour Court wrongly relied upon the photocopy of the appellant.

5. Heard the learned counsel for the appellant.

6. The Supreme Court in the case of Steel Authority of India Limited and others Vs. National Union Waterfront Workers and others reported in (2001) 7 SCC 1 has held as under :-

"71. By definition the term "contract labour" is a species of workman. A workman shall be so deemed when he is hired in or in connection with the work of an establishment by or through a contractor, with or without the knowledge of the principal employer. A workman may be hired: (1) in an establishment by the principal employer or by his agent with or without the knowledge of the principal employer; or (2) in connection with the work of an establishment by the principal employer through a contractor or by a contractor with or without the knowledge of the principal employer. Where a workman is hired in or in connection with the work of an establishment by the principal employer through a contractor, he merely acts as an agent so there will be master-and- servant relationship between the principal employer and the workman. But where a workman is hired in or in connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because he supplies workmen for any work of the establishment, a question might arise whether the contractor is a mere camouflage as in Hussainbhai case [(1978) 4 SCC 257 : 1978 SCC (L&S) 506] and in Indian Petrochemicals Corpn. case [(1999) 6 SCC 439 : 1999 SCC (L&S) 1138] etc.; if the answer is in

the affirmative, the workman will be in fact an employee of the principal employer; but if the answer is in the negative, the workman will be a contract labour."

8. The Supreme Court in the case of International Airport Authority of India Vs. International Air Cargo Workers' Union and another, reported in (2009) 13 SCC 374 has held as under :-

"38. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.

39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."

9. The Supreme Court in the case of General Manager OSD Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal and another reported in (2011) 1 SCC 635 has held as under :-

"10. It is now well settled that if the industrial adjudicator finds that the contract between the principal employer and the contractor to be a sham, nominal or merely a camouflage to deny employment benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee by holding that the workman is the direct employee of the principal employer. Two of the well- recognised tests to find out whether the contract labourers are the direct employees of the principal employer are: (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the Industrial Court answered both questions in the affirmative and as a consequence held that the first respondent is a direct employee of the appellant."

10. The Supreme Court in the case of Managing Director, Hassan Cooperative Milk Producer's Society Union Ltd. Vs. Assistant Regional Director, Employees' State Insurance Corporation reported in (2010) 11 SCC 537 has held as under :-

"30. Although the ESI Court in respect of the appellants in separate orders has recorded a finding that such workers work under the supervision of the principal employer and the said finding has not been interfered with by the High Court but we find it difficult to accept the said finding. The ordinary meaning of the word "supervision" is "authority to direct" or "supervise" i.e. to oversee. The expression "supervision of the principal employer" under Section 2(9) means something more than mere exercise of some remote or indirect control over the activities or the work of the workers.

31. As held in CESC Ltd. [(1992) 1 SCC 441 : 1992 SCC (L&S) 313] that supervision for the purposes of Section 2(9) is "consistency of vigil" by the principal employer so that if need be, remedial measures may be taken or suitable directions given for satisfactory completion of work. A direct disciplinary control by the principal employer over the workers engaged by the contractors may also be covered by the expression "supervision of the principal employer".

33. Exercise of supervision and issue of some direction by the principal employer over the activities of the contractor and his employees is inevitable in contracts of this nature and that by itself is not sufficient to make the principal employer liable. That the contractor is not an agent of the principal employer under Section 2(9)(ii) admits of no ambiguity. This aspect has been succinctly explained in CESC Ltd. [(1992) 1 SCC 441 : 1992 SCC (L&S) 313] with which we respectfully agree."

11. The Supreme Court in the case of CESC Ltd. and others Vs. Subhash Chandra Bose and others reported in (1992) 1 SCC 441 has held as under :-

"14.P.M. Patel case [(1986) 1 SCC 32 : 1986 SCC (L&S) 155] can also be no help to interpret the word 'supervision' herein. The word as such is not found employed in Section 2(f) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 but found used in the text of the judgment. It appears to have been used as a means to establish connection between the employer and the employee having regard to the nature of work performed. But what has been done in Patel case [(1986) 1 SCC 32 : 1986 SCC (L&S) 155] cannot ipso facto be imported in the instant case since the word 'supervision' in the textual context requires independent construction. In the ordinary dictionary sense "to supervise" means to direct or oversee the performance or operation of an activity and to oversee it, watch over and direct.

It is work under eye and gaze of someone who can

immediately direct a corrective and tender advice. In the textual sense 'supervision' of the principal employer or his agent is on 'work' at the places envisaged and the word 'work' can neither be construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all times and at each and every step of the work. A harmonious construction alone would help carry out the purpose of the Act, which would mean moderating the two extremes. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act. It is the consistency of vigil, the proverbial 'a stich in time saves nine'. The standards of vigil would of course depend on the facts of each case. Now this function, the principal employer, no doubt can delegate to his agent who in the eye of law is his second self, i.e., a substitute of the principal employer. The immediate employer, instantly, the electrical contractors, can by statutory compulsion never be the agent of the principal employer. If such a relationship is permitted to be established it would not only obliterate the distinction between the two, but would violate the provisions of the Act as well as the contractual principle that a contractor and a contractee cannot be the same person. The ESIC claims establishment of such agency on the terms of the contract, a relationship express or implied. But, as is evident, the creation or deduction of such relationship throws one towards the statutory scheme of keeping distinct the concept of the principal and immediate employer, because of diverse and distinct roles. The definition is well drawn in Halsbury's Laws of

England (Hailsham Edition) Vol. I at page 145, para 350 as follows:

"An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given to him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control and supervision of the principal."

And this statement of law was used with approval by this Court in Superintendent of Post Offices v. P.K. Rajamma [(1977) 3 SCC 94 : 1977 SCC (L&S) 374 : AIR 1977 SC 1677] ."

12. Therefore, the only question for consideration is as to whether the deceased was working under the direct control and supervision of the respondent no.1 or whether the respondent no.2 was the principal employer having any supervision on the deceased.

13. Admittedly, the respondent no.1 was proceeded ex parte and he did not appear before the Labour Court. The appellant has examined Sundariya Bai as a co-labourer. She has not stated that the labourers were working under the control of respondent no.2. Sunderiya Bai had stated that she does not know the respondent no.1 and she was employed by the respondent no.2. However, she has not stated anything as to whether the deceased was working under the

supervision and control of respondent no.2 or not? She has stated that the respondent no.1 was a Mason. She has not stated that the deceased Man Singh was working under the supervision of the respondent no.2; whereas it is the claim of the appellant herself that the deceased Man Singh was working under Building Contractor Ghanshyam. The appellant has failed to prove that the deceased Man Singh was working under the supervision of the respondent no.2. On the contrary, it is clear that he was working under the control and supervision of Building Contractor Ghanshyam Choudhary. In the light of the above preposition of law, it is clear that the appellant has failed to prove that the appellant no.2 is the principal employer.

14. Further, the respondent no.2 was granted liberty to lead secondary evidence by exhibiting the agreement executed between the respondents no.1 and 2. As per the agreement, the entire responsibility was of the respondent no.1 only. In an application seeking permission to lead secondary evidence, it was specifically pleaded by respondent no.2 that original copy of agreement is with respondent no.1, therefore, if respondent no.2 could not produce original copy of agreement in compliance of order dated 03.10.2012, then no adverse inference can be drawn against the respondent no.2, because by order dated 03.10.2012, the Labour Court had not reviewed the order dated 26.07.2012. Further, the respondent no.1 has not come forward to claim that he was not the Contractor and only the respondent no.2 was making payment of salary to the deceased apart from supervising and controlling his work. Even otherwise this Court has come to a conclusion that respondent no.2 was not Principal Employer.

15. No other argument is advanced by the counsel for the appellant.

16. As no substantial question of law arises in the present appeal, accordingly, order dated 19.01.2013 passed by Commissioner, Workman Compensation, Labour Court, Jabalpur in Case No.85/2002/FATAL is hereby affirmed.

17. The appeal fails and is hereby dismissed.

(G.S.AHLUWALIA) JUDGE TG/-

TRUPTI GUNJAL 2023.03.24 12:05:16 +05'30'