K.Masthani vs The Chairman
2021 Latest Caselaw 1626 Mad

                                                                      C.M.A.No.2028 of 2014

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 25.01.2021

                                                     CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                              C.M.A.No.2028 of 2014

                     1.K.Masthani

                     2.Minor Rabia

                     3.Minor Siddiq

                     Appellants 2 and 3 are rep.by
                     mother and natural Guardian                          .. Petitioners
                                                       vs.

                     1.The Chairman,
                       Chennai Water Supply & Sewerage Board,
                       Chintadripet, Chennai-600 002.

                     2.Parthasarthy,
                      Contractor,
                       Chennai Water Supply & Sewage Board,
                       Pumping Station,
                       Perambur Barracks Road,
                       Chennai-600 007.

                     3.The Commissioner for
                       Workmen's Compensation-I,
                       DMS Campus,
                       Teynampet, Chennai-10.                             .. Respondents


                     1/15


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                                                                               C.M.A.No.2028 of 2014


                     PRAYER : Civil Miscellaneous Appeal filed under Section 30(1) of
                     Workmen's Compensation Act, 1923, against the order dated 01.09.2012 of
                     the      Commissioner       for   Workmen's    Compensations-I,     Chennai,   in
                     W.C.No.145 of 2005.


                                     For Petitioner               : Mr.R.Vaigai
                                                                    for M/s.Anna Mathew

                                     For Respondent           :    M/s.N.Ramesh for R1


                                                          ORDER

This Civil Miscellaneous Appeal is filed against the order dated

01.09.2012 made in W.C.No.145 of 2005 passed by the Commissioner for

Workmen's Compensations-I, Chennai.

2. The Substantial questions of law raised in the Civil Miscellaneous

Appeal are that whether the 3rd respondent/Commissioner justified in

concluding that the death of the workman was not during and in the course

of his employment, when no evidence was lead by the respondents to prove

that the workman was not at work when the death occurred; Whether the

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Commissioner for Workmen's Compensation can rely upon a document

produced by the 1st respondent which was not marked through any witness

and reject the claim on that basis; Whether an unmarked document is

admissible in evidence by the Commissioner of Workmen Compensation to

arrive at any finding against the appellant; On the failure of the respondents

to produce the statutory registers for employment of contract labour to be

maintained by the respondents as per the Contract Labour(Regulation and

Abolition), 1971 and Rule 78 of the Tamil Nadu Contract Labour

(Regulation and Abolition) Rules, 1975, should not the Commissioner of

the Workmen Compensation drawn an adverse inference against the

respondents and in favour of the appellant; Whether the Commissioner of

Workmen Compensation could have admitted in evidence, Ex.MW1 viz.,

the wage register for January 2003 to December 2003 produced by the 1st

respondent when the 2nd respondent in its Counter affidavit to I.A.No.65 of

2006 for production of said documents, specifically stated “no register,

muster roll or wage register were maintained by him or by the 1st

respondent”;

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3. Perusal of the substantial questions of law raised in the appeal by the

appellant reveals that some questions are purely based on the facts and the

point to be considered is whether the employer/employee relationship was

established for the purpose of awarding the compensation under the

Workmen Compensation Act. The appellants filed the application under

Section 10 of the Workmen's Compensation Act for grant of compensation

on the ground that the husband of the first appellant, during the relevant

point of time, was aged about 36 years and he was engaged to clean the

drainage pipes, cesspool, etc, in the pumping Station under the control of

the principal employer. The said employee/Khaleel Khan was paid daily

wage of Rs.40/-, which is far below the minimum wages. The second

opposite party/one Parthasarathy was the Registered Contractor under the

first respondent/Chennai Water Supply and Sewerage Board. On

08.08.2003, the husband of the first appellant had gone to work, but

unfortunately, around 12.00 noon, he was brought home dead by his co-

employees. The appellant was shocked to see that her husband who had

gone to work in good health, had returned dead. The deceased left behind

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his widow and two minor children, aged about 9 and 8 years, during the

relevant point of time. The appellant contacted the contractor to find out the

manner in which her husband lost his life. However, the second respondent

was evasive and did not give any proper explanation. But the Contractor

insisted upon the appellant to receive a sum of Rs.5,000/- as compensation

for the death of her husband. It is contended that the contractor paid a sum

of Rs.5,000/- apart from Rs.1,000/- which was paid for funeral expenses. An

acknowledgment was obtained from the appellant for the payment of

Rs.6,000/-.

4. The learned counsel for the appellants mainly contended that the first

appellant is an illiterate Muslim woman and she was not aware of the

procedures. The cause of death was also not known to the first appellant.

Thus, she filed an application seeking compensation.

5. The first respondent/Chennai Water Supply & Sewerage Board filed a

counter statement stating that as per Section 3 of the Workmen

Compensation Act, the liability of paying compensation arouse only if

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personal injury is caused to a workman by accident arising out of and in the

course of employment. It is contended that the husband of the appellant was

not employed on that day of his demise. Only, on receipt of notice from this

Court, the demise of the said individual is made known to the first

respondent/Board. It is contended by the Board that the

deceased/Khaleeskhan Basha Bai was not on employment from 13.05.2003

with the second respondent/Contractor. Thus, it is incorrect to state that the

said individual was employed by the Board through the second

respondent/Contractor. The deceased/individual was not on employment

under the Contractor from 13.05.2003. Therefore, the question of payment

of wages does not arise at all. This apart, the deceased had not attended any

work after 13.05.2003 and the death of the individual occurred only on

08.08.2003. Therefore, the deceased is not entitled for compensation.

6. The Deputy Commissioner of Labour adjudicated the issues with

reference to the documents and evidence produced by the parties. The award

impugned in the present appeal reveals that the issues were framed whether

the death occurred during the course of employment or not and the legal

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heirs are entitled for compensation. As far as the said issues are concerned,

the Deputy Commissioner of Labour made a findings which reads as under:

kDjhuh; nfhhpa[s;sthW Kjyhk; vjph;kDjhuh; jdJ gpukhd thf;F K:yj;Jld; (vkrhM?1 $dthp 2003 Kjy;

                                   ork;gh;   2003      tiuahd          tUifg;      gjpntL            jhf;fy;
                                   bra;Js;shh;         ,jpy;          ,we;jth;      12/05/2003         Koa
                                   gzpg[hpe;Js;sjhf        Fwpgg; [      cs;sJ        nkYk;       kDjhuh;

gzpapd;nghJ gzpapil tpgj;jpy; ,we;jjw;Fz;lhd rpW Mjhu Mtznkh. nkYk; rhl;rpankh jhf;fy; bra;J kDjhuuhy; epUgpf;fhj epiyapy; vjph;kDjhuh;fs; chpa Mtz';fis jhf;fy; bra;ahjjhy; Vw;gl;l vjph;kiw epfH;tpdhy; kDjhuh; gzpg[hpe;jhh; vd fUj;jpy; bfhs;s KoahJ. nkYk; Kjyhk; vjph;kDjhuh; jhf;fy; bra;j 2006(5) Supreme Court Cases P.513-.d; go tpgj;J gzpapd;nghJ Vw;gl;lJ vd;gjid kDjhuhy; epUgpf;fg;gltpy;iy nkYk; 2008 SAR (Civil) 387-d; go kDjhuh; ,we;jjid gzpapdn; ghJ ,we;jjhf Cfj;jpd;

                                   mog;gilapy; jPh;khdpf;ff;TlhJ            vd;w thjk; ,t;tHf;fpw;F
                                   bghUj;jkhf cs;sJ/              vdnt kDjhuh; gzpapd; nghJ

Vw;gl;l gzpapil tpgj;jpy; ,we;jhh; vd kDjhuuhy;

                                   epUgpf;fhj       epiyapy;     kDjhuh;         ,Hg;gPL      VJk;      bgw



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                                                                                    C.M.A.No.2028 of 2014

jFjpa[ilath; ,y;iy vd jPh;khdpf;fpnwd;/ vdnt VGtpdh 2 kw;Wk; 3?f;F jPh;t[fhz mtrpakpyi ; y vd fUJfpnwd;/

,t;tHf;fpy; ,we;jth; gzpapil tpgj;jpy; ,we;jhuh vd;gjid kDjhuh; epUgpf;f flikg;gl;lth;. kDjhuh; jhf;fy; bra;Js;s (k/rh/M?1) Ftpd;jhd; Kcwk;kjp. K!;yPk; ey;ylf;f kahdk; 108 lhf;lh; mk;ngj;fh; fhny$; nuhL. brd;id?12 y; tH';fpa cly; mlf;f rhd;wpYk; ,we;j ,lk; HOME DEATH vd Fwpg;gplg;gl;Ls;sJ/ mLj;jjhf kDjhuuhy; jhf;fy; bra;ag;gl;Ls;s (k/rh//M?2) rkhjhd xg;g[jy; gj;jpuj;jpy; kDjhuUf;F ,uz;lhk; vjph;kDjhuh;

U:/6000-? mspj;J ,dp tU';fhy';fspy; fzthpd; ,wg;gpw;F gzk; nfhukhl;nld; tHf;F bjhlu khl;nld; vd bjhptpj;J xg;ge;j gj;jpuk; vGjg;gl;Ls;sjid kDjhuuhy; jhf;fy; bra;ag;gl;Ls;sJ/ ,jid ,uz;lhk; vjph;kDjhunu jahhpj;J jd;dplk; ifbahg;gk; bgwg;gl;ljhf kDjhuh; bjhptpj;jpUe;jhYk;. ,jpy; ,uz;lhk; vjph;kDjhuh; ifbahg;gk; ,y;yhj epiyapy; mtiu xU jug;gpduhf fUjp vGjpf;bfhLj;j ,e;j xg;ge;j gj;jpuk; bry;yhjJ nkYk; me;j xg;ge;j gj;jpuj;jpy; kDjhuUk; kw;w ,uz;L rhl;rpfs;

ifbahg;gkplL ; s;sdh;/ ,e;j xg;ge;j gj;jpuk; Vw;gl;l cz;ik

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epiyapid tpsf;fpl VJthf kDjhuh; xg;ge;j gj;jpuj;jpy; ifbahg;gkpll; ,U rhl;rpfisa[k; miHj;J tprhhpf;ftpy;iy/ nkYk; (k/rh/M/3) brd;id khefuhl;rp. MwhtJ tl;lk;. madhtuk;. brd;id?23 y; tH';fpa ,wg;g[r; rhd;wpy; ,we;j ,lk; 776 rj;jpathzp Kj;J efh;. ogpshf;. brd;id vd bjhptpf;fg;gl;Ls;sJ ,we;j tpgu';fs; kw;Wk; mlf;fk; bra;ag;gl;l tpgu';fis midj;jpYk; ,we;jth; tPlo; y; ,we;jjhfnt Fwpgg; plg;gl;Ls;sJ/ nkYk; ,we;jthpd; rhtpy; re;njfk; ,Ue;jpUe;jhy; ,we;jt[lndh my;yJ mjw;F gpwfhtJ fhty; Jiwapdhplk; g[fhh; mspj;J Kjy; jfty; mwpf;if gjpt[ bra;J eltof;if vLj;jpUf;fyhk;.

nkYk; ,we;jthpd; cliy gpnujg;ghpnrhjid bra;jpUf;fyhk; ,e;j eltof;iffis kDjhuh; bra;atpy;iy/

7. Perusal of the findings of the Deputy Commissioner of Labour in

award reveals that the death had not occurred during the course of

employment. In other words, on a particular day, whether the

deceased/workman was on employment or not itself had not been

established. As per the evidence, the deceased was not working with the

Contractor from 13.05.2003. However, the death occurred on 08.08.2003. In

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the absence of any evidence, it may not be possible to draw an inference, in

view of the fact that the workman was not on employment during the

relevant point of time, when he died. Mere payment of a sum of Rs.6,000/-

by the Contractor, based on the fact that the deceased was working under

the Contractor for some time, would not provide a right for the claimant to

get compensation. Therefore, the claimants are bound to establish, whether

the workman died during the course of employment and more so, he was

employed by the Contractor.

8. It is an admitted fact that the husband of the appellant was engaged by

the second respondent/Contractor as daily wage labourer. But it is

contended that he was not engaged by the said contractor after 13.05.2003.

Thus, it was not established on the date of death that the husband of the

appellant was on employment and the death occurred during the course of

employment.

9. The learned counsel for the appellant contended that the manual

scavenging was condemned by the Hon'ble Supreme Court of India and the

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Hon'ble Supreme Court of India in its judgment reported in (2014) 11 SCC

224 directed to identify the families of all persons who have died in

sewerage work (manholes, septic tanks) since 1993 and award

compensation of Rs.10 lakhs for each such death to the family members

depending on them. This being the Judgment of the Hon'ble Supreme Court

of India, the Deputy Commissioner of Labour ought to have considered the

fact that the deceased/workman is a daily wage labourer to perform

scavenging works. Therefore, the Board is liable to pay compensation under

the Workmen Compensation Act.

10. Though there is a force on the arguments advanced by the learned

counsel for the appellants, this Court is of the considered opinion that

atleast, a piece of evidence must be available enabling this Court to grant

compensation. In the absence of any proof, if compensation is granted,

undoubtedly, the same would create a wrong precedent and result in

violation of the provision of the Workmen Compensation Act itself. Certain

mitigating factors may be considered by this Court for grant of

compensation, as the Workmen's Compensation Act is a welfare legislation.

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However, a piece of evidence is required to establish that the workman died

during the course of employment. It is not necessary the the claimant should

produce all necessary documents, if any clinching document is available and

from and out of the said document, if the Court is able to visualize that the

death occurred during the course of employment, then the Court would not

hesitate for grant of compensation. Contrarily, in the case of no evidence, it

is not desirable to award compensation which would create a bad precedent

and courts cannot grant compensation on certain misplaced sympathy. As

far as the case on hand is concerned, the findings of the Deputy

Commissioner of Labour is unambiguous and in consonance with

established principles. The question of law raised with reference to the facts

deserves no merit consideration as the applicant, who approached the

Competent Authority under the Workmen Compensation Act, should

establish a prima facie case for grant of compensation. In the present case,

no such prima facie evidence is available enabling the Court to consider for

grant of compensation.

11. The learned counsel for the appellant made a submission that an

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advocate filed an affidavit stating that the deceased/husband of the appellant

had received an amount from the contractor. Therefore, the matter is to be

remanded back for re-trial for examination of fresh evidence and to file

additional documents. This Court is of the considered opinion that the claim

petition was filed in the year 2005 and the award was passed in the year

2012. The present Civil Miscellaneous Appeal was filed in the year 2014

and now, taken up for hearing. After this length of time, it is not preferable

to remand the matter. The Courts are always bound to decide the issues on

merits and in accordance with law. Remand of a case is an exception.

Remand cannot be done in a routine manner. Even Under Order XLI Rule

23 and Rule 23(A) of C.P.C, remand is to be made only if the trail Court

decided the case on preliminary issue. If the trial Court disposed of the case

on merits by considering the evidence and documents, then the remand

cannot be made under Order XLI Rule 23 of C.P.C. Order XLI Rule 24 of

C.P.C states that the appellate Court may decide the appeal finally, if certain

documents were not appreciated by the trial Court. This being the

principles to be followed for remand of matter, this Court is not inclined to

do so, after this length of time and the said remand would do no service to

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the cause of justice. This being the factum, the award dated 01.09.2012

passed in W.C.No.145 of 2005 stands confirmed and consequently, Civil

Miscellaneous Appeal stands dismissed. No costs.

25.01.2021

ssb Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order

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S.M.SUBRAMANIAM, J.

ssb

To

The Commissioner for Workmen's Compensations-I, Chennai.

C.M.A.No.2028 of 2014

25.01.2021

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