IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MA(Cl NO.H^' /2007 ^ m^ APPELLANT/ NON-APPLICANT N0.1 Director M/s. Patel Enterprises 1st floor Vikas Complex, power house road. Distt. Korba. A- v' VERSUS RESPONDENTS/ APPLICANT CLAIMENTS (1) Smt. Savitri Bai, W/o. Late Late Baharan Singh, aged about 25 years, ^y- ^)-'^ yv' (2) Om Prakash S/o. Late Baharan C7 Singh, aged about 7 years through his mother Smt. ?..15>-1-?'^P^^ Savitri Bai (Guardian) '••^^- I .^•(^p^-'" (3) Anil Kumar, S/o. Late Baharan e8ingh, Aged about 4 years through his mother Smt. Savitri Bai (Guardian). All R/o. Village Narmada near Police Station Kathghora. Distt. Korba. RESPONDENTS/ NON-APPLECANT No.(2) ^ (4) Executive Engineer Hardev Baraj, Jal Prabandhan Sambhag, Korba near ITI, Rampur, Distt. Korba. > (5) Commissioner for the Workmen Compensation Act Labour Court KorBa. Distt. Korba (C.G.) ^ Miscellaneous Aopeal under Section 30 of the Workmen Compensation Act 1923: - i t |^5| %. I... ..^ '^•^^ "t%^£^^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(QNo.1171 OF 2007 Appellant Non-applicant No.1 Respondents/ Applicant Claimants Vs Director M/s Patel Enterprises, Distt. Korba (CG) Smt. Savitri Bai and others POST FOR ORDER ON \? AUGUST.2011 Sd/- G. Minhajuddm Judge n .8;201T HIGH CQURT OF CHHATTISGARH AT BILASPUR ^ M.A.fClNo.1171 OF 2007 Appellant Non-applicant No.1 Vs Respondents/ Applicant Claimants Director M/s Patel Enterprises, Distt. Korba Smt. Savitri Bai and others Present: Mr. Vinod Deshmukh, counsel for the appellant. Mr. Raj Kamal Singh, counsel for respondents No. 1 to 3. ORDER (Passedon \^ August,2011) G. Minhaiuddin, J 1. This appeal has been filed by the appellant/employer under Section 30 of the Workmen's Compensation Act, 1923 against the award dated 9.8.2007 passed by the Commissioner for Workmen's Compensation, Labour Court, Korba in Case No.18/WC.Act/05 (F), fastening the liability to pay compensation to the claimants upon the appellanVemployer. 2. Brief facts of the case are that the appellant had taken a contract from the Executive Engineer, Hasdev Baraz Water Management Division, Korba for stone pitching work in Kohadia canal. On the date of accident i.e. 3.7.2004, deceased Baharan Singh and others, employees of the appellant, were doing the stone pitching work in Kohadia canal. hlowever, all of a sudden, Baharan Singh was found absent. In this connection, the appellant/employer was informed by brother of Baharan Singh and when no action was taken by the appellant for searching Baharan Singh, a report to this effect was lodged at the police station. Subsequently, on 5.7.2004, a dead body of employee Baharan Singh was found on the bank of Kohadia canal. Registering of merg and other formalities were done by the police and it was found that the deceased had died on account of drowning in the canal. A claim for compensation was made by the dependents of the deceased employee from the appellant/employei: and when the compensation was denied, the dependents filed an application under Section 10 of the Workmen's ^. s% fe- ^ Compensation Act, 1923 (in short "the Act, 1923") for grant of compensation before the Commissioner for Workmen's Compensation, Labour Court, Korba (hereinafter referred to as "the Commissioner" for the sake of convenience). 3. Learned Commissioner after affording opportunity of hearing and adducing evidence to the parties passed the impugned award dated 9.8.2007 holding that the deceased was an employee of the appellant and his death had occurred on account of accident arising out of and during the course of his employment. As such, a compensation of Rs.2,16,248/- was granted with the stipulation that in case the said amount is not paid within a period of one month, then the appellant shall also be liable to pay interest @ 10% p.a. thereon. In addition to this, Rs.50,000/- has also been imposed as penalty on the appellant. 4. Heard learned counsel for the respective parties, perused the LCR as also the impugned award, 5. Learned counsel for the appellant/employer has submitted the written arguments as well as photocopies of the judgments of the Hon'ble Supreme Court in the matters of Mallikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. and another, 2009 AIR SCW 1688, and Region^l Director, ESI Corporation and another Vs.Francis De Costa and another, (1996) 6 SCC 1, in support of his contention and argued that the claimants have not only to prove that the death has occurred but also that the same is due to accident arising out of and in the course of employment of the deceased. He further argued that no evidence has been adduced to show that the death of Baharan Singh was due to the accident arising out of and in the course of his employment. Learned counsel has further contended that it has not been proved that at the relevant point of time, the deceased was in the employment of the appellanVcompany. 6. On the other hahd, learned counsel for resporidents No. 1 to 3 has supported the impugned award. 7. In this appeal, the following substantial question of law has been framed for determination: f ^... l V^3/ '\3^y ^^'^Si^^' ^ "Whether the finding recorded by the Commissioner for Workmen's Compensation, Labour Court, Korba that death of Baharan Singh had occurred arising out of and in the course of employment with the non- applicants is erroneous? 8. Before the Commissioner, on behalf of the claimants Savitri Bai - widow of the deceased - has examined herself as AW-1 , Pardesi Ram as AW-2 and Bhavan Singh as AW-3. Whereas on behalf of the appellant, the contractor Dinesh Patel has been examined as NAW-1, Labour Inspector BS Verma as NAW-2 and Sub Divisional Officer SK Dhamija as NAW-3. 9. Dinesh Patel (NAW-1) has admitted in his cross-examination that his work at Kohadia canal was going on since 2003 and it was up to September, 2004. The appellant as well as Dinesh Patel have denied that on the date of accident i.e. 3.7.2004, deceased Bahoran Singh was in the employment of the appellant. Dinesh Patel has admitted that Pardesi Ram was working as one of his employees in the said work. 10. Pardesi Ram has been examined on behalf of the claimants as AW-2, who has, in clear terms, stated that the deceased was working as an employee of the appellant in performing the stone pitching work in Kohadia canal and was also working as such on the date of accident i.e. 3.7.2004. This witness has further stated that on the directions of the appellanVcontractor, the deceased Baharan Singh used to cross the canal with his spade and ga/'tee for doing the work on the other side of the canal. On the date of accident i.e. 3.7.2004 also, Baharan Singh had crossed the canal for going to other side of the canal and after that, he was found missing and subsequently, his dead body was found on the bank of Kohadia canal on 5.7.2004. As per merg registered by the police, Naksha Panchayatnama and the postmortem report, the deceased had died on account of drowning. 11. The appellant, 'in support of his plea that the deceased was not his employee on thevdate of accident, had filed a copy of relevant portion of the attendance register, in which attendance of the .fr' ". ". "'t J ^° employees has been shown from 1st to 3 July, 2004, as Ex.D/1C, which has been certified by the Labour Inspector. This Labour Inspector BS Verma has been examined as NAW-2 and he has admitted that he had checked the attendance register on 2 July, 2004 and not on 3rd July,2004, whereas Ex.D/1C contains the attendance of labours from 1st July to 3 July, 2004. This witness has further stated that after 2nd July, 2004, he has not signed the said attendance register till 31 July, 2004, as such the document of Ex.D/1C, which is said to be a photocopy ofthe attendance register, is rendered suspicious and no weight can be given to it.- 12. From the evidence adduced on behalf of the claimants and admission of Dinesh Patel (NAW-1), it is proved beyond doubt that on the date of accident i.e. 3.7.2004, the deceased was in the employment of the appellant and on the directions of the appellant while crossing the canal he met with an accident resulting in death by drowning and therefore, it can safely be presumed that the death of the deceased/employee was due to accident arising out of and in the course of employment. As such, the finding recorded by the Commissioner in this regard is quite legal and correct, being based on proper appreciation of the evidence and cannot be faulted with. Accordingly, the substantial question of law is answered in the negative. 13. Learned Commissioner has given a finding that the deceased was 30 years old on the date of accident and his monthly wages was Rs.2080/- and on this basis, by applying the retevant factor, he has awarded a sum of Rs.2,16,248/- as compensatiqn, which appears to be quite legal and proper and hence is affirmed. 14. However, the Commissioner has awarded interest @ 10% p.a. on the amount of compensation after one month from the date of award whereas he should have awarded the minimum rate i.e. 12% p.a. Since no cross-objection has been filed on behalf of the claimants, therefore, the rate of interest cannot be enhanced. 15. The Commissioner has also imposed Rs. 50,000/- as penalty upon the appellant, but'it appears that before imposing penalty, the learned Commissioner has not followed the mandatory provisions of proviso to clause (b) of sub-section (3) of Section 4A of the Act, 1923, which mandates that no order for imposing penalty shall be passed unless the employer has been given an opportunity to show cause against the same. Evidently, this has not been done in the present case and as such, the order imposing penalty cannot be sustained and the same deserves to be set aside. 16. In the result, the appeal is partly allowed. While confirming the award of compensation of Rs.2,16.248/- along with interest @ 10% p.a., impositionof penalty of Rs.50,000/- is hereby set aside and the matter is remitted back to the Commissioner to re-consider the question of imposing penalty, if warranted by the facts and circumstances of the case. But before imposing penalty, the Commissioner should strictly follow the mandate of proviso to clause (b) of sub-section (3) of Section 4A of the Act, 1923 and then only pass an award regarding penalty in accordance with law. 17. LCR be sent back to the Commissioner without further delay. 18. Parties shall appear before the Commissioner on 13th September, 2011. 19. No order as to costs. Sd/- G. Minhajuddin Judge b