DATED : 14.11.2008

C O R A M

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

C.M.A.No.1549 of 2001

Manager

UCO Bank

ICF Branch

Chennai 600 038 ... Appellant

Vs.

A.Kumar

No.29, Pattachari Street

Ayanavaram

Chennai 600 033 ... Respondent

This Civil Miscellaneous Appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923 as against the order of the Commissioner for Workmen's Compensation - I/Deputy Commissioner of Labour - I, Chennai dated 06.06.2001 made in W.C.No.58/98.

For Appellants : Mr.Srinath Sridevan

For Respondent : Mr.M.Ramamoorthy

J U D G M E N T

The opposite party in W.C.No.58/98 on the file of the Commissioner for Workmen's Compensation-I/Deputy Commissioner of Labour-I, Chennai has brought-forth this appeal under Section 30 of the Workmen's Compensation Act against the order of the said Commissioner dated 06.06.2001 directing the appellant herein/opposite party to pay a sum of Rs.1,24,788/- as compensation for the injuries sustained by the respondent herein/claimant.

2. The respondent herein/applicant had preferred a claim on the file of the Commissioner for Workmen's Compensation-I/Deputy Commissioner of Labour-I, Chennai under Section 10 of the Workmen's Compensation Act in W.C.No.58/98 for the injuries sustained by him on 04.12.1997 from the appellant herein/ opposite party making the following allegations:- The respondent herein/applicant is a "Kal Thatcher" and he was engaged by the appellant/opposite party to do some plumbing work in its office building. He was asked to bore a hole in the roof wall of the bank building and on 04.12.1997 while he was doing so, he sustained electric shock which ultimately led to a permanent disability at the rate of 60%. The respondent herein/ applicant was engaged by the manager of the appellant bank/opposite party on daily wage basis at the rate of Rs.140/- per day. Subsequent to the accident, the respondent's/applicant's services were terminated. He was aged about 30 years at the time of accident. A claim was made against the respondent/opposite party through 'Nirman Mazdoor Panchayat Sangam', but the appellant/ opposite party did not even give a reply. Therefore, the respondent/applicant was constrained to move an application for compensation under Section 10 of the Workmen's Compensation Act before the Commissioner for Workmen's Compensation against the appellant/opposite party.

3. The claim was resisted by the appellant/opposite party by putting in a counter statement denying the averments made in the application to the effect that the respondent/ applicant was a workman under the appellant bank and hence he was entitled to claim compensation under the Workmen's Compensation Act from the appellant/opposite party. It was also contended therein that the appellant/opposite party never engaged the respondent/applicant to carry out the alleged plumbing work in the office building of the appellant/opposite party; that on the other hand, one Jayakumar, a resident of Chakravarthy Nagar, Ayanavaram, Chennai and plumber by profession alone was engaged by the appellant bank/opposite party to lay a pipe for giving connection from the overhead tank to the water cooler fixed in the first floor of the building; that the said Jayakumar carried out the work and received remuneration for the said work; that there was no necessity, whatsoever, for any one to bore the roof as alleged by the respondent/applicant; that the respondent/applicant appeared to be a friend of Jayakumar and he seemed to have sustained a mild electric shock and that there was no occasion for the appellant/opposite party to give treatment to the appellant. The appellant/opposite party had also denied the alleged disability sustained by the respondent/applicant. The appellant/opposite party also submitted in the counter statement that even if the respondent/applicant might have suffered any disability, the same was not the result of any accident arising out of and in the course of his employment under the appellant/opposite party and that hence the claim made by the respondent/applicant for compensation against the appellant/opposite party was not maintainable either in law or on facts. It was also contended therein that the respondent/applicant was not entitled to a sum of Rs.3,89,000/- as claimed by him as compensation. Based on the said pleadings, the appellant/opposite party had prayed for the dismissal of the claim petition preferred by the respondent/applicant.

4. The lower authority, namely Commissioner for Workmen's Compensation, Chennai conducted an enquiry in the said workmen's compensation case in which three witnesses were examined as A.W.1 to A.W.3 and five documents were marked as Ex.A1 to Ex.A5 on the side of the respondent herein/applicant, whereas one witness was examined as R.W.1 and one document was marked as Ex.B1 on the side of the appellant herein/opposite party. The learned Commissioner for Workmen's Compensation, after considering the evidence, came to the conclusion that the petitioner was a workman under the appellant/opposite party and that he met with an accident arising out of and in the course of his employment under the appellant/opposite party which resulted in 50% disability. Consequently the Commissioner passed an order directing the appellant/ opposite party to pay a sum of Rs.1,24,788/- as compensation to the respondent/applicant together with an interest at the rate of 12% per annum.

5. Aggrieved by and challenging the said order of the learned Commissioner for Workmen's Compensation - I, Chennai, the appellant/opposite party has brought-forth this appeal on various grounds set out in the memorandum of appeal.

6. An appeal under Section 30 of the Workmen's Compensation Act against the award of the Commissioner for Workmen's Compensation shall lie to the High Court only on a substantial question of law. Hence it goes without saying that no appeal shall lie on a question of fact. However, when a finding on a question of fact is perverse, then the same shall assume the character of a substantial question of law. At the time of admission of the civil miscellaneous appeal, the following two questions were framed as substantial questions of law involved in the appeal:- i. Whether the respondent as a casual worker having worked for only one day, will become a worker under the appellant Bank within the meaning os Section 2 of the Workmen's Compensation Act, 1923?

ii. Whether the reliance on Section 12(2) of the Act will be correct in law to award compensation to the respondent on the ground that he would be considered as an employee under P.W.3 as contractor when their relationship had been denied by the respondent?

7. It is the case of the respondent/applicant that he was a workman directly engaged by the appellant/opposite party to do plumbing work in the bank building of the appellant/opposite party on daily wages at the rate of Rs.140/- per day and that he met with an accident arising out of and in the course of his employment under the appellant/opposite party. The contention of the respondent herein/applicant was that on the fateful day, namely 04.12.1997, while the respondent/applicant was engaged in drilling a hole in the roof of the building, he sustained electric shock. The same has not been specifically denied. On the other hand, it is the specific contention of the appellant/opposite party that there was no privity of contract between the appellant/opposite party and the respondent/applicant; that the respondent/applicant was not at all engaged by the appellant/opposite party to do any work; that the claim of the respondent/applicant as if he was a workman under the appellant/opposite party was totally a false one; that one Jayakumar, a plumber was engaged on contract basis by the appellant/opposite party to do some plumbing work in the bank building to give a pipe connection from the overhead tank to the water cooler in the first floor of the building; that the respondent/applicant who happened to be a friend of said Jayakumar, while helping him sustained a mild electric shock and that since there was no privity of contract between the appellant/opposite party and the respondent/ applicant, the claim of compensation made under Section 10 of the Workmen's Compensation Act against the appellant/opposite party should be rejected as not maintainable. The respondent/applicant examined one Dr.J.R.R.Thyagarajan as A.W.1. The respondent/applicant himself deposed as A.W.2. A.W.3 Jayakumar is the person mentioned by the appellant/opposite party as the plumber engaged by the bank on contract basis to do some plumbing work in the bank building.

8. The respondent herein/applicant (A.W.2) would state that he was engaged by the manager of the appellant bank and he was asked to drill a hole on the roof of the second floor of the bank building and that while he was doing so, he suffered an electric shock as a result of which he sustained injuries leading to permanent disability. A.W.1 has spoken about and the nature of accident, nature of injury and permanent disability sustained by the respondent herein/applicant. Even though the respondent herein/applicant, in his evidence in chief might have stated that he was engaged by the manager of the appellant bank, in the cross-examination he would state that he did not have any document to show he was engaged by the manager on daily wage basis at the rate of Rs.140/- per day. If at all it is true that he was engaged as a daily wager or on adhoc basis in the bank, he would have got documents to show that he was engaged by the Manager of the bank. How long was he employed as a worker in the appellant bank? - has not been clearly spoken to by the respondent herein/applicant. Not even a scrap of paper has been produced to show any payment received by the respondent herein/applicant from the appellant bank.

9. Jayakumar who was examined as A.W.3 has stated that he alone was engaged by the Manager of the appellant bank and that he did not engage the respondent/applicant as his helper. On the other hand, the manager of the appellant bank was examined as R.W.1. He would clearly state that he engaged A.W.3 Jayakumar a plumber to give pipe connection from the overhead tank to the water cooler on 04.12.1997 for one day alone; that a sum of Rs.485/- was paid to Jayakumar towards material cost and labour charge. For the payment of Rs.485/- the said Jayakumar has issued Ex.B1 receipt. But he would contend that the said amount was paid only as material cost and he was paid a further sum of Rs.200/- as labour charge for which no receipt was obtained. Ex.B1 would show that the said amount of Rs.485/- was paid to A.W.3-Jayakumar towards material cost as well as labour charge.

10. The learned counsel for the appellant/opposite party, while submitting his arguments, contended that even though the respondent/applicant had claimed to have been employed directly by the Manager of the appellant bank when he met with the accident, the learned Commissioner for Wokemen,s compensation did not believe the same and on the other hand came to the conclusion that the appellant bank engaged only a plumber by name Jayakumar and the said Jayakumar, in turn, engaged the respondent/applicant to assist him; that the same was the reason why the learned Commissioner had held the said Jayakumar and the appellant bank to be the immediate employer and principal employer respectively; that hence the rejection of the respondent's/applicant's claim to have been directly engaged by the bank had become final. The learned Commissioner for Workmen's Compensation has made the following observations, which is reproduced in the very same vernacular: " jpU b$af;Fkhh; xU gpsk;gh;/ mth; FHha; rk;ge;jg;gl;l ntiyiajhd; bra;thh;/ igg; ,izg;g[ bfhLg;gjw;F nky;jsj;jpy; Xl;il nghLtjw;F. Rth;fspy; Xl;il nghLtjw;F jsj;ij-kw;Wk; Rth;fis cilg;gjw;F fy; jr;rh; njit/ fy; jr;rh; ,y;yhky; vj[h;kDjhuh; bfhLj;j ntiyia gpsk;gh; jpU b$af;Fkhh; xUtuhy; kl;Lk; bra;aKoahJ/ Mifahy; jpU b$af;Fkhh; mtUf;F cjtpahf ,e;j ntiyf;F kDjhuiu Tl;o te;J ,Uf;fpwhh; vd;gJ kDjhuh; jug;gpy; jhf;fy; bra;ag;gl;Ls;s k/rh/M/5y; ,Ue;J bjhpfpwJ/" Ex.A5 is a copy of the letter in reply to the representation made by the State President, "Nirman Mazdoor Panchayat Sangam", Ayanavaram, Chennai-23. In the said letter it was made clear that the bank did not directly engage the respondent/applicant to do any work; that there was no privity of contract between the appellant bank and the respondent/claimant and that the contractor by name Jayakumar, engaged to do plumbing work seemed to have engaged the respondent/applicant to assist him. Only after accepting the said contention of the appellant bank, the learned Commissioner for Workmen's Compensation has chosen to hold the appellant/opposite party liable to pay compensation to the respondent/applicant as a principal employer by virtue of Section 12(1) of the Workmen's Compensation Act. It shall be obvious from the following observation made by the Commissioner for Workmen's Compensation in his order which is impugned in this appeal: " vjph;kDjhuh; jpU b$af;FkhUf;F xg;ge;j mog;gilapy; gpsk;gp'; ntiy bfhLj;jpUe;jhYk;. MtUld; te;j cjtpahsUf;F tpgj;J Vw;gl;lhy;. gphpd;rpgy; vk;g;shah; vd;w Kiwapy; vjph;kDjhuh; ntiyahy; ,Hg;gPl;Lr; rl;lk; 1923. gphpt[ 12(1)d; fPH; ,Hg;gPL tH';f bghWg;g[ilath; vd;W Kot[ bra;fpnwd;/ vdnt ,e;j tpgj;jpw;F ,Hg;gPl;Lj; bjhif kGtija[k; vjph;kDjhuh; tH';f ntz;Lbkd;W cj;jutpLfpnwd;/"

11. For all the reasons stated above, this court comes to the conclusion that the learned Commissioner for workmen's compensation has given a clear finding on the question of fact that the respondent's/applicant's claim of having been directly engaged by the appellant bank/opposite party as a workman was not true and that A.W.3 - plumber Jayakumar alone was directly engaged by the appellant bank and the said Jayakumar, in turn, engaged the respondent/applicant to assist him. Only in view of such a finding, the learned Commissioner for Workmen's Compensation held the said Jayakumar to be immediate employer and the appellant bank to be the principal employer to fix the liability for payment of compensation to the respondent/claimant, on the appellant under Section 12 of the Workmen's Compensation Act. Therefore, the findings of the learned Commissioner for Workmen's Compensation that there was no privity of contract between the appellant and the respondent and that the respondent/claimant cannot be construed to be a worker directly engaged by the appellant/opposite party have become final.

12. The next question to be considered shall be whether the appellant/opposite party could be construed to be the principal employer. It is not in dispute that A.W.3 - Jayakumar was engaged to give a pipe connection from the overhead water tank to the water cooler fixed in the first floor of the bank building. The appellant/opposite party has also admitted that the respondent/claimant was a person engaged by A.W.3 - Jayakumar to assist him in accomplishing the work assigned by the bank to him, namely providing pipe connection to the first floor from the overhead tank of the bank building. It is also not in dispute that while trying to make a hole on the roof, the respondent/claimant had an electric shock pursuant to which he was treated in the hospital. Only for the said injury and its consequences, the respondent/applicant has claimed compensation. The entrustment of the plumbing work by the bank to A.W.3 - Jayakumar has been admitted. If the said work was in relation to the trade or business of the appellant/opposite party, then the appellant bank shall be liable as a principal employer, while A.W.3 shall be the immediate employer. If the said work entrusted to A.W.3 does not have any connection with the trade or business of the appellant bank, then the appellant shall not even be a principal employer liable to pay compensation.

13. In this regard, the learned counsel for the appellant/opposite party would contend that in view of the stand taken by the appellant that the respondent/claimant was a person engaged by the independent contractor (A.W.3), before ever mulcting the liability on the appellant, the Commissioner should have impleaded the said Jayakumar as a party to the proceeding. It is the further contention of the learned counsel for the appellant that the work entrusted to A.W.3 - Jayakumar was not one in connection with the trade or business of the appellant and hence the application for compensation made against the appellant should have been straight away dismissed and that in the alternative, the contractor, namely Jayakumar should have been impleaded by the Commissioner as an opposite party in the application for compensation under the Workmen's Compensation Act.

14. In support of the first contention that the work entrusted to Jayakumar was not connected with the trade or business of the appellant, the learned counsel relied on the judgment of a division bench of this court made in The Dean, Agricultural College and Research Institute, Kilikulam, Vallanad v. Tmt.S.Sakilabanu and others reported in (2003)3 M.L.J. 712. In the said case, construction of a hostel building for the Agricultural College had been entrusted to the P.W.D engineer, who in turn entrusted to work to an independent contractor. The independent contractor entrusted the same to a sub-contractor. A person employed by the sub-contractor died in the course of the construction work and hence a claim was made for compensation against the Dean of the Agricultural College and others. The division bench held that the Agricultural College was engaged in imparting education; that construction of the building was not the business or trade of the institution; that the construction work having been entrusted to the P.W.D contractor, he alone was the principal employer and sub-contractor under whom the deceased was working was the immediate employer.

15. Per contra, a division bench of Madhya Pradesh High court in a case between Assistant General Manager, State Bank of India and Asha Chouhan reported in 2004-II-LLJ 708 in which the facts similar to the case on hand were involved has held that maintenance of electricity was connected with the trade or business of the bank and since the accident occurred in the bank premises and the deceased therein having been engaged for the said work was a workman under the bank as per Section 2(1)(n) of the Workmen's Compensation Act. It was held therein, to exclude the person from the ambit of the term 'workman', two things needed to be proved - 1) that the employment was of casual nature and 2) that the person was employed otherwise than for the purpose of the employer's trade or business. If the said judgment of the Madhya Pradesh High Court is to be applied to the facts of the case on hand, one can have no doubt that the appellant bank shall be the principal employer and A.W.3 - Jayakumar shall be the immediate employer.

16. However in case of engagement of a worker through an immediate employer, the question cannot be conveniently decided without both the alleged principal and immediate employers being made parties to the proceedings. In this connection a division bench of this court in Madhanagopal alias Madhan v. Rasika Ranjani Sabha represented by its Secretary, Chennai and another reported in (2004) 1 M.L.J.277, confirmed the order of a learned single judge of this court, wherein the following observations had been made:- " No doubt, the principal employer is liable to pay the compensation awarded; but he is entitled to be indemnified by the immediate employer. For that purpose, the presence of the immediate employer before the Court is very much essential. Any order passed in his absence may not bind him and in the said circumstances, I feel that M/s.Selvam Brothers, who is the immediate employer is a necessary and proper party to the proceedings and the respondents 1 and 2 have taken proceedings in his absence. I feel, to meet the ends of justice, the respondents 1 and 2 must be given an opportunity to implead the immediate employer as a party to the proceedings, for which, the matter has got to be remanded back to the Commissioner, Workmen's Compensation for proper adjudication." The following observations had been made in the said case by the division bench:

" absolutely there is no dispute that this appellant had entrusted the work of painting and renovation work to one M/s.Selvam Brothers. It is also not in dispute that the injured workman was engaged for painting the premises of Sabha by M/s.Selvam Brothers. So, the second respondent - Sabha is the principal employer and M/s.Selvam Brother is the immediate employer. A person who employs others or entrust his work to others for execution in respect of his affairs or business could very well be proceeded in terms of Sec.12. Sec.12 obviously include that the liability for compensation is ultimately of contractor or employer who engaged the workman. So far as the workman is concerned, he is entitled to recover the same from the principal employer. The principal employer has in turn a statutory right to indemnify himself by recovering the same from the immediate employer."

17. The learned counsel for the appellant relying on the said judgment contended that the learned Commissioner for Workmen's Compensation should have impleaded A.W.3 - Jayakumar as the immediate employer and then decided the case; that the failure on the part of the Commissioner for Workmen's Compensation to do so would make his order liable to be set aside and that the proper course to be adopted in such circumstances was to remit the case back to the Commissioner for Workmen's Compensation to decide the matter afresh after giving an opportunity to the respondent/applicant to implead the alleged immediate employer as a party to the proceedings and then decide the matter on merit. This court is in complete agreement with the said contention raised by the learned counsel for the appellant.

18. In view of the foregoing discussions, this court is of the considered view that the order of the learned Commissioner for Workmen's Compensation directing the appellant/opposite party to pay a sum of Rs.1,24,788/- as compensation to the respondent/applicant deserves to be set aside and after setting aside the same, the matter shall be remitted back to the learned Commissioner for Workmen's Compensation for fresh disposal after giving an opportunity to the respondent/applicant to implead A.W.3-Jayakumar as a party to the proceeding.

19. In the result, the appeal is allowed in part and the order of the learned Commissioner for Workmen's Compensation dated 06.06.2001 directing the appellant/opposite party to pay a sum of Rs.1,24,788/- as compensation to the respondent/applicant is set aside. The matter is remitted back to the learned Commissioner for Workmen's Compensation for fresh disposal after giving an opportunity to the respondent/applicant to implead A.W.3-Jayakumar as a party to the proceeding. 14.11.2008

Index : Yes/No

Internet : Yes/No

asr

To

The Commissioner for Workmen's Compensation

(Deputy Commissioner of Labour-I)

Chennai

P.R.SHIVAKUMAR, J.

asr/

JUDGMENT

IN C.M.A.No.1549/2001