Geetanjali Jena & Others vs Junior Engineer
2021 Latest Caselaw 3278 Ori

                          ORISSA HIGH COURT: CUTTACK

                               F.A.O. No.234 of 2012

         In the matter of an Appeal under Section 30 of the Workmen's
         Compensation Act, 1923;

                                          ----------

Geetanjali Jena & Others ... ... ... Appellants

-versus-

         Junior Engineer, Electrical, NESCO,
         Jajpur and Others                  ...          ...       ...         Respondents


             For Appellants                 : M/s. D.K.Mohapatra & L.Kavi.


             For Respondent                 :    M/s.Ramakanta Acharya &
                                                     B.Barik.
                                                     (For Respondent nos. 1 to 3)

                               Date of Hearing      : 25.02.2021
                               Date of Judgment : 05.03.2021


             THE HONOURABLE MR. JUSTICE BISWANATH RATH


Biswanath Rath,J.       This    is   an   appeal    under    Section      30   of   the

        Workmen's Compensation Act, 1923.

2. Brief fact involving the appeal is that the wife, old

parents and minor children of the deceased workman filed W.C.

97-D/2002 before the Commissioner for Workmen's

Compensation-cum-Deputy Labour Commissioner, Cuttack

alleging that the deceased working as labourer in the office of

the respondent no.1 for over 12 years. On 12.2.2002, the

deceased-workman while working over a electric pole near

Mouza-Sitaleswar in Jajpur Town Section Office met with an

accident by getting electric shock fell down on the ground

sustaining serious bodily injuries resulting death claimed to be

arising out of and in course of employment. It is on the premises

of particular remuneration being received by the deceased at the

relevant point of time, claim application was filed by the legal

heirs of the deceased. It also came to light that involving said

accident, U.D. Case No.8 of 2002 was also registered by the

Police. Neither the Commissioner in judgment nor appeal

memorandum have filed by the establishment brings anything on

the written statement if filed by the establishment. In the trial

proceeding it however comes to light that in the trial the

claimants examined 4 witnesses and also filed several documents

by way of exhibits and on the contrary, the opposite party, i.e.

the present appellant no.1 also filed some documents and

adduced oral witness as OPW Nos.1 to 3 to controvert the claim

of the claimants. In the first instance after considering the oral

version and documentary evidence of the parties, the

Commissioner for Workmen's Compensation-cum-Deputy Labour

Commissioner, Cuttack by its judgment dated 7.12.2005

answering the issues in favour of the claimants directed for

payment of compensation by the establishment-present

respondents. Being aggrieved by the judgment dated 7.12.2005

in W.C. Case No.97-D/2002, the establishment preferred an

appeal before this Court under Section 30 of the W.C. Act, 1923

bearing F.A.O.No.82 of 2006. This Court upon final hearing of

that F.A.O. being satisfied with the grounds raised by the

establishment, by order dated 8.8.2008 interfering in the

judgment dated 7.12.2005 remitted back the matter to the

Commissioner for re-consideration on the aspect of workmen the

employer and the employee relationship but, however, entering

into a fresh consideration and also giving reasonable opportunity

to the parties involved. It is on remand of the matter, the

claimants adduced P.W.5 and have also filed series of documents

to establish employer-employee relationship between the

deceased and the establishment whereas the opposite parties-

respondents during re-trial could not able to file any other new

documentary evidence but have adduced only oral evidence

through OPWs 4 and 5. It is basing on the further plea and

materials, W.C. Case No.97-D/2002 was freshly disposed of but,

however observing that there is no relationship between the

workman and the establishment thereby dismissing the W.C.

Case giving rise to the filing of the present appeal. In filing the

appeal, learned counsel appearing for the claimants-appellants

contested the case on the following grounds:

On the further adjudication of the proceeding even though

the claimants side produced further plea and evidence and in

absence of any cogent evidence at the instance of the

establishment, the view of the Commissioner in dismissing the

claim case remains contrary to the material available and

secondly, the impugned judgment remains contrary to the

material available on record.

3. Learned counsel appearing for the appellants next

submits that once the matter was remanded by the High Court

for fresh adjudication, there ought to have been re-disposal of

the claim case at least on the issue of incident in course and

arising out of employment under the establishment and then to

decide on the question of amount of compensation.

4. It is alleged that the commissioner even though

recorded the direction of the High Court in remand of the matter,

the Commissioner unfortunately adhering to the evidence of

P.W.5 decided the whole case. The sole observation of the

Commissioner is that the Establishment produced the document

relating to Wage Register and Attendance Register, which were

marked as EXts.'A' & 'B' respectively and in the said Registers,

the name of Late Paramananda Jena nowhere found and thus the

claimants failed in establishing Master & Servant relationship

between the parties. Learned counsel herein submits that for the

open remand of the case, it was required on the part of the

Commissioner to examine the whole evidence and come to

conclusion involving such important issue and thus contended

that there is failure of discharge of application of legal mind in

deciding such matter. Further taking this Court to the evidence of

some of the claimants witnesses, there is also attempt to

establish that there was clear material available to establish that

the deceased was a temporary employee and was engaged by

the establishment on the fateful day and for the nature of work

even performed by the deceased at the relevant point of time as

an NMR employee, the name of the deceased could not have

been found in the registers vide Exts. 'A' & 'B' since it involves

permanent employees. For the claimants being the legal heirs,

defending the case of the deceased involving a claim case, it is

submitted that for the material available through oral evidence

of several witnesses at the instance of the claimants, it is

contended that if the Commissioner could have taken all the

evidence into consideration the judgment of the Commissioner

would have been otherwise.

5. Sri Acharya, learned counsel appearing for the

respondent nos.1 to 3 on the other hand through the OPWs and

the material support through Ext. 'A' and 'B' attempted to justify

the judgment passed by the Commissioner. For the production of

the copy of the Exts.'A' & 'B' by the counsel appearing for the

appellants, giving reference to these documents, Sri Acharya,

learned counsel contended that there was absolutely no material

to establish that the deceased at any point of time was under

employment of the establishment. It is in this view of the matter,

Sri Acharya, learned counsel appearing for the respondent nos.1

to 3 while attempting to justify the impugned judgment prayed

for dismissal of the appeal.

6. Considering the rival contentions of the parties, this

Court finds the claim application involved an accident and death

of the deceased was due to coming in contact of electricity.

Reason of death also finds from the U.D. G.R. Case No.30 of

2002 due to shock and head injury. Final report in U.D.G.R. Case

No.30 of 2002 prepared under Section 174 Cr.P.C. has a clear

indication that in Police inquiry it has been ascertained that the

deceased fell down from the electric pole at Sitaleswar while he

was working there for which he received head injury and became

measures. Treatment though given, it could not see recovery

and finally the deceased died involving such accident. On scan of

the evidence also this Court finds apart from claimant, there has

been some witnesses on behalf of the establishment where one

Rajkishore Parida appearing as OPW 2 working as Junior Engineer

at the relevant point of time though disputed the engagement of

the deceased-Paramananda Jena but had made it clear that he

had no direct knowledge regarding accident involved herein on

12.2.2002. At the same time, on scrutiny of evidence of OPW 3

from the side of the Establishment, this Court finds this person

has also categorically stated that he had no knowledge regarding

the accident and employment of the deceased- Paramananda

Jena and clarified that the Junior Engineer is to take attendance

and distribution of work. Surprisingly the Junior Engineer even

though has been examined, but did bring record involving NMR

employees. The Executive Engineer has been subsequently

examined vide remand order as OPW-5. He has also made it clear

that neither he has any knowledge regarding the incident nor he

has personal knowledge about the employment and he has

deposed before the authority only on the basis of documents.

7. Now coming to scan the evidence from the side of

claimants, this Court finds apart from claimants' witnesses by

way of family members, the claimants have also examined some

official witnesses of the establishment. P.W.2 an employee

working in No.1 Section, No.1 Sub-Division at Jajpur as a lineman

has a clear evidence that Paramananda Jena is dead and he died

by electric shock while working on a pole belonging to Electricity

Department. This person has clearly stated that the accident

occurred on 12.2.2002 at 11.30 A.M. near Siteleswar while the

deceased was working on the electric pole, electric wire touched

on his head. He then fell down from the electric pole to the

ground. At that time, he and one Babuli Sethi, Staff, Gopal

Parida, Staff, J.E.No.1 Section along with other villagers were

there on the spot at the time of occurrence. This departmental

person again submits as follows:

"The work which was performed by us as ordered/

instructed by S.D.O., Gouranga Das. J.E. Parida Babu told the

deceased to work in the electric pole. The accident occurred

during the course of his employment."

8. Similarly, it also appears from the statement of

P.W.5, who claimed to be a retired employee in October, 2008

subsequent to the incident clearly stating that the deceased was

on duty on the effective date. This Court here finds in spite of two

of the departmental employees deposing on behalf of the

claimants both are claiming that the J.E. Parida Babu had the

instruction to the deceased to work at the relevant point of time.

It is at this stage, this Court finds the J.E. Parida Babu produced

as OPW No.2 by way of oral evidence attempted to resist such

incident taking place. This Court finds the evidence from the side

of the claimants particularly in absence of production of

documents involving NMR/Casual Employees runs heavier than

oral evidence at the instance of the establishment. It is in this

situation, this Court herein takes into account a decision of the

Kerala High Court in the case of Parameshwaran v.

M.K.Parameshwaran Nair, 1991 (1) T.A.C. 416. In considering

a case of casual engagement, the Kerala High Court in its Division

Bench through this judgment in paragraphs-10 and 11 come to

observe as follows:

"10. We have to bear in mind that the Workmen's Compensation Act is a beneficial social legislation which was enacted to supply the need to provide compensation to workmen sustaining employment injuries. A strict and ritualistic adherence to the procedural formalities of a trial is neither necessary nor desirable in deciding the question of entitlement of the injured employees for compensation. Nor are the Commissioners who administer that legislation qualified or competent to conduct a formal trial. A more realistric and less formal approach is called for from authorities functioning under this beneficial enactment. They shall not pretend themselves to be Courts and try to discover ways to defeat the very purpose of the enactment by adopting a totally negative approach to the claims which the disabled workmen advance before them. Many of the provisions of the statute point out to this need for absence of rigidity on the part of the Commissioner in dealing with claims for compensation. The need for such relaxation was emphasised in various decisions of this Court. We need cite only two of the decisions: In Mohammed Koya v. Balan [1987-I L.L.N. 352], a Division Bench of this Court held, that the requirement of a notice under S. !0 of the Act to the employer shall not be a reason for a rigid interpretation and that want of notice or any defect or irregularity in notice shall not bar entertainment of a claim if the employer had knowledge of the accident. In Pushpam v. Bonami Estate [1988-I L.L.N. 869], it was held, in Para. 10 at page 873, that:

"It is true, that S. 23 of the Workmen's Compensation Act confers all the powers of the Civil Court under the Code of Civil Procedure, for purposes of taking evidence on oath and the enforcing attendance of witnesses and compelling production of documents and material objects. That provision, however, does not constitute the Workmen's Compensation Commissioner as a "Court" for all purposes. Nor does that provision

have the effect of disabling the Commissioner from exercising such powers as to further the beneficial objects of that enactment. No provision in the Workmen's Compensation Act disabled an authority like the Commissioner from rectifying an apparent error in the application submitted by an illiterate applicant, whose claim for compensation was denied by the employer."

11. We hold that the Commissioner who was administering a beneficial legislation meant to advance the cause of employees for compensation in respect of employment injuries was obliged to act in furtherance of the intention of the statute and not to stultify the same by rigid and mechanical approaches. If the claimant before him was a workman as defined in S. 2(n) of the Act, he should have seen to it that the workman receives the compensation. It is unfortunate that he embrodled himself in a highly technical debate which would enable him to exclude the applicant from the purview of the definition by adopting an artificiality which was contrary to the terms of the statute as understood by this Court in Kochu Velu [1980-II L.L.N. 564] (vide supra). The inconsistencies in the plea and the evidence of the employer, his refusal to produce relevant evidence and the total unreliable nature of the evidence consisting of exhibits M1 and M2 which he produced should have aletred the Commissioner to be wary in accepting the defence of the employer. In the light of the decided cases, which we have referred to, we have no hesitation in holding that the claimant was a workman since he was employed in connection with the trade or business of the employer, though such employment was casual in nature. We hold further that the material evidence relating to his employment was deliberately kept back by the employer. We hold that the Commissioner should have drawn inferences adverse to the employer from the above conduct."

9. Similarly in the case of Leela Bai and Another v.

Seema Chouhan and Another, 2019 (I) T.A.C. 735 (SC), the

Hon'ble Apex Court in the nexus between accident and the

employment applying doctrine of notional extension of the

employment held the claimants have been wrongly denied

compensation. In case at hand, this Court finds there is no

dispute that the deceased died while working on the electric pole

belonging to the electricity Department. Therefore, a clear

inference can be drawn that unless the Department authorizes no

person can dare to ride into a electric pole to attend work.

10. In the above background of the case, this Court

while observing that judgment of the Commissioner in W.C. Case

No.97-D/2002 remains perverse being contrary to the evidence

on record and opposed the principle enunciated through the

decision of the Kerala High Court as well as the decision of the

Hon'ble Supreme Court indicated hereinabove, entering on the

determination of the Commissioner on employer & employee

relationship, holds there exists employer & employee relationship

and therefore, the establishment is liable to pay compensation.

11. The Commissioner for his finding on employer and

employee relationship has not attended to the issue of

compensation, this Court in setting aside the impugned judgment

is constrained to remit the matter back again to the

Commissioner for Workmen's Compensation-cum-Deputy Labour

Commissioner, Cuttack for re-adjudication only on the aspect of

amount of compensation to be paid to the claimants on account

of death of the deceased in course and arising out of

employment. For there is definite entitlement of compensation to

the claimants and keeping in view the sufficient loss of time, this

Court while directing the Commissioner for Workmen's

Compensation-cum-Deputy Labour Commissioner, Cuttack to

conclude the issue on the aspect of compensation within a period

of two months from the date of receipt of copy of this judgment

through either side, this Court also directs the respondents to

deposit a sum of Rs.2,00,000/- (Rupees Two lakhs) with the

Commissioner for Workmen's Compensation-cum-Deputy Labour

Commissioner, Cuttack within a period of two weeks hence and

the deposited amount shall be released in favour of the

claimants within a period of one week thereafter. This release will

however be subject to the adjustment in the ultimate

determination of compensation by the Commissioner for

Workmen's Compensation-cum-Deputy Labour Commissioner,

Cuttack.

11. In the result, the appeal succeeds to the extent

indicated hereinabove, but in the circumstance, there is no order

as to cost.

....................................

Biswanath Rath, J.

Orissa High Court, Cuttack The 5th day of March, 2021/sks.