1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL UNDER WORKMEN'S COMPENSATION ACT NO. 3/2001 Shri Pradeep Naik, Major, resident of Behind Shehanai Hall, Shantinagar, Ponda Goa. ... Appellant. V e r s u s Shri Yesso Tulshidas Naik, Major, resident of Talulem, Bandivado, Ponda Goa. ... Respondent. Mr. S.S. Kantak, with Ms. Sapna Mordekar, Advocates for the Appellant. Mr. N. K. Sawaikar, Advocate for the Respondent. Coram :- A. H. JOSHI, J. Date :- 22 nd JULY, 2009. JUDGMENT : 1. Heard learned Advocate Shri S. Kantak, and Advocate Ms. Sapna Mordekar, for the Appellant and Advocate Shri N. Sawaikar for the Respondent. 2. This is an Appeal under Workmen's Compensation Act. It is seen that at the time of admission hearing a substantial question of law on which the appeal has been admitted was not framed. at* 2 3. At the outset, learned Advocate for the Appellant who has addressed the Court was called upon to specify the substantial question of law who has indicated those as follows : (1) Is the impugned order which is passed in an appealable case, not a reasoned order and therefore liable to be set aside on this ground alone. (2) Whether employer-employee relationship can be proved barely on oral evidence of claimant and his witnesses ? 4. The questions of law quoted in foregoing para are framed as substantial questions of law. 5. Learned Advocate for the respondent agrees that no fresh notice is required and hence the appeal is heard. 6. Heard both learned Advocates and perused the record. 7. Facts are summarized as below :- (a) The present respondent Yesso Tulshidas Naik, the claimant, was called on 5.6.1997, by Mahesh Naik, a plumber, for assisting him in the plumbing work which was to be carried out at building construction site, of the work undertaken by Pradeep Naik - present Appellant. The claimant went there and started working. at* 3 (b) On 5.6.1997 when the claimant was working as helper with plumber Mahesh Naik, an accident occurred, in which the claimant has suffered various injuries on his person. (c) Ultimately respondent's following limbs were required to be amputated or were lost namely :- (i) left leg below the knee, (ii) two toes of right foot, (iii) thumb of right hand, (iv) index finger, and (v) thumb of left hand were lost. (d) The claimant had suffered disability which is certified to be 80 %. 8. The respondent/claimant filed an application claiming compensation before the Commissioner of Workmen's Compensation. The said claim was opposed by the present Appellant raising grounds of maintainability and disputing the employer – employee relationship. 9. At the hearing respondent - workman examined :- (a) himself; (b) opponent no.1 Mahesh Naik, the plumber, who had called the claimant to work with him as helper; (c) the Doctor to prove disability; and at* 4 (d) the police personnel/officer on the fact that the matter of accident was reported to police etc. 10. The present appellant participated in the trial and cross - examined claimant's witnesses, however has refrained from stepping in the witness box, and from bringing any other evidence/witness. 11. The learned Commissioner of Workmen's Compensation has decided the case on the oral evidence as brought by the claimant, and on believing said evidence, has allowed the claim. 12. In the process of appreciation of evidence, the Learned Commissioner found that as no evidence was adduced by Opponent No.2 (present Appellant) to disprove the oral evidence of the claimant, the claimant as to the fact of his employment, accident to be arising out of and in the course of employment, age, wages, etc., the Commissioner was inclined to accept the evidence led by the workman. The Commissioner in the result held certain facts as proved namely :- (a) Employer-employee relationship between Pradeep Naik and the claimant, his wages and disability. (b) Accident was arising out of and in the course of employment. at* 5 13. In the present appeal, the award passed by the Commissioner of Workmen's Compensation is challenged on the grounds that :- (a) Finding that the employer employee relationship is proved, is erroneous. (b) Factors governing compensation are not proved. (c) Though it was an appealable case, the judgment and award is not reasoned. 14. In order to substantiate the points urged, learned Advocate for appellant has read out to the Court entire evidence and pleadings. Entire thrust of learned Advocate for appellant is to demonstrate that :- (a) The claimant was employed by the plumber (CW No.4) Mr. Mahesh A. Naik – the opponent no.1 – present respondent, and not by the appellant. (b) The claimant has failed to bring direct evidence of employment/ appointment by the appellant, and the appellant had no burden of rebuttal. 15. The judgments relied upon by learned Advocate for the appellant along with prepositions thereon are as below :- (A) Burden of proof and mode of proving the Employer – Employee relationship :- (1) AIR 1962 SC 517 (V 49 C 79), in case of Shankar Balaji at* 6 Waje V/s The State of Maharashtra and (2) AIR 1958 SC 388 (V 45 C 60 ) in case of Chintaman Rao and another V/s State of Madhya Pradesh and (3) AIR 2004 SC 1639 in case of Workmen of Nilgiri Co-op. Mkt. Society Ltd., V/s State of Tamil Nadu and others Preposition : If alleged employer had no control and supervision on the job assigned to the job worker the employer – employee relationship did not emerge as connoted by section 2 (1) of the Factories Act. Direct control such as power to appoint, day to-day supervision on job undertaken by employee, etc. are to be strictly proved by employee. (4) AIR 2008 SC 1955 in case of Sita Ram & Ors. V/s Moti Lal Nehru Farmers Training Institute. Preposition : Burden of proof rests upon the workman who claims that he has completed 240 days of continuous service. ( Para 12 ). However, on facts of case on hand Hon'ble Supreme Court held that pay-slips are the best evidence was withheld by the employer, and evidence brought by workmen was held sufficient to prove their status. ( Para 14 to 16 ). (B) Order must be reasoned order :- (5) AIR 2007 SC 1363 in case of U.O.I. & Ors. V/s Jai Prakash Singh & Anr. Preposition : In order to indicate the mind of the authority passing an order, reasons are imperative and an order without reasons would be un- sustainable. DISCUSSION, CONCLUSION AND REASONS Law of precedents as to burden of proof of employer employee relationship, and facts as proved. at* 7 16. In the case under Workmen's Compensation Act, where the duration of employment has no relevance or significance with the employer's obligation to pay compensation, proof of fact of engagement by any legal evidence is imperative. The claimant must prove that there exists an employer – employee relationship. 17. Therefore, the law of precedent as emerging under Industrial Disputes Act and other Labour Laws, that the workmen shall have to discharge the burden to prove the period of employment while computing the period of continuous service do not operate for a prototype application thereof. 18. It shall suffice in a case under the Workmen's Compensation Act, that if an employee/workman proves that the workman who was employed, had arrived at work, and was engaged, the duration of employment has no significance. Jurisdictional facts are :- (a) Fact of employment; (b) The accident must be arising out of and in the course of employment; (c) Age; (d) Wage; (e) Disability/loss of earning capacity etc. at* 8 19. For any one to know whether these jurisdictional facts are proved, though it would seem to be very elementary, one must remind oneself the test of proof of facts crucial to any case under any law. One must fall back, and this Court is propelled to seek guidance from the definition of the term “proved” as in Evidence Act. The said definition which serves the universal yardstick, and as a postulate, needs to be quoted for reminder as below :- “Proved.- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”. 20. Preview of facts of case disclose the following :- (a) On facts the claimant and the job worker plumber AW2 had tendered oral evidence with respect to the fact of employment. (b) It has come in the evidence that in relation to the accident subject matter, a report was made to police, and the place where the claimant was working on the site was belonging to the appellant. (c) Admittedly, the appellant has not denied engagement of AW2 Manish Naik as plumber and claimant's engagement by Manish Naik. 21. The work for which the claimant/respondent was called is a job of plumbing which is undoubtedly required to be done in construction of houses. at* 9 22. It is common knowledge and Court too would take a note of the prevalent practice that plumbing contractor or a plumber and his assistant – helper would not be called for plumbing activity by giving a written order of the appointment. This type of engagement would not be formatted with written order of appointment or by way of signing of detailed memorandum – agreement etc. 23. By recourse to the universal test of term 'Proved' herein before, a prudent man ought, under the circumstances of case, as in the hand would consider the existence of the fact of employment/appointment by appellant. In this background, hardly any other option than holding that the fact of employment was proved, was available to the commissioner. 24. On the point of fact finding being legal and correct any other view is hardly available and therefore on facts impugned judgment is liable to be endorsed as correct and does not call for any interference. Need of Reasons 25. It is well settled that failure to record reasons is congruent to “Injustice”, but “recording of reasons” is not congruent to “Justice”. Here comes into picture the question of need and quality as well as the worth of reasons whenever those are recorded. at* 10 Therefore, recording of worthy reasons is an indispensable rule in the process of adjudication. 26. One is not required to refer to long list of precedents to abide by basic rule that whether the case is of adjudication of a right in a case which be appealable or not, an appeal itself or a revision, or any other case for that matter reasons have to be recorded. Reasoned order, its scope and magnitude. 27. This aspect needs to be dealt with, in much details, particularly in the background of seriousness with which impugned judgment, was criticized to be an unreasoned order or judgment. 28. On the question of reasons to be seen in the order or judgment, the questions which arise for consideration can be formulated as follows :- (a) What has to be the length and breadth of reason required to be recorded while rendering a judgment in appealable cases. (b) What is the test or device to decide upon a question as to whether given order is a reasoned order or not ? (c) Can any gauging formula be found and laid down to assess the adequacy of reasons in any order or judgment ? AGAIN, A SUMMARY LOOK ON FACTS 29. Every question of law, arises before the Court because of the facts of the case alone. at* 11 Therefore, the question as to reasons to be adequate etc., cannot be decided without having a glance on the facts and the manner in which trial of the case had proceeded and was concluded which in summary is again referred as herein after. 30. Commissioner was bound to decide case by reasoned order, irrespective of the quality of contest. In view of contesting written statement, the Commissioner was under obligation to frame issues, and upon hearing, to record findings on jurisdictional facts. 31. The employer appellant could have stepped into witness box and interalia stated that :- (a) The construction work did not belong to him. (b) No plumbing work was assigned to witness no.2, (c) It was assigned to some other person; (d) No plumbing or other work was going on; (e) Claimant was trespasser or an on looker; (f) Any other facts nullifying claimant's story, due to which case would not be covered by Workmen's Compensation Act. Nothing as indicated herein before or any of its sort was brought on record by the appellant. at* 12 In absence of evidence to contradict claimant's version in the form whatsoever, the appellant is arguing to disprove employer – employee relationship, proved by employee. 32. In the background that on all points noted in para no.18, the claimant has brought the oral evidence, and this evidence had gone unchallenged and un-rebutted, what the Commissioner was required to record is his objective 'satisfaction' about the proof of or otherwise of the jurisdictional facts, as he may hold as proved/not proved etc. 33. In the present case, what the Commissioner has done is seen from the text of judgment which is as follows :- (a) Judgment reveals that he has read applicant – claimant's evidence; (b) In the judgment he has referred to the gist of evidence and has recorded and expressed as to what he has found in the evidence led by the claimant in support of his claim; (c) He has found and has recorded that there was no rebuttal and has recorded that the evidence as to proof of fact by the workman has gone unchallenged; (d) He has found and recorded that the workman has proved his case particularly in absence of rebuttal. (e) Upon reading the evidence and after referring thereto he has recorded his satisfaction and conclusion of these matters of fact which are jurisdictional facts, as proved; (f) Jurisdictional fact as to employment, and accident to be one which was arising out of and was in the course of employment, and at* 13 facts proving this substance as were found in the evidence led by claimant and his witnesses have been referred too. 34. It is not the appellant's grievance that :- (a) The Commissioner has not at all referred to the evidence. or (b) Has failed to refer to entire evidence but has read or referred only part of it; or (c) Misread the evidence. or (d) Any other grievance of said type. 35. Had the claim been allowed in absence of finding that the jurisdictional facts were proved, then, it would have lead to a conclusion, that the order is passed without appreciation of evidence. 36. The Presiding Officer/Judge forms opinion as sum effect of the observation of the tenor of witness in the process of recording of the testimony, when he has himself recorded it, and otherwise, upon reading the notes of evidence and documentary evidence, as to the probability existence or otherwise of the facts sought to be proved. Thus appreciation of evidence and forming opinion as to preponderance of probability of existence or non existence of any fact is a moral conviction of the judge, within four corners of law. at* 14 37. Sum effect of what the judge has seen, observed and read on record is the foundation i.e. the objective data on which he forms opinion. When the Judge writes in the judgment and he regards certain facts as proved, it suffices when he summarizes as to what has come before him, and for said evidence he is satisfied to hold a particular fact as proved. Only caveat is that the material that has come before him should withstand to the test of justifying conclusions on the test of guidance as available from Section 3 of Evidence Act of test of proved, nor proved, disproved etc., and has to answer the quest of litigant that the Judge or Tribunal has applied mind and dealt with the fact in issue and jurisdictional facts. 38. When on the evidence which has come on record, the Trial Court/Tribunal finds that the said evidence brought on record proves the claim, the question is what has to be the “face” of these reasons and the answer has to be :- (a) To hold facts as proved saying by the Tribunal/Court that “I accept” or “I reject” the plaintiff's/defendant's or claimant's claim or defence shall not satisfy “recording of reasons”; (b) It should express, may be precisely, the plea and evidence which it accepts as proved; (c) The judgment must disclose existence of those jurisdictional facts at* 15 in the body of text of the judgment; (d) Reading, marshalling and appreciation of evidence done by it must be disclosed in the judgment; (e) If there be any objections to legality or admissibility of such evidence – apparent or when not apparent, when raised, must be seen as dealt with; (f) Upon the exercise as aforesaid, it should record that it accepts or rejects the plea and evidence of a particular party as proved, to the universal touch stone of test of a prudent person to believe existence or non existence of facts so proved or disproved. (g) Reasons so recorded should eliminate subjective element and surface objective element. 39. The concept of reasoning behind an order is :- (a) Concept of “reason” referring to “rational” and “mind” of the presiding officer, thereby propelling a conclusion. (b) It is not numerically computable or measurable as in geometry or weights and measures; (c) The length and breadth of reason would always be decided and governed by grounds of objection which the authority is called to adjudicate. (d) The reasoning has to be seen in qualitative worth; at* 16 (e) In a given case the reasons could be spelt out in few lines as well. (f) What is to be seen is whether judicial satisfaction which is recorded by the Court is supported by objectivity and it is to be seen from some material which is borne on record. (g) Therefore, length, breadth, volume, quality and texture of reasons is decided by the guide of the slot created by grounds raised and issue involved in each case. As to case on hand, whether the judgment is lacking reasons 40. Present appellant did not carve out a slot or a guide which would open up a locus for breadth and length of reasons. 41. The appellant did not create a situation even of “oath against oath”. In such a situation of facts, some argument may have been possible had it been a case where facts crucial to jurisdiction were absent or had there been a bar under any statute. In the case on hand, the jurisdictional facts were those as narrated in foregoing paragraph No.18. Though it is argued is that impugned order does not contain reasons, it is not shown that jurisdictional facts and law is not dealt with by the Commissioner. It is not shown that in evidence brought by claimant, these jurisdictional facts are not proved. Therefore, extremely limited scope was at* 17 available to the Commissioner. 42. Challenge to the adequacy of evidence in present case is an arena of subjectivity due to failure of :- (a) rebuttal; (b) raising a ground which would disclose absence of jurisdictional facts; 43. Entire argument that reasons are not recorded is an effort in futility propelled by ingenuity and fiction than on facts in support. 44. By applying yardstick indicated in the foregoing paragraphs, the impugned judgment would be seen to be well reasoned. In this situation, it would not be expedient to expect that the Commissioner should have in absence of due traverse and proper contest, dragged himself in the exercise of writing long reasons more than what he has already done and articulated into artificialness in his exercise. In these premises, this Court is satisfied that the reasons which are recorded are adequate and sufficient and the order does not suffer from the vice of being rendered without reason or rendered without recording adequate reason. 45. It would be uncharitable to blame a judgment urging that there are no reasons or to contend that adequate reasons are lacking, without looking into at* 18 the scope of gamut of enquiry, nature of issues and length of evidence being simple, voluminous or complex which the judge was required to pass through before he reaches the conclusion. 46. Absence of reasons is thus an abuse of easy recourse, unless well founded and perceivable after perusal of evidence/record and the judgment under scrutiny. Though it was vehemently argued that the order is not a reasoned order, is thus a clamour without foundation. 47. To conclude it shall suffice to quote what H.W.R. Wade & C.F. Forsyth have summarized in their treaties, Administrative Law eighth edition at page 918 as regards reasons for decisions, which reads as follows :- “The Court of Appeal has emphasised that the statutory duty to give reasons 'is a responsible one and cannot be discharged by the use of vague general words'. It requires, as the High Court has held, 'proper, adequate reasons', being 'reasons which will not only be intelligible but which deal with the substantial points which have been raised'. In the same case the Court treated inadequacy of reasons as error on the face of the record, so that an inadequately reasoned decision could be quashed, even if the duty to give reasons was not mandatory”. ( Quoted from page 918 supra ) 48. Both substantial questions of law which are framed and quoted in para no.3 are answered as below :- at* 19 (a) Answer to Question No.1 :- Impugned order withstands to the test of being well reasoned order, and does not call for interference. (b) Answer to Question No.2 :- Employer employee relationship can be proved barely by oral evidence, depending on the facts and circumstance of each case. 49. The appeal therefore does not merit any interference and is dismissed with costs. A. H. JOSHI, J. at* at*