X^r^^^^>='3^.:i M^ • • C^.i^ BEFORE THE HON'BLE HIGH COURT OF JUDICATURE ATBILASPUR IN THE MATTER OF ^'^^_93i9'Gas8 A.NO. ' / 07 M.A.NO. MANAGING DIRECTOR DESH.LEHARA UDYOG VILLAGE & POST - DEVADA. TAH. & DIST.- RAJNANDGAON VERSUS -"l.MADANLALGOND '/ S/0 RAMKUMAR GOND, AGE D-29, R/0 VILLAGE & POST - DHANOUD, TAH. .& DIST. - DURG 2.PRESIDING OFFICER, LABOUR COURT RAJNANDGAON, (Exercising the powers of Commissioner Workmen Copensation Act) RA.TNANDGAON APPELLANT NONAPPLICANT i^... .^K^"; ^ RESPQNDENT N0.1 APPLICANT- RESPONDENT N0.2 APPEAL UNDER SEC.30 OF WORKMAN COMPENSATION ACT 1923 c^ HIGH COURT OF CHHATTISGARH ATBLLASPUR Appellant Non-Applicant M.A.(Cl No.383 OF 2007 Managing Director, Deshlehara Udyog, Village & Post - Devada, Tah. & Distt. - Rajnandgaon. Respondents Vs Madanlal Gond and another ^ POST FOR ORDER ON ^ SEPTEMBER.2011 Sd/- G. Minhajuddin Judge '\ /s:^, 1Y'%^^y' Jz HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C) No.383 OF 2007 Appellant Non-Applicant Respondents Vs Managing Director, Deshlehara Udyog, Village & Post - Devada, Tah. & Distt. - Rajnandgaon. Madanlal Gond and another Present: Mr. Sudeep Johri, counsel for the appellant. Mr. Anup Majumdar, counsel for respondent No.1. ORDER (Passed on ^2-<5| September, 2011) G. Minhaiuddin. J 1. This appeal has been filed by the appellant/employer under Section 30 of the Workmen's Compensation Act, 1923 (in short "the Act, 1923") against the award dated 14.12.2006 passed by the Commissioner for Workmen's Compensation, Labour Court, Distt. Rajnandgaon in Case No.18/WC AcV2006 N.F., whereby and whereunder the appellanVemployer has been ordered to pay a sum of Rs.1,51,142/- as compensation along with interest @ 6% per annum on the said amount from the date of presentation of the application till its payment is made and in addition, an amount of Rs.75,571/- has been imposed as penalty. 2. Brief facts of the case, as per averments in the application of the claimant for compensation, are that claimant/respondent No.1 was working as crane operator in the establishment of the appellant since 2003 and was getting Rs.2400/- per month as salary. On 13.4.2005 at abbut 11.30 am in the discharge ofhis duties while he \ was lifting iron y'aajE? with the help of crane for loading it in the trailor, the iron jaap slipped and fell down on the foot of respondent ^^y:^^ 1 -'.•.•/ •^^-•^" :'^^ (^) Iw^ No.l/workman, on account of which toes of both the foots were cut and he sustained injuries on his sole and fell unconscious. He was immediately rushed to the hospital at Padmanabhpur, Durg where he was treated. Report of the accident was lodged by the family members of the injured at Police Station - Somni, whereupon the police after registering offence against the manager and other persons filed charge sheet before the concerned Court. 3. According to respondent No.l/workman, he had gone to work in general shift, however, on account of excess of work, the manager of the appellant company withheld respondent No.1. The aforesaid accident hadoccurred on account of lack of proper safety measures. Due to the accident, respondent No.1 has become permanently disabled and is not able to do any work. The appellant company did not pay anything towards the treatment of respondent No.1. Therefore, by filing an application under Section 10 of the Act, 1923, respondent No.1 claimed for compensation along with 50% penalty with interest from the appellant company. 4. Learned Commissioner for Workmen's Compensation, on close scrutiny of the evidence adduced before it and after affording opportunity of hearing to the parties, passed the impugned award dated 14.12.2006 and awarded a total compensation of Rs.1,51,142/- in favour ofthe injured claimant along with interest @ 6% per annum thereon, and further imposed penalty of Rs.75,571/- on the appeltant employer. \ 5. Heard learned 'counsel for the parties, perused the Lower Court Record as also the impugned award. 6. In addition to oral arguments, learned counsel for the appellant has submitted written arguments and has drawn attention of this Court towards Notification No. Labour/21 dated 20th March, 2002, issued under sub-section (1) of Section 20 of the Act, 1923, published in Chhattisgarh Rajpatra, Part-1, dated 19.7.2002 at page 880, as wetl as Section 81 of the MP Re-organization Act, 2000, and argued that by the said Notification, all the Assistant Labour Commissioners have been appointed by the State Government to exercise powers of the Commissioner for Workmen's Compensation within their respective areas in respect of claims for compensation made by the workmen under the Act, 1923. Learned counsel for the appellant has further argued that the instant case relates to an accident, which had taken place on 13.4.2005, whereas the abovementioned Notification is of 20th March, 2002 and therefore, on the date of accident as well as the date on which the claim petition of respondent No.1 was entertained by the Presiding Judge of the Labour Court, Rajnandgaon as .Commissioner for Workmen's Compensation, the Presiding Judge of the Labour Court was not having jurisdiction to entertain the claim petition by a workman under the Act, 1923. As such, the award impugned passed by the Labour Court as Commissioner for Workmen's Compensation without jurisdiction is a nullity in the eye of law and deserves to be set aside. 7. In additiori to this, the appellant's counsel has also argued that it has not been established that there was employer-employee relationship bety/een the appellant and respondent No.1, and that ^A_ "^ 4 r^ respondent No.1 sustained injuries due to the accident arising out of and in the course of employment under the appellant. 8. Further, imposition of penalty has also been assailed on the ground that before imposing penalty, the mandatory provisions of proviso to clause (b) of sub-section (3) of Section 4A of the Act, 1923 have not been complied with by the Commissioner for Workmen's Compensation and therefore, the order imposing penalty also deserves to be set aside. 9. Or the other hand, learned counsel for respondent No.l/claimant has supported the impugned award. 10.1n this appeal, the following substantial questions of law are involved for adjudication: (i) Whether the Presiding Officer of the Labour Court, Rajnandgaon, who, exercising powers of Commissioner for Workmen's Compensation, passed the impugned award, had no jurisdiction to entertain the plaim petition by a workman under the Act, 1923 in view of the Notification of 2002 of the State Government? (ii) Whether the order imposing penalty upon the appellant is justified? (iii) Whether the Commissioner for Workmen's Compensation was justified in holding the appellant as employer of respondent No.1 and the accident to have taken place out of and in the course of employment? 11. It is not in disp^ute that previously by a Notification of the State Government issu6d in the year 1964 in exercise of powers under '.\ syb-section (1) of Section 20 of the Act, 1923, that the Presiding (Q Judges of the Labour Courts were appointed for their respective areas to exercise powers of the Commissioner for Workmen's Compensation in respect of claims for compensation made by workmen under the Act, 1923. From perusal of the provisions of Section 81 ofthe MP Re-organization Act, 2000 and the Notification No. Labour/21 dated 20th March, 2002 issued by the State Government in exercise of powers conferred under sub-section (1) of Section 20 ofthe Act, 1923, it is clear that by the said Notification, all the Assistant Labour Commissioners have been appointed within their respective areas as Commissioner for Workmen's Compensation for the purpose of entertaining claim petitions for compensation by workmen under the Act, 1923. The said Notification of 2002 has not been issued in supersession of previously issued Notification of 1964, by which the Presiding Judges of the Labour Courts were appointed within their respective areas as Commissioners for deciding the petitions for compensation by workmen under the Act, 1923. As such, it cannot be said that by the Notification of 2002, the Notification previously issued in the year 1964 had become non-existent and the Presiding Jydges of the Labour Courts are not having jurisdiction to act as Commissioner for Workmen's Compensation for the purpose of entertaining petitions for compensation by the workmen under the Act, 1923. Hence, the argument advanced by learned counsel for the appellant in this regard cannot be accepted. 12. So far as vairdity and legality of the order imposing penalty of Rs.75,571/- on th^ appellanVemployer is concerned, from perusal of the impugned award dated 14.12.2006 and the LCR, it is found that ""??. before imposing penalty, no opportunity to show cause was afforded to the appellant/employer. Proviso to clause (b) of sub- section (3) ofSection 4A ofthe Act, 1923 specifically mandates that no order imposing penalty under clause (b) of sub-section (3) of Section 4A shall be passed unless an opportunity to show cause has been given to the employer. The said provision is of a mandatory nature, and in the instant case, the same has not been complied with by the Commissioner for Workmen's Compensation. As such, the order imposing penalty cannot be sustained and is liable to be set aside. 13. So far as relationship of employer-employee between the appellant and respondent No.1 is concerned, respondent No.l/claimant has examined himself as AW-1, Hemlal Sinha as AW-2 and Dr. Y.K. Tiwari as AW-3. To substantiate the averments made in reply to the application of respondent No.1, the appellant has examined himself as NAW-1 and Arjun Pandey as NAW-2. Respondent No.l/claimant in addition to oral evidence, has filed certified copies of the documents of the criminal case pending against Vinod Jain (NAW- 1), Prakash Dubey and Hemlal Sinha (AW-2), with regard to the accident in question. 14. Respondent No.l/claimant has made a categorical statement that he was in the employment of the appellant since January, 2003 as a labour and was getting a salary of Rs.2400/- per month from the employer. On this;point, the statement of respondent No.l/claimant \ Madanlal finds corroboration from the statement of Hemlal Sinha (AW-2), who has steted that he was, at the relevant time i.e. 13.4.2005, in the employment of the appellant as a crane operator .^' j' kw ^?? and respondent No.l/ctaimant Madanlal was working with him. Moreover, the fact that Hemlal Sinha (AW-2) was working as a crane operator in the appellant company at the relevant point of time has also been admitted by the Security Incharge of the appellant company namely Arjun Pandey (NAW-2). Although Vinod Jain (NAW-1) and Arjun Pandey (NAW-2), have stated that respondent No.l/claimant was never in the employment of the appellant company, however, Vinod Jain has not stated that Hemlal Sinha (AW-2) was not in the employment of the appellant company. This witness Vinod Jain (NAW-1), who is managing partner of the appellant company and who looks after the affairs of the company, has admitted that attendance register and salary register of the employees of the company are maintained in the' appellant company. Further, from the statement of Arjun Pandey (NAW-2), Security Incharge of the appellant company, it is clear that a register regarding entry and exit of the persons/employees in the appellant company is maintained. However, neither Vinod Jain (NAW-1) nor Arjun Pandey (NAW-2) has produced those registers before the Commissioner for Workmen's Compensation, which were the best evidence in their possession for proving whether respondent No.l/claimant Madanlal was, at the relevant time, in the employment of the appellant company or not. Thus, due to non- production of the attendance register, salary register as well as the entry and exit registers, an adverse inference against the appellant company has^' to be drawn that had the said registers been produced, it would not have supported the case of the appellant //'•^\ V3=^ ^ company, but would have supported the case of respondent No.l/claimant. 15. As such, from the evidence, oral and documentary adduced, it has . been established beyond any doubt that on the date of accident i.e. 13.4.2005, respondent No.l/claimant Madanlal was in the employment of the appellant company and when iron jaap was being loaded in the trailor with the help of crane, that the iron jaap slipped and fell down on the right foot of respondent No.l/claimant, on account of which he sustained grievous injuries. 16. Now, so far as sustaining of permanent disability by respondent No.l/claimant Madanlal is concerned, respondent No.l/claimant has examined Dr. Y.K. Tiwari as AW-3, who is one of the members of the District Medical Board, Rajnandgaon, by which the disability certificate of Ex.P-2C had been issued. Dr. Y.K. Tiwari (AW-3) has proved the said disability certificate and stated that on account of the injuries suffered in the accident, respondent No.l/claimant has sustained 50% disability. There is no reason for not placing reliance on the testimony of a medical expert Dr.Y.K. Tiwari (AW-3), who is an orthopedic surgeon, and was one of the members constituting the District Medical Board, Rajnandgaon, which had issued the disability certificate (Ex.P-2C). As such, we do not find any illegality or legal infirmity in the computation of compensation by the Commissioner for Workmen's Compensation on the basis of percentage of disability suffered by respondent No.l/claimant and the same deserves to be affirmed. \ 17. The Commissioner for Workmen's Compensation has awarded interest @ 6% per annum from the date of presentation of the ^tllSt, I i "^^""yff %.. ^i^/ ^jy INN»»- application for compensation. However, in the instant case, the appellant/employer has not admitted the fact that respondent No.l/claimant was his employee and respondent No.l/claimant sustained injuries in the accident arising out of and in the course of his employment, and therefore, the interest on the award of compensation ought not to have been awarded from the date of presentation of the application for compensation by respondent No.l/claimant, but from the date of adjudication i.e. 14.12.2006 when the award was passed. 18. It is necessary to mention here that as per provisions of clause (a) to sub-section (3) of Section 4A of the Act, 1923, the minimum rate of interest is 12% per annum on the amount of compensation, whereas, in the instant case, the Commissioner for Workmen's Compensation has awarded interest @ 6% per annum, which is not correct. However, since there is no cross-objection filed by respondent No.l/claimant for enhancement of the amount of compensation or the rate of interest, therefore, the rate of interest cannot be enhanced. 19. For the reasons stated above, the appeal is allowed in part. The award of compensation to the tune of Rs.1,51,142/- is affirmed. However, the impugned award is modified to the extent that on the amount of compensation, the appellant shall be liable to pay interest @ 6% per annum from the date of the award i.e. 14.12.2006, and not from the date of presentation of the application. The awarding of Rs.75,571/- a$ penalty is hereby set aside. \ 20. No order as to cos^s. sd/~ G. Minhajuddin Judge •^