IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 MFA.No. 121 of 2010() ------------------ WCC. 96/2006 (278/08) OF COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAKKAD .................. APPELLANT / OPPOSITE PARTY NO.1: ------------------------------------------------------- ST.SEBASTIAN SENIOR BASIC SCHOOL, PALAYAM PETTA, PALAKKAD, REP.BY ITS MANAGER SR.CELIN NIRMALA, FRANCISCAN SISTERS CONGREGATION, ST.SEBASTIAN SENIOR BASIC SCHOOL, SULTANPET, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS / APPLICANTS AND OPPOSITE PARTY NO. 2 : --------------------------------------------------------------------------------------- 1. VELAYUDHAN EZHUTHASSAN, S/O.;LATE CHAMI EZHUTHASSAN, KULAVARAMPIL VEEDU, VADAKKETHARA, PUTHUSSERY, PALAKKAD, PINCODE – 678 007 2. MANIKANDAN, S/O.VELAYUDHAN EZHUTHASSAN -DO- -DO-, PINCODE – 678 007 3. SIVAKUMARI, W/O.SETHUMADHAVAN, RESIDING AT NEAR PUTHUKULANGARA TEMPLE, VADAKKETHARA PUDUSSERY, PALAKKAD, PINCODE – 678 007. 4. SELVAN, S/O.MATHU, VENTHAKKARA VEEDU, KAKKATHODU, ELAPPULLY PARA, PALAKKAD TALUK, PINCODE – 678 622. R1 TO R3 BY ADVS. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2011, ALONG WITH MFA NO. 283/09 & MFA NO. 285/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- MFA Nos.283 and 285 of 2009 and 121 of 2010 ------------------------------------------- Dated this the 7th June, 2011 ORDER/JUDGMENT Basant, J. CMA Nos.1619 of 2010 in MFA No.121 of 2010, 3541 of 2009 in MFA No.285 of 2009 and 3465 of 2009 in MFA No.283 of 2009 CMA No.3541/2009 in MFA No.285 of 2009 and CMA No.3465/2009 in MFA No.283 of 2009 are filed by the common appellant to condone the delay of 300 days in filing the said appeals. CMA No.1619 of 2010 in MFA No.121 of 2010 is also filed by the appellant to condone the delay of 198 days in filing the appeal. 2. We have heard both counsel. We are proceeding to dispose of the appeals themselves straight away. We are satisfied in these circumstances that a lenient view can be taken and the delay can be condoned. Petitions allowed. Delay condoned. MFA Nos.283 of 2009, 285 of 2009 and 121 of 2010 These appeals have come up for admission after condonation of delay. Identical contentions are raised in these MFA Nos.121 of 2010 and conn.cases 2 appeals. The appellant herein is St.Sebastian Senior Basic School represented by its Manager. The business of the school is imparting education to students. The appellant wanted a multi-storeyed building to be constructed in the premises of the school to meet the requirement of additional accommodation for the school. A contractor was engaged by the school for such construction of the building. A dispute is of course raised about the nature of the relationship between the appellant and the said contractor. 2. Be that as it may, while the work was going on, an accident took place on 3.10.1998 leading to the death of three workers employed by the said contractor for the work. The dependents of those workmen filed claim petitions before the Commissioner for Workmen's Compensation. 3. The appellant herein was the first opposite party and the said contractor was the second opposite party. The evidence tendered by the claimants reveal that the deceased workmen were employed by the second opposite party/contractor for undertaking the work of construction of the building on behalf of the first opposite party/appellant herein. No dispute was raised about the fact of the accident. That it was an accident which MFA Nos.121 of 2010 and conn.cases 3 arose out of and in the course of employment of the deceased workmen was also not disputed. There was no dispute about the quantum of compensation payable also. The appellant/first opposite party took up the contention that the workmen were employed directly by the second opposite party and that the appellant has no liability to compensate the dependents. 4. The Commissioner for workmen's compensation by the impugned awards came to the conclusion that the deceased workmen were employed by the second opposite party/contractor and that the appellant herein/first opposite party is the principal employer and the contractor, the immediate employer. Evidently, following Section-12 of the Workmen's compensation Act, the first opposite party/appellant was directed to deposit the compensation amounts with liberty to the appellant to claim to be indemnified by the second opposite party/contractor. 5. We have heard detailed arguments advanced by the learned counsel for the appellants. The claimants/respondents are also represented by the counsel. The learned counsel for the appellant raises various contentions. 6. First of all, the counsel contends that there is no MFA Nos.121 of 2010 and conn.cases 4 employer-employee relationship between the appellant and the deceased workmen. Going by the definition in Section-2(1)(n), there is no dispute that the deceased workmen will answer the definition of workmen. A contention is raised that the appellant/first opposite party will not answer the definition of 'employer' under Section 2(e) of the Workmen's Compensation Act. The deceased workmen were admittedly employed by the second opposite party/contractor and they were doing work on behalf of the first opposite party, that is for putting up a building in the property of the appellant/first opposite party. The building was to be constructed as there was requirement of additional building for the business of the first opposite party/appellant. The employment cannot be said to be casual or not in connection with the work/business of the appellant/opposite party. In these circumstances, we find no merit in the contention that the workmen concerned are not workmen or that the appellant/first opposite party is not the employer. There is no contention that the deceased will not be a workmen under Section 2(1)(n) read with the 2nd schedule. 7. It is next contended that Section 12 can have no application. Section -12 of the Act deals with contracting. The MFA Nos.121 of 2010 and conn.cases 5 evident purpose of Section 12 is to avoid the attempt by employers to wriggle out of the obligations under the Workmen's Compensation Act by advancing a contention that the work has been entrusted to contractors. Where workmen are employed under the contractors for getting the work which is ordinarily part of the trade or business of such principal to be performed, the principal employer is liable to pay the amounts subject of course to the rider that the principal employer has a right to be indemnified by the contractor. 8. A contention is raised that construction of the building is not part of the business of the appellant. Less said about this contention, the better. The construction was for the appellant. It was for providing additional accommodation for the business of the appellant of running a school. The mere fact that a contractor has been appointed will not in any way detract against the applicability of Section-12 as primarily the building was being constructed only for the appellant/first opposite party for the purpose of his business. 9. The counsel contends that it was not an ordinary relationship of contractor and Principal and that actually it was a turn key project under which the second opposite party was MFA Nos.121 of 2010 and conn.cases 6 expected to produce a result and take its consideration. According to the learned counsel for the appellant, it was a case of amounts being paid to the contractor on the basis of built up area and there was no relationship of Principal and Contractor between the appellant and the second opposite party. We shall for a moment assume that this contention is legally tenable. But, significantly, there is neither pleadings or evidence in support of this contention that the relationship between the appellant and the second opposite party was not that of an ordinary contractor and Principal, but was that of partners/associates in a turn key project. For crucial and significant absence of evidence and pleadings, this contention must fall to the ground. 10. Moreover, if the execution of the work is entrusted to a contractor under whatever arrangements between the contractor and the Principal, Section-12 must continue to comply with equal vigour. We are unable to accept the contention that terms of the contract can alter the jural relationship between the contractor and the principal. In the facts and circumstances of this case, the alleged relationship between the opposite parties – of associate in a turn key project, cannot be in any way militate against the liability of the Principal under Section 12. MFA Nos.121 of 2010 and conn.cases 7 11. No other contentions are raised. We are satisfied in these circumstances that this appeal is without merit and the same deserves to be dismissed in limine. 12. Our attention has been drawn to the penultimate paragraph of the identical impugned orders. It is ordered as follows: “Opposite party-1 can indemnify opposite party-2 as contemplated in Section 12(2) of the Act.” 13. Inadequacy of the language notwithstanding, it is very evident that the direction is that the appellant is entitled to be indemnified by the contractor., i.e. the second opposite party. There can be no doubt in substance about the purport of the direction notwithstanding the inadequate semantics. 14. These appeals are in these circumstances dismissed with the above clarification. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/