HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.160 of 2010 & FAO No.439 of 2010 Reserved on: 30.5.2011 Decided on: 3.6.2011 FAO No.160 of 2010: Rashid Khan ………Appellant. Versus Mansa Ram and another ………Respondents. FAO No.439 of 2010: Mansa Ram ………Appellant. Versus Rashid Khan and another ………Respondents Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Raman Sethi, Advocate, in FAO No.160 of 2010. Mr.Pardeep Singh, Advocate, in FAO No.439 of 2010. For the respondents: Mr.Pardeep Singh, Advocate, for respondent No.1 in FAO No.160 of 2010. Mr.Virender Kumar, Advocate, for respondent No.2 in FAO No.160 of 2010. Mr.Raman Sethi, Advocate, for respondent No.1 in FAO No.439 of 2010. Mr.Virender Kumar Verma, Advocate, for respondent No.2 in FAO No.439 of 2010. V.K. Ahuja, J.: This judgment shall dispose of the appeal filed by the appellant Rashid Khan (original respondent No.1) under Section 30 of the Workmen’s Compensation Act (hereinafter referred to as the Act) against the order of the learned Commissioner under the Workmen’s Compensation Act, Shimla in case No.4 of 2003, decided on 10.12.2009, whereby the learned Commissioner has awarded a sum of Rs.1,15,897/- in favour of claimant and as against the appellant Rashid Khan and respondent No.2. This judgment shall also dispose of the appeal filed by the claimant against the said award, claiming enhancement of the compensation. 2. The facts of the case are that the claimant Mansa Ram filed an application under Section 22 of the Act alleging that he was working as a labourer with respondent No.1 Rashid Khan for the last about 10 years on monthly wages and the monthly wages were being revised from time to time and from the year 2002, he was being paid Rs.3,000/- per month. He alleged that on 4.5.2002, he was working for respondent No.1 and while unloading the marbles from a truck, big marble slates fell on him and he sustained multiple factures on his right leg and right hand. The claimant alleged that he was operated on 5.5.2002. Respondent No.1 did not pay him the amounts spent by him for his medical treatment and ultimately a notice was served upon the said respondent by the claimant, but no compensation was paid. 3. In reply filed by respondent No.1 Rashid Khan, he pleaded that the petitioner was not working with him as a worker. It was alleged that the claimant was unloading marbles of one V.D. Kanwar, who was thereafter impleaded as respondent No.2 in the claim petition. The learned Commissioner tried the petition and vide his impugned order allowed the petition as against both the respondents. 4. Learned counsel for the appellant Rashid Khan had submitted that there was no cogent and reliable evidence led as against him to show that the claimant was working with him for the last 10 years on monthly wages and on surmises and conjectures, the learned Commissioner had come to the conclusion and awarded compensation as against him as well as respondent No.2. During the course of arguments, he had also referred to some evidence and submitted that the evidence led as against the appellant was insufficient. 5. On the other hand, the learned counsel for the claimant had submitted that the compensation awarded as against the claimant was insufficient, though he does not dispute it for the present that it was granted as per the schedule, but he submitted that the claimant has not been paid the expenses he had incurred for his treatment. He further submitted that the claimant is still undergoing treatment and that he is entitled to those amounts also. 6. I have considered the rival contentions of both the counsel for the parties and have gone through the record of the case. 7. It is true that the claimant had alleged in the petition that he was working for respondent No.2 Rashid Khan for the last 10 years and his salary was being revised from time to time and in the year 2002, he was being paid Rs.3,000/- per month. The claimant led some evidence, whichever was possible for him, and the learned Commissioner granted compensation, but such evidence, as submitted by the learned counsel for the appellant Rashid Khan, was not sufficient to conclude that the claimant was working as a labourer with the appellant. The provisions of Section 22(3) read as under: “(3) If the applicant is illiterate or for any other reason is unable to furnish the required information in writing, the application shall, if the applicant so desires, be prepared under the direction of the Commissioner.” 8. It is, therefore, clear that in case such an application is filed before the Commissioner and the applicant is an illiterate or is not able to furnish the required information in writing, the Commissioner has to assist the applicant so that he can put up a proper claim before the Commissioner. The idea behind enacting this provision is that the Workmen Commissioner has to be treated a friend of the claimant and he has to help him in producing evidence, if any, as to whether the worker was working with the contractor or not, as alleged by him. 9. Therefore, as a friend of the claimant or as a helper, the Commissioner has to collect the evidence, as far as possible, by directing the Contractor to produce the evidence before him taking, prima facie, the assertions made by the complainant in regard to his service with respondent No.1 as correct. Under the various labour laws, the employer is expected to maintain the registers in regard to the workers deployed by him and these records are subject to scrutiny by the Labour Inspector and other authorities and in case a contractor employs regularly any person as a labourer, such record must be available with the said contractor. Therefore, the learned Commissioner was required to give directions to respondent No.1 Rashid Khan to produce the record, if any, available with him and in case he was unable to produce the record pertaining to the non-employment of the claimant as a worker, then an inference could have been drawn as against the contractor. 10. Therefore, in my opinion, while disposing of both the appeals, I am of the view that the claimant should also be permitted to lead evidence in support of this fact that he was deployed with respondent No.1 and in case he was deployed for the last 10 years, record must be available with respondent No.1 and for that purpose, an opportunity has to be given to the claimant to produce the evidence that he was working as a worker with respondent No.1. On the other hand, the learned Commissioner shall issue directions to the employer to place evidence on record in regard to workers working with him and the record maintained by him under the provisions of various Acts and in case he fails to produce such evidence, though available with him, an adverse inference can be drawn in the facts and circumstances of the case, in case it is justified. 11. In view of the above discussion, I accordingly set aside the impugned order passed by the learned Commissioner as against appellant/respondent No.1 Rashid Khan only, since no appeal has been filed by respondent No.2 and as such the compensation awarded as against him shall be treated to have become final and shall be payable by respondent No.2 accordingly. However, in so far as the appellant Rashid Khan is concerned, the learned Commissioner shall take evidence, as produced by the complainant, and shall also direct respondent No.1 Rashid Khan to produce necessary evidence and then come to a conclusion as to whether the claimant was working with him or not and decide the compensation in accordance with law. The learned Commissioner shall also consider the prayer made by the claimant that he has spent for his medical treatment and is still undergoing treatment and he is also entitled to such amounts. He shall consider the claim, if permitted by law, and pass appropriate orders while deciding the application afresh. In case the compensation amount has already been paid by the respondent No.1 Rashid Khan in favour of the claimant, either in a compromise or has been deposited and has already been disbursed to the claimant, it shall not be refunded to the respondent No.1 Rashid Khan. However, in case some amount has been deposited by appellant Rashid Khan and has not been refunded to the claimant, that shall be subject to the decision afresh by the Commissioner. 12. Both the appeals stand disposed of accordingly. The parties, through their counsel are directed to appear before the Commissioner under the Act, {Sub Division Shimla (Rural)}, on 1.7.2011, who shall make attempt to dispose of the case, as far as possible, by 31st December, 2011. The Registry is directed to send the records of the case forthwith. June 3, 2011. (V.K. Ahuja), (tilak) Judge