F.A.O. No.3371 of 2011 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... F.A.O. No.3371 of 2011 Date of Decision: September 23, 2011 M/s Vinayak International ... Appellant VERSUS Smt. Urmila Devi and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.Sukant Gupta, Advocate for the appellant. Mr.Rakesh Lathwal, Advocate for respondents No.1 to 7. Mr.Jaswant Singh Bedi, Advocate for respondent No.8. Mr. Gautam Kaile, Advocate for respondent No.9. -.- MOHINDER PAL, J. Through this appeal, the appellant is challenging the order dated 24.02.2011 passed by the Commissioner, under the Workmen's Compensation Act (hereinafter referred to 'W.C. Act'), Circle-II, Sonepat. Vide the impugned order, the appellant was directed to pay the compensation of Rs.4,38,140/- within 30 days with further liability to pay the simple interest @ 12% per annum on the amount of compensation and penalty to the extent of 50% of compensation amount. F.A.O. No.3371 of 2011 2 Following substantial questions of law are framed in this case:- 1. Whether presentation of appeal without depositing the amount of compensation is mandatory? 2. Whether deceased Radhye Shyam was an employee under the appellant as per Section 2(e) of the Workmen's Compensation Act, 1923? If not so what is the effect. As per facts of this case, an agreement for construction of building at plot No.352-353, Phase-IV, Kundli District Sonepat (Haryana) belonging to appellant Vinayak International was executed on 06.03.2009 between Mr. Rajender Prasad Gupta and M/s Ram Construction Company respondent No.8 to carry out the construction work at the aforesaid premises. Respondent No.8 M/s Ram Construction Company engaged a sub-Contractor i.e. Neeraj respondent No.9 to carry out the work of laying of stones at the work premises. That on 16.08.2010, deceased Radhey Shyam at about 10.00 P.M. at night, along with one Arjun was going to the roof of the building for the purposes of sleeping. When he reached the 3rd floor, all of a sudden, he slipped from the stairs, sustained injuries and thereafter passed away, succumbing to the injuries he sustained. The dependents of the deceased filed the claim petition and stated that Radhey Shyam was working as a labourer under the appellant through respondent No.9 and doing the work of stones. The appellant being the principal employer and respondent No.9, the Contractor were liable to pay the compensation. It was further stated that deceased Radhey Shyam died during the course of employment while discharging his duties under the respondents. This compensation claim was contested by the appellant F.A.O. No.3371 of 2011 3 along with respondents No.8 and 9 by filing separate written statements. Appellant M/s Vinayak International contested this claim petition by filing reply submitted that late Radhey Shyam was not an employee of the appellant being as engaged under Section 2 (1) (n) of W.C. Act and the contract of employment was not in existence in the instant case between late Radhey Shyam and the appellant, as Radhey Shyam was not in employment with the appellant on 17.08.2010 in any capacity as specified in Schedule-II of the Act. It was further submitted that construction work was awarded to Contractor Mr. R.S. Klhatri, Proprietor M/s Ram Construction Company VPO Kundli as per agreement dated 06.03.2009 and the claim was not maintainable. It was further stated that Radhey Shyam was an employee of the Contractor Neeraj and at the time of alleged incident was not on duty and the fact remains that the deceased was not discharging any work under the supervision of Contractor Neeraj at the time of said accident and employer employee relationship was not existed. The other contesting respondents also filed their separate written submissions, taking up the plea that no manufacturing activities were carried on and only construction of building was carried out and deceased Radhey Shyam never received injuries while in course of employment and, as such, they were not liable to pay the compensation amount. Appellant M/s Vinayak International failed to put in appearance after filing of the written statement and was proceeded against ex parte. Workmen's Commissioner framed the following issues: 1.Whether there is relationship of employer and employee between the deceased and respondent No.1 at the time of alleged accident? F.A.O. No.3371 of 2011 4 2. Whether the alleged accident occurred during and out of course of the employment of respondent No.1? 3. Whether the present claim application is maintainable in view of the preliminary objections of respondents No.1,2 & 3? 4. Whether the applicants are entitled to the amount of compensation as claimed in the application? If so to what effect and from whom? 5. Whether the respondent No.1 is liable for penalty? 6. Relief.” All these issues were decided in favour of the claimants and against the appellant and, accordingly, the appellant was held responsible to pay the compensation amount. I have heard the learned counsel for the parties and have gone through the record of the case. It has been submitted by the learned counsel for the appellant that Radhey Shyam was never employed in the trade or business of the appellant concern. The appellant concern was engaged in the business of making utensils and for raising the construction of building. Respondent No.8 was given contract, who further engaged respondent No.9. The deceased was not a workman working for the appellant as defined under Section 2 (1) (n) of W.C. Act. as there existed, no relationship of employer and employee between the appellant and the deceased, so they were not liable to pay the compensation amount. On the other hand, while arguing on behalf of respondents No.8 and 9, it has been submitted that the appeal in question has been filed without depositing the amount of compensation within the limitation period and, as such, this appeal was not maintainable. In support of his submission, he has relied upon 1986 ACJ 1101 F.A.O. No.3371 of 2011 5 New India Assurance Company Limited Nagpur Vs. Mohinder Singh and another and New India Assurance Company Limited Vs. Kartar Singh (P&H) 2001 (3) Service Cases Today. First of all, I would like to deal the question regarding limitation to file the appeal. The proviso of Section 30 of the W.C. Act states that deposit of amount of compensation at the time of presentation of appeal is maintainable. The appeal would be deemed to be competent only on the day when the amount of compensation as awarded by the Commissioner is deposited in full in the Court. It will be relevant to mention here that in the proceedings before the Commissioner, the present appellant was proceeded against ex parte on account of its failure to appear after filing of the written statement. A perusal of the file would show that at the time of filing of the present appeal, the appellant has also moved an application bearing C.M.No.11749-CII of 2011 under Section 30 of the W.C. Act read with Section 151 of the Code of Civil Procedure 1908 for grant of exemption from filing of the Certificate as required by proviso to Section 30 (1) of the Act of 1923. The appeal has been filed without depositing the amount of award awarded by the Commissioner. I am of the view that after filing of the appeal till the disposal of application seeking exemption from depositing the compensation amount, the appeal will be within limitation. The clock stops sticking once the petition is presented in the Court. Resultantly, the first substantial question of law is answered by holding that till the application under Section 30(1) of the W.C. Act is pending, the appeal of the appellant will be deemed to be within limitation. Mohinder Singh's and Kartar Singh's cases (supra) relied upon by learned counsel for the appellant seems to be F.A.O. No.3371 of 2011 6 not applicable to the facts of the present case as there is no mention regarding application for seeking exemption to file appeal without depositing the compensation amount. Otherwise also, in the present case the amount of compensation has been deposited by the appellant though after filing of the appeal and before the decision of the application seeking exemption. Now the question remains whether the deceased was an employee under the appellant as per Section 2(e) of W.C. Act. It is claimants' own case that on the date of accident the deceased was under the employment, supervision and in control of respondent No.8, who has further deputed respondent No.9 to complete the job of laying the floors. Immediately after accident, the concerned officials of Police Station Kundli recorded statement of Arjun, the eye witness, who stated that deceased Radhey Shyam was working with him and that the contract of work was taken by Neeraj son of Padam Singh Respondent No.9. He has further stated that after finishing the work, they were going up-stairs to sleep on the roof, all of sudden, deceased Radhey Shyam slipped from the stairs and fell down from the 3rd floor. Copy of his statement Annexure A1 has been placed on the file. The facts and circumstances of the case proves that neither Radhey Shyam was employed by the appellant nor Radhey Shyam was engaged in connection with the trade or business of the appellant i.e. making utensils. The appellant entrusted the building construction work to contractor M/s Ram Construction Company respondent No.8, who further engaged a sub Contractor Neeraj son of Padam Singh respondent No.9 to complete the flooring work. Section 2 (1) (e) of W.C. Act denotes that there has to be contract of employment. By no stretch of imagination, it can be F.A.O. No.3371 of 2011 7 said that deceased was employed with the appellant and there was not any relationship of employer and employee between the deceased and the appellant. The deceased was an employee of Neeraj, who has further been engaged by respondent No.8 i.e. the Construction Company, who has taken the job of constructing building on the plot belonging to the appellant. The substantial question of law is, therefore, answered in negative. The impugned order fastened the appellant with liability to pay the compensation amount could not sustain and is set aside. The appeal filed by the appellant stands allowed. The appellant immediately after filing the appeal had deposited the compensation amount with the Commissioner. The amount deposited by the appellant and lying with the Commissioner will be returned back to the appellant only after expiry of the period of appeal. Respondents No.8 and 9 are jointly and severally held liable to pay the compensation amount. The parties shall bear their own costs. September 23, 2011 ( MOHINDER PAL ) jt JUDGE