IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 375/2005 Uttaranchal Power Corporation Ltd. …. Appellant. Versus Harish Chandra Tamta and 3 others.. Respondents. Mr. B.C. Pande, Advocate for the appellant. Mr. M.S. Bisht, in brief of Mr. L.K. Verma, Advocate for respondent No.1. Mr. R. Dobhal, Advocate for respondent No.2. Dated: 29-7-2008 Hon’ble B.C. Kandpal, J. This appeal under Section 30 of Workmen’s Compensation Act, 1923, has been filed by Uttaranchal Power Corporation, against the judgment and award dated 6.7.2005, passed by Workmen’s Compensation Commissioner, Haldwani, District Nainital, in WCC No. 56/2004. 2- Brief facts of the case, as per the averments made in the claim petition, are that claimant/respondent Harish Chandra Tamta, filed a claim petition before the Workmen’s Compensation Commissioner, Haldwani, District Nainital for compensation for the injuries suffered by him on 17-6- 2001 in the accident while he was working on an electric pole during the course of his employment in Uttaranchal Power Corporation. According to him, due to injuries suffered by him, his right hand was amputated from its root and he has become permanently disabled. 3- The Opposite Party Uttaranchal Power Corporation contested the claim petition by filing its written statement and alleged that the claimant had climbed the pole without the permission of the 2 department and without informing the Department. It also alleged that the claimant was not in the employment of the Corporation, therefore, he was not entitled to get any compensation. 4- The Opposite Party No.2, Electricity Inspector also filed his written statement and alleged that the claimant had no concern with the Uttaranchal Power Corporation and he was not employed in the Corporation. 5- Parties adduced evidence before the Workmen’s Compensation Commissioner. Thereafter, the Tribunal after hearing learned counsel for the parties and considering the material on record, awarded a sum of Rs. 3,50,452/- as compensation( plus interest) vide impugned judgment and award dated 6.7.2005. The Commissioner further directed that the amount so awarded in favour of the claimant be paid by the Uttaranchal Power Corporation within 30 days. 6- Feeling aggrieved, the Uttaranchal Power Corporation has preferred this appeal before this Court. 7- Heard Sri M.C. Pande, learned counsel for the appellant, Mr. M.S. Bisht, holding brief for Mr. L.K. Verma, learned counsel for the respondent No.1/workman, Mr. R. Dobhal, learned counsel for the respondent No.2 and perused the record. 8- Learned counsel for the appellant has submitted before me that the claimant could not establish before the Workmen’s Compensation Commissioner by any iota of evidence that he had been working or was under the employment of the Power Corporation at the time of the accident. He has, 3 therefore, submitted that the amount of compensation awarded by the Workmen’s Compensation Commissioner is absolutely against the weight of the evidence on record. 9- Learned counsel for the respondent/ workman has made rival contention by submitting that the claimant had been working with the Power Corporation at the time of accident. He has further submitted that he climbed on the pole of electricity on the instruction of line-man of the area. He has also submitted that on account of this accident the claimant has suffered 100% disability. Thus the Commissioner has rightly awarded the compensation in his favour. 10- The record reveals that in the written statement filed by the Uttaranchal Power Corporation before the Workmen’s Compensation Commissioner, specific plea was taken that the claimant obtained the training of an apprentice with effect from 24-4-90 to 23- 4-92, but at the relevant time, when the accident took place, he was not in any manner under the employment of Power Corporation, nor has been engaged by any of the authority of the Power Corporation on contractual basis or daily-wage basis. The written statement filed by the Power Corporation further reveals that the claimant had not been entered as a casual labourer in the muster roll of the Department at the relevant time of the accident, therefore, there was no nexus between the claimant and the Power Corporation, as employee and the employer. 11- My attention was invited towards the statement of the claimant Harish Chandra Tamta, which indicates that he obtained the training of the apprenticeship from 24.4.90 to 23.4.92. The claimant has although stated in his deposition that with effect 4 from 11.8.98 he was appointed as a daily-wage labourer by the Junior Engineer of the Department and his name was entered in the muster roll, but no appointment letter has been filed by the claimant before the Workmen’s Compensation Commissioner. The claimant has further stated in his deposition that on the date of the accident, i.e. 17.6.2001 he climbed on the pole on the instruction of line-man Rajendra Singh Negi and met with an accident. 12- It is worthy to mention here that neither Rajendra Singh Negi came forward to say that he in fact instructed the claimant to climb on the pole and repair the electricity line nor the claimant could adduce any plausible and reliable evidence in order to substantiate this fact that he has ever been under the employment of the Power Corporation. There is no iota of evidence available on record which may indicate that the claimant had ever been appointed either a daily wage labourer, or worked with the Power Corporation on contractual basis or remained under the employment of the Corporation in any manner during the relevant time of the accident. Rather the record indicates otherwise. The statement of the claimant itself indicates that a letter was sent by the Senior Administrative Officer dated 19-9-2002 informing the accident to the Executive Engineer, Electricity Division, Nainital, and requesting for extending financial help to the victim, i.e., claimant and giving him appointment in the Electricity Department. This situation itself makes the picture clear and there is no doubt now to come to the conclusion that the claimant had neither been under the employment of the Corporation nor has been engaged by any of the authority of the Corporation to work on the electricity pole on the date of the accident. When the claimant was cross-examined by the other side, 5 he has admitted that he could not file any document showing therein that his name has been entered in the muster roll of the department. The claimant neither produced any such document before the Workmen’s Compensation Commissioner nor moved any application for summoning the muster roll from the department which could have indicated as to whether the name of the claimant finds place in the muster roll or not. This witness has also admitted in the cross-examination that no document is available on the record, which may indicate that he had ever been instructed to repair the electricity line by climbing on the pole on the said date. 13- As there is nothing available on record which may indicate that there is a nexus of employer and employee between the Power Corporation and the claimant on the date of the accident, the impugned award passed by the Workmen’s Compensation Commissioner, suffers with material illegality, as it is absolutely against the weight of the evidence on record. The Workmen’s Compensation Commissioner has awarded the compensation in favour of the claimant/respondent, treating him to be a workman under the employment of the Uttaranchal Power Corporation, which is absolutely unjustified and illegal. 14- For the reasons given above, I am of the view that the impugned judgment and award is liable to be set aside and the appeal deserves to be allowed. 15- Accordingly, the appeal is allowed and the impugned judgment and award dated 6.7.2005 is set aside. Consequently, the claim petition filed by the claimant/respondent fails and is dismissed. 6 16- In case if the money has already been received by the claimant/respondent, then it is open to the Department/appellant to recover the amount from him in accordance with law. (B.C. Kandpal, J.) ISB 7