1. •^ ^ ^'^ m THE HIQH COURT OF CHHATTISQARH BILASPUR Misc. Appeal (C) No. i/ 200, lants ents :'::t ^•%^ ,^ "\^\^ ^ "'.^^' 1. Sudarshan, 32 Yrs'., 2. Siiryakant, 23 Yrs,, ^Both S/o Shyamu Lokhande, Grade Nag Road, Baidhnath Square, PS Imambada, Distt. Nagpur, Maharashtra VERSUS Purrdma Bai, wd./o KhemlalYadav,22Yrs. 2^Hiralal Yadav, S/o Late Taturam Yadav, 50 Yrs. 3,^Sanwali Bai, w/o Hiralal Yadav, 48 Yrs. All R/o Sonsai Tola, PO & PS & Teh. Ambagarh Chauki, Distt. Rajnandgaon APPEAL U/S 30 OF THE WORKMEN'S COMPENSATIONACT. 1923 •^- ^n /^ '^_ HIGH COURT OF CHHATTISGARH, BILASPUR D.B. ; HON'BLE SHRI I. M. QUDDUSI, J. & HON'BLB SHRI MANINDRA MOHAN SHRIVASTAVA, J. M.A. (Ct 447 of 2008 APPELLANTS Sudarshan 85 another Versus RESPQNDBNTS Purnima Bai & Ors. Judgnient for considerata Sd/- 1 ManindraMohanShrivastava ; HON'BLE SHRI I. M. OUDDUSI, J ^ "^T Sd/- 0 \ I.M.Quddusi Judge Post for pronouncement ofjudgment ^ .8-2011 Sd/- Manindra Mohan Shrivastava Judge :.^-< w ^y' '°' ' ^ HIGH COURT OF CHHATTISGARH : D.B. : HON»BLESHRI I. M. QUDDUSI, J. & HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. M.A. (Cl 447 of 2008 APPBLLANTS Sudarshan & another Versus RESPONDENTS Purnima Bai & Ors. Aooeal u/S 30 of the Workmen*s Com.oensation Act, 1923 Appearance: Shri Raja Sharma, counsel for the appellants. Shri Abhishek Sharma, counsel for the respondents. J U D G M E NJ? (Delivered on _^_Xugust, 2011) Per Manindra Mohan Shrivastava, J. 1. This appeal is directed against the award of compensation dated 23.4.2007 passed by the Commissioner, Workmen's Compensation (Labour Court), Rajnandgaon, by which, the claim of the respondents for award of compensation has been allowed and the Commissioner has awarded compensation of Rs.4,16,462/- along with interest @6% from the date of application till the date of payment, as also penalty to the extent of 50% of the amount of compensation. 2. This appeal was admitted on 2.4.2008. In the appeal following substantial questions of law have been raised by the appellants for adjudication: :,,.;^23 /^ i^ -2- %..^y "1. Whether the Court below was legally justified in accepting the claim without there being any niaterial to show the deceased to be employee of the appellants? 2. Whether the award of the Court below is perverse on the face of the record for having accepted the claim that the deceased was earning Rs.4,500/- despite the-fact that even as per claim he was only an unskilled migrant labour? At best the niinim.um wages provided for unskilled labours in Nagpur should have been accepted. 3. Whether the deceased was a workman covered under the Workmen's Compensation Act? 4. Whether the Court below was legally justified in ignoring the testimony of Applicant No.3 Sant Ram {gist reproduced in Para-6 of Award) who has stated that the fire was extinguished by the Fire Brigade and the deceased died due to building collapse while he had entered the accident premises to pick his belongings which unequivocally means that the death had not occurred during the course of the employment ? 5. Whether the Court below could legally award penalty u/S 4A (3) b without affording opportunity to show cause as per proviso and without ascertaining absence of justification for the alleged delay? " 3. Briefly stated the case of the appellants is that the respondents have filed application for grant of compensation under Sections 22 & 23 of the Workmen's Compensation Act, 1923 (hereinafter ^'; "^. -3- .:^v referred to as "the Act 0/1923"), on the pleading that respondent No.l is the widow of deceased- Khemlal, whereas, respondents No.2 & 3 are parents of deceased Khemlal, who was employed and working under the employment of the appellants. It has been averred that deceased- Khemlal was working in the godown and his work was to deal with the goods kept in the godown and for that, he was being paid Rs.4/500/- nionthly salary. It was the case of the respondents before the Commissioner that deceased- Khemlal and other labours used to reside in the godown itself. According to the respondents, the godown caught fire on 27th June, 2005 and deceased - Khemlal and other labours were instructed to go to the basement to douse the fire and in the inferno, deceased- Khemlal and other died. 4. The appellants in their reply denied that Khemlal was employed by them. It has also been denied that there was any arrangement of residence in the basement of the building. 5. After taking into consideration the oral 8& documentary evidence on record, the Commissioner recorded finding that deceased Khemlal was employed by the appellants and he died while making an attempt to douse the fire in the basement and during the course of employment. Therefore, the appellants were liable for payment of coinpensation under the law. 6. The order passed by the Commissioner, Workmen's Compensation, has been assailed on as may as five substantial questions of law. -':.1;^:'- ^y^^ s ^^m -4- Y ^^mm ^. ' ^ %^-^ •^^^u 7. One of the questions of law on which this appeal has been admitted is stated as question oflaw No.3. In the pleadings of the parties and the reply filed by the appellants before the Commissioner, the claim made by the respondents has been opposed, on the ground that the deceased was not employed by the appellants. It is not the case of the appellants that even assuming deceased to be employed, he was not workman as defined under Section 2 (1) (n) ofthe Act of1923 read with Schedule-II appended to the Act. It was not even an issue franied before the Commissioner as to whether the deceased was covered by definition of workmen as defined under the Act. This issued is being raised by the appellants before this Court for the first time. In the absence of there being any issue in this regard framed before the Commissioner or any pleading made by the appellants in that regard, the appellants cannot be allowed to raise the issue, determination of which would require inquiry into various factual aspects. Accordingly, the question No.3 is answered in negative. 8. On question No.l, leamed counsel for the appellants argued that the Commissioenr was not justified in accepting and allowing the claim and awarding compensation without there being any material to show that the deceased was employed by the appellants. -2%tlJ :-'L^' -5- Smt. Poornima Bai (A.W.l), in her testimony has very explicitly stated that her husband, deceased - Khemlal was employed by the appellants in their godown on daily wage of Rs.150/-. Heeralal (A.W.2), father ofthe deceased has also stated that his son- Khemlal was employed and working in the godown of the appellants and was getting Rs.150/- as wages. Santram (A.W.3), who was eniployed and working with the appellants has also stated that deceased- Khemlal was employed by the appellants in their godown on a daily wage of Rs.150/-. Therefore the learned Conimissioner, after raarshaling the evidence of Smt. Poornima Bai (A.W.l), Heeralal (A.W.2), 85 Santram (A.W.3), has recorded a finding of fact that deceased-Khemlal was eraployed by the appellants. The submission of learned counsel for the appellants that in the absence of documentary evidence, the finding of employment is liable to be reversed, cannot be accepted for the reason that from. the definition of word "Workman" as defmed under Section 2 (1 ) (n) of the Act of 1923, it is clear that the contract of employment may be express or implied or even oral and it is not necessary that it should be in writing. Therefore, the finding recorded by the Commissioner does not warrant any interference. The aforesaid question of law is therefore answered in negative. \ 9. On the-question of law No.4, learned counsel for the appellants submitted that applicants' witnesses No.3- Santram stated thaf -6- "^'.. '':M fire was extinguished by the Fire Brigade and the deceased died due to building collapse, while he had entered the accident premises to pick-up his belongings and this clearly proves that the death had not occurred during the course of employment. Learned Commissioner in its award has relied upon the testimony of Poornima Bai (A.W.l), who has stated that her husband - Khemlal was employed by the appellants in their godown (cbsll^^l^l) on a daily wage of Rs.150/-. She has further deposed that fire broke-out in the basement of godown (cr)<sji^<sii-ii) on 27.6.2005 and her husband Khemlal and other labours, under instructions form the appellants, had entered the basement where he died. Santram, applicants' witness No.3 has stated that he and Khemlal were employed in the appellants' godown (chdt^'yi-fi) and were paid Rs.150/- as daily wage. He has also stated that they had rescued the appellants and they had entered basement and at that time, the building collapsed and he died. His evidence shows that he and Khemlal were present at the spot, as they were workers and they had rescued the appellants from the spot and had entered the basement to remove goods, during which, the building collapsed and Khemlal died. Appellant No.2- Suryakant in his evidence has admitted that fire had broken*out in his godown and that some person had died. Considering the aforesaid evidence available on record that deceased -Khemlal was employed to work in the godown (c^<si 1^^1-11) of the appellants and oh.the date of incident, he was present and that he and Santram had rescued the appellants and when Khemlal entered ^^^ /( ..-^^ j %s'y% l '1i 1 -7- ^ ^.,^ i.^ the baseraent, the building collapsed and he died, The Coraniissioner has come to the conclusion that the deceased was eraployed and he died during the course of employment. The finding grecorded by the Commissioner, therefore, cannot be said to be without any evidence. It cannot be said that the Commissioner has ignored the testimony of Santram, applicants witness No.3. Therefore, the question No.4 is answered in negative. 10. Learned counsel for the appellants on question of law No.2 submitted that as the deceased was only an un-skilled migrant labour, the Court below committed gross illegality in relying upon the oral evidence that the deceased was earning Rs.150/- per day. Learned counsel for the appellants submitted that at the most, the compensation could be awarded only on the basis of minimum wages provided for un-skilled labours in the area where the deceased was employed. In order to arrive at the conclusion with regard to the income of the deceased, learned Commissioner has relied upon the evidence of Smt. Poornima Bai (A.W.l), Heeralal (A.W.2), & Santram (A.W.3). All of them have uniformly stated that the deceased was eaming Rs.150/- per day. Taking 26 working days in a moth, monthly income was arrived at Rs.3900/-. The deceased died in the year 2005. The Commisiosner has computed the total amount of compensation \ by taJring Rs. 1950/-, being 50% of the monthly income arrived at /r^\ i ^*^) 't '^ J1' F' -8- on the basis of evidence on record. Therefore, we do not find that the learned Commissioner has awarded excess compensation. The question oflaw No.l is accordingly answered in negative. 11.0n question of law No.5, learned counsel for the appellants submitted that while awardin^ compensation of Rs.4,16?462/-, the Coramissioner has imposed penalty without giving any opporutntiy to show cause against iinposition of penalty as mandatorily required under proviso to clause (b) of sub-Section 3 of Section 4-A of the Act of 1923. There is considerable force in the submission of learned counsel for the appellants. We have perused the record ofthe claim case. From the order sheets ofthe proceedings, including the order sheet dated 23.4.2007 on which the award was passed, we do not find that any show-cause notice was issued to the appellants as required under the aforesaid provision. Proviso to clause (b) of sub-Section (3)of Section 4 -A of the Act of 1923 clearly mandates in unequivocal terms that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. This mandate of law has been clearly violated by the Commissioner while passing award for grant of compensation as also imposition of penalty on the appellants. Therefore, the award in so far as it seeks to impose penalty on the appellants to the extent of 50% of the award, is clearly illegal and in excess of jurisdiction and to that extent unsustainable in law. It is, therefore, held that imposition of -9- ,^ penalty is illegal and the afore-stated question of law is answered in affirmative. 12. In the result, impugned award to the extent it imposes penalty on the appellants to the extent 50% of the award is declared illegal and hereby set aside. 13. The appeal is accordingly partly allowed. 14. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge Rraveen