Assistant Engineer, M.P. Electricity Board and Another vs Rajendra Singh Chauhan

T.N. Singh, J.—This appeal u/s 30 of the Workmen''s Compensation Act, 1923, for short, the ''Act'', has raised few questions of law of general importance concerning interpretation of some provisions of the Act, on which much light has not been shed so far.

What is challenged in this appeal is the order dated 9.12.1977 of Labour Court No. 2, Gwalior, acting as Commissioner for Workmen''s Compensation under the Act. By the impugned order, the Appellants were directed to deposit compensation in that court which has been agreed to be paid by the Appellants for the death of their workman Devendrasingh, who died in an accident on 1.6.1966 in the course of his employment. Learned Commissioner, upon consideration of oral and documentary evidence adduced by parties, concluded that non-applicants had agreed to pay compensation of a sum of Rs. 4,800/ - to Keshavsingh (since deceased) who was father of the deceased workman. It has also been held that although the applicant, who was Keshavsingh''s son and Devendrasingh''s brother, was not a ''dependant'' of the deceased workman Devendrasingh, his application to enforce the agreement was maintainable and this view was taken after condoning the delay occurred in making the application which had happened due to non-applicants'' fault and not due to negligence or lack of diligence of the applicant.

In this Court, Appellants'' counsel Mr. K.N. Gupta has laboured hard to convince me that the application was not maintainable and further that the amount which has since been deposited with the Commissioner prior to the filing of the appeal, cannot be paid to the Respondent/applicant as he is not a ''dependant'' within the meaning of the term defined u/s 2(1)(d) of the Act. Respondent''s counsel Mr. Hirway has supported the impugned order and has further submitted that this Court acting under Article 227 of the Constitution, should make an order u/s 4-A of the Act for penalty and interest to correct the jurisdictional error committed by the Commissioner in not doing so and that for doing so, absence of cross-appeal shall not be treated as a bar. However, I am also of the view that the instant appeal itself, on the finding of the Commissioner, is not maintainable in view of the bar erected by the second proviso to Section 30 as the impugned order of the Commissioner does nothing but "gives effect to an agreement come to between parties".

Because the first proviso to Section 30 contemplates that an appeal in this Court can be entertained only on a "substantial question of law", I have no difficulty to hold that the finding of the learned Commissioner about existence of an ''agreement'' between the parties under which Appellants have bound themselves to pay the compensation of Rs. 4,800/ - for death of Devendrasingh is not assailable. Still, I have looked into the evidence myself and have perused the relevant documents exhibited in the case on which the finding is based. Exh. P-2 is a letter addressed by the Assistant Engineer, M.P. Electricity Board on 4.7.1966 to Keshavsingh intimating him that the compensation case was being prepared to be forwarded to the Board for releasing necessary amount and that higher authority was also being requested to sanction the release of pay of late Devendrasingh in his favour. A month later, on 2.8.1966, another letter to the same effect is addressed by the Assistant Engineer, namely, the first Appellant, as per Exh. P-2. The third letter is important because the compensation is quantified in this letter at Rs. 4,800/ -. It is Exh. P-3 and is dated 17.10.1966 wherein, however, for the first time, Keshavsingh is asked to produce succession certificate without which payment could not be made. As per Exhs. P-4 and P-5, it appears that the requirement of production of succession certificate was being insisted. These letters are dated 2.12.1966 and 15.11.1966 respectively. On 11.11.1967, the letter is addressed to Respondent/applicant Rajendrasingh himself informing him that as soon as compensation was sanctioned by the Department, the fact will be intimated to him. It is Exh. P-6. But earlier, by Exh. P-7 also addressed to him, the first Appellant acknowledged having received the succession certificate demanded, saying that the same was received in his office in the month of May, 1967 and that for early payment, the case of compensation had already been forwarded to the Divisional Engineer, Madhya Pradesh Electricity Board. Exh. P-8 is a letter dated 11.6.1968 which the first Appellant had addressed to Divisional Engineer, M.P. Electricity Board, Gwalior (herein Appellant No. 2) of which a copy was endorsed to the Respondent/claimant. Herein, Respondent''s claim as legal heir of Devendrasingh was admitted and payment of compensation to him was recommended saying that the succession certificate had already been forwarded in that connection. Exh. P-9 is a copy of the legal notice served on the first Appellant by Respondent''s counsel to which, admittedly, Appellants never replied. Exhs. D-1 and D-2 purport to be statements of witnesses having knowledge of the accident and Exh. D-3 is the spot map, but I do not propose to say anything about Defendants'' documents as the finding of the Commissioner is not contested in this appeal that Devendrasingh''s death took place in the course of his employment as a result of an electric pole falling on him in the course of its erection.

It is noteworthy that when on 28.3.1969, the Respondent filed the application claiming compensation under the Act, for the death of Devendrasingh, therein he stated that at the time of Devendrasingh''s death (on 1.6.1966), his father Keshavsingh was aged about 75 years and being ''dependant'' on his deceased son, had applied on 16.6.1966 to non-applicant No. 1 (Appellant No. 1 herein) for compensation and for unpaid salary due payable to the deceased. Keshavsingh died on 16.1.1967. Therefore, the required succession certificate was sent by the Respondent on 1.5.1967. It is true that in their reply, the non-applicants jointly took the stand that the liability for payment of compensation for death of deceased Devendrasingh not having been acknowledged, there was no question of depositing any amount with the Commissioner for Workmen''s Compensation, but, as earlier alluded, the plea of the non-applicants was rightly negatived on evidence adduced in the case, by the learned Commissioner.

Significantly, in the ''reply'' or ''written statement'', the main plea taken was that the applicant was not entitled to be paid any compensation and, therefore, there was no question of any amount being paid to him. On the pleadings, evidence and the findings of the learned Commissioner, I am disposed to take the view that the Commissioner was required to enforce the agreement of the non-applicants and the question which remained to be settled by the Commissioner was whether the applicant could enforce the agreement and the non-applicants could be ordered to deposit in the court of the Commissioner the sum of Rs. 4,800/ - which they had agreed to pay as compensation for the death of Devendrasingh.

What the Act contemplates definitely, unambiguously and inexorably is liability of the employer to pay compensation to a workman suffering a personal injury in an accident arising out of and in the course of his employment and indeed, compensation is also payable when the injury results in the workman''s death. This position appears clear on the face of the provisions of Sections 3, 4 and 4-A of the Act which speak of the employer''s liability, making it clear further that the liability arises the moment the accident takes place causing the injury or the death. This view, I took in Om Parkash v. Ramkali 1987 ACJ 803 (MP), and this view has also been taken in other cases which counsel cited during the course of hearing of this appeal. [See Pasupati Dutt Vs. Kelvin Jute Mills, and Madho Singh''s case 1980 JLJ 191.

How the liability can be discharged is indicated, however, in Section 8 in respect of cases where the injury has resulted in death because entitlement of any other person is not to be considered when the injured is alive to receive himself payment of the compensation. Indeed, the right to payment of compensation vests immediately in the injured workman, whether dead or alive, the moment the accident occurs because, as earlier observed, liability to pay compensation arises automatically, instantly and contemporaneously with the accident. It has, by now, been generally accepted, therefore, that, despite compensation remaining unpaid, the statutorily made indefeasible right of the workman would assume the character of a debt due payable to him by the employer and the right to recover that debt would pass to the legal representatives of the injured workman after his death or even of the deceased workman. Indeed, the right generally to maintain on that footing an application for compensation by the legal representatives u/s 22 would be there; and this has also been judicially recognised. [See Pasupati Dutt Vs. Kelvin Jute Mills, ; Ikkassintakath Abdurahiman and Another Vs. Nadakkavu Malikkal Beeran Koya, ; Madho Singh''s case 1980 JLJ 191].

In the instant case, however, the first question to be examined is the scope of the provisions of Sections 28 and 29 of the Act to consider particularly the question as to when and whose legal representatives can make an application u/s 22 to enforce the ''agreement'' envisaged u/s 28 Analysing the provision, what appears very clear is that the right to settle claim in respect of compensation by the ''agreement'' envisaged u/s 28, is not only of the ''employer'' and the ''workman''. Indeed the language of the proviso (a) as also the main enactment of Section 28(1) does not yield to any other construction. Accordingly I quote:

Registration of agreements.-(1) Where the amount of any lump sum payable as compensation has been settled by agreement, whether by way of redemption of a half-monthly payment or otherwise, or where any compensation has been so settled as being payable to a woman or a person under a legal disability a memorandum thereof shall be sent by the employer to the Commissioner, who shall, on being satisfied as to its genuineness, record the memorandum in a register in the prescribed manner:

Provided that-

(a) no such memorandum shall be recorded before seven days after communication by the Commissioner of notice to the parties concerned.

(Emphasis added)

The right to ''settle'' is not confined to any named person though ''parties concerned'' is generally mentioned.

The employer is authorised to ''settle'' u/s 28, the claim of compensation by an ''agreement''. It can be validly assumed that the claim can be made by, and settled with, any person legally entitled to receive the compensation because the only prohibition against recording by the Commissioner of the memorandum of such agreement (in the prescribed register) is that without "notice to the parties concerned" and before expiry of 7 days of the notice, such memorandum shall not be recorded. As per Sub-section (2), an agreement duly registered in accordance with the provisions of Section 28(1) would be enforceable "notwithstanding anything contained in the Indian Contract Act or any other law for the time being in force". Because, by proviso (d) of Section 28(1) itself, the challenges and defences which may be open to the parties to the validity of a contract are defined and limited to the circumstances indicated therein u/s 29, it is only the employer who is disqualified if the agreement is not registered in accordance with the provisions of Section 28. Because, he is made liable, for his statutory default, to pay full amount of compensation in accordance with the provisions of the Act notwithstanding anything contained in the agreement. Reading Sub-section (2) of Section 28, in conjunction with provisions of Section 29, it can be safely held that ''parties concerned'', who are noticed under Sub-section (1) of Section 28 and any person who has concluded the agreement with the ''employer'' are not disqualified, or in any manner disabled, to enforce the agreement against the employer as the duty to ''register'' the same is not theirs. It would be within the jurisdiction of the Commissioner, acting u/s 19 of the Act, to enforce the agreement at the behest of such a person or ''parties''. Indeed, in such a case, it would be a question of "liability of any person to pay compensation" to be settled "in default of agreement", the employer''s default being of his statutory duty to send the ''agreement'' to the Commissioner as contemplated u/s 28(1), for registration. Section 9 is the only provision of the Act defeating the right to receive compensation payable under the Act. What it contemplates in my view, is that right to receive payment of compensation, of ''any person'' entitled under the Act to receive the same, cannot be defeated by operation of any other law. Its purport is that the right created by the Act in favour of any person would not "pass to any person", such as is not entitled under the Act to receive the compensation, even by operation of any other law. [See Ikkassintakath Abdurahiman and Another Vs. Nadakkavu Malikkal Beeran Koya, and Madho Singh''s case 1980 JLJ 191].

It is necessary evidently to read conjointly also the provisions of Sections 19 and 22 and to note that the Commissioner is empowered to entertain and decide not only "an application by a Defendant or Defendants for compensation", u/s 22, it is also contemplated that any "application for the settlement of any matter by Commissioner" would also lie. The only limitation on the Commissioner''s power to ''settle'' any matter raised in such an application is indicated in Section 19(1) itself. Indeed, the ''matter'' must relate to liability of any person to pay compensation under the Act. So long as the liability remains in any manner undischarged under the Act, ''any matter'' connected with that liability shall remain germane for settlement by the Commissioner. Indeed, when an ''agreement'' is reached in terms of Section 28, the question of enforcement of the agreement at the instance of either the employer or the claimant will be within the jurisdiction of the Commissioner to settle. As earlier alluded, Section 29 would debar only the employer from enforcing the ''agreement'' concluded u/s 28 when such an agreement is not registered as provided u/s 28(1). There is nothing to be read anywhere in Sub-section (1) or Sub-section (2) of Section 28 or even in Section 29 to take the view that any other person except the ''employer'' is disqualified to make an application u/s 22 to enforce the ''agreement'' if that is not registered in accordance with Section 28(1). True, in such a case it would only be open to the employer to raise objection to the enforce-ability of such an agreement on any ground contemplated not only under proviso (d) to Section 28(1) but also under the Contract Act, and any other law for the time being in force. Support for this view is to be found in the provisions of Sub-section (2) of Section 19, which I quote:

(2) No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under the Act.

Section 28 having envisaged that any claim to compensation may be settled by an ''agreement'' with the employer who is liable to pay the same under the Act, there must be a remedy to enforce that right, as is mandated by the maxim ubi jus ibi remedium. Civil court''s jurisdiction being expressly barred extensively embracing ''any question'' arising under the Act in connection with enforcement of "any liability incurred under the Act", Commissioner''s jurisdiction to deal with ''any matter'' raised in the application made u/s 22 must have the widest scope.

The question which is of single relevance is of inter-relation of Sections 2(1)(d), 3, 8, 19 and 28. This question must be resolved with reference to the object of the Act invoking the aid of the maxim, ut res magis valeat quam pereat. The Act is undoubtedly a beneficent and a pre-Constitution measure but its provision can still be construed today in the context of constitutional imperatives of social justice in a manner that will effectively fulfil its objects. Accidental injuries and deaths of workmen may result in sudden and sometime utter destitution of a family and "certain classes of employers", according to the long title of the Act are, therefore, made liable to pay "compensation for injury by accident", when the accident takes place in the course of employment, according to Section 3. Although Section 2(1)(d) defines the term ''dependant'' the class of beneficiaries generally is also indicated. Indeed, the main Clause (d) speaks of "relatives of a deceased workman" which is followed by a list and Sub-clauses (ii) and (iii) contain also conditions of dependency, e.g., wholly or partly dependent on the workman at the time of his death. The term ''relative'', according to Black''s Law Dictionary, means "a kinsman; a person connected with another by blood or affinity". The definition clause has to be given a meaning which would rather effectuate than defeat the object of the Act and its various provisions. Indeed, if the term ''dependant'' is strictly construed, the object and purpose of the crucial provision of Section 3, as indeed also of Sections 19, 22 and 28 may be defeated in many cases and Section 8 may turn disabling instead of being an enabling provision. I am of the view that if the claim of a father or a brother to receive compensation for the death of his son or brother (as the case may be) is otherwise accepted under the Act, the right of such ''relative'' need not be restricted under Sub-clauses (b) and (d) respectively of Clause (iii) of Section 2(1)(d). If a father is not such a ''parent'' as was dependent wholly or in part on the earnings of the workman "at the time of his death" and a ''brother'' is not a ''minor'' and was not similarly dependent then, by an agreement subsequently, u/s 28, they are not to be disqualified to acquire the right to receive compensation from the employer. I would consider it reasonable to limit the disqualification of the father and the brother to "the time of death" of the workman. Indeed, under Indian social conditions the extended or joint family system being generally in vogue in all sections of the society, the dependency of blood relations upon one another is a lifetime feature, enuring to the benefit of the surviving member, on whom the deceased as member of the family could depend during his lifetime.

Looking at the matter from another angle, it would be a question also of harmonising the provisions of Sections 3, 8 and 19. Indeed, the question importantly would also be of construing Sub-section (4) of Section 8 in such a manner that it does not control Sub-section (6) thereof or other provisions of the Act. Relevant portions of the said two Sub-sections are extracted:

(4) On the deposit of any money under Sub-section (1), as compensation in respect of a deceased workman ... and shall, if it thinks necessary, cause notice to be published or to be served on each dependant ... calling upon the dependents to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied, after any inquiry which he may deem necessary, that no dependant exists, he shall repay ... the money to the employer by whom it was paid....

(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.

While Sub-section (4) speaks of a ''dependant'', it is ''any person'' whose entitlement is considered in Sub-section (6) manifesting duality of scope and object of the two provisions. But, it is necessary still to reiterate that the term ''dependant'' has to be understood in the sense explained in the last paragraph. If that is done, it would be possible to curb the controlling effect of Sub-section (4). The apex court in Workmen of Dimakuchi Tea Estate Vs. The Management of Dimakuchi Tea Estate, , has approved Maxwell''s view of words used in a statute that "their meaning is found not so much in a strict grammatical or etymological propriety of language, not even its popular use, as in the subject or in the occasion on which they are used, and the object to be attained". The right to compensation envisaged under Sections 3 and 4 has to be related in the post-Constitution era to State''s duty inscribed in Articles 41 and 43 to provide to workers benevolent "conditions of work" and as such the contingency of non-payment of compensation deposited by the employer (envisaged in Section 8(4) of the Act) on the ground that "no dependant exists" has to be restricted and the provision has to be so construed that it operates minimally. To do so, it would evidently be necessary to enlarge the corpus of the class of ''dependents'' defined in Section 2(1)(d) by construing the said provision liberally to achieve the object of the Act.

Sub-section (1) of Section 8 prohibits direct payment by the employer of the compensation payable by him under the Act but it is to be borne in mind that the employer can conclude agreement for payment of such amount as compensation as may be agreed upon. In such a case, when the agreement is registered in accordance with the provisions of Section 28(1), after hearing the ''concerned parties'' any person or persons who are authorised under such agreement to receive the compensation must be deemed ''entitled thereto'' within the meaning of the term employed in Section 8(6). Similarly, when any agreement though not registered is enforced by an application made u/s 22 and the ''matter'' is settled by the Commissioner u/s 19 such a claimant or claimants for compensation would also be deemed ''entitled thereto'' and in both cases the Commissioner ''shall'' be bound to make payment to him or them of the amount deposited by the employer. Indeed, only when any such claimant or co-claimant (under an agreement) is a woman then the entire amount or her share may be invested and dealt with in accordance with Sub-section (7) et. seq. of Section 8. In such type of cases (of settlement of claims of compensation by agreement) it would not be necessary for the Commissioner to act under Sub-section (6). The ''notice'' and ''inquiry'' contemplated under Sub-section (6) are not contemplated thereunder as mandatory requirements. In both cases the Commissioner would have a discretion, whether to ''notice'' any other dependant or to hold any ''inquiry''. Indeed, either in the proceedings u/s 19 or recording registration u/s 28(1) the Commissioner has to be satisfied that the agreement was concluded with one or more ''dependant'', or for that matter ''relative'' of the deceased workman who could be his dependant on the date of the agreement.

For all the foregoing reasons I have no hesitation at all to hold that the impugned order must be upheld. Learned Commissioner has enforced the agreement against the Appellants of paying a sum of Rs. 4,800/ - as compensation to the Respondent who is a ''relative'' (as a brother) of the deceased workman Devendrasingh and has produced the succession certificate for recovery of the ''debt'' (due as compensation payable under Sections 3 and 4 of the Act) as required by the Appellant. The Appellants are bound in law to deposit the said amount, to discharge Electricity Board''s statutory liability, in the court of the learned Commissioner, for making payment thereof to the Respondent, as provided u/s 8(6) of the Act.

However, the prayer of Respondent''s counsel, Mr. Hirway, has yet to be considered and disposed of. In the instant case not only the agreed amount has not been deposited in the Commissioner''s court as per provisions of Sub-sections (1) and (2) of Section 4-A, no "justification for the delay" in making deposit has been shown. Indeed, the deposit was made for the purpose merely to comply with the requirement of the third proviso to Section 30(1) to secure entitlement for filing the instant appeal. On the other hand, facts eloquently speak only this unambiguously, of the deplorable conduct of the statutory Corporation like the M.P. Electricity Board, represented by the Appellants. It has shown scant regard for truth and justice and has thrown to the wind its constitutional commitment to Articles 41 and 43 and has failed to behave as a benevolent patriarch to its deceased worker. Having acted first reasonably agreeing to discharge its statutory duty under the Act, as is reflected in the correspondence spanning a time-bridge of two years, the Board suddenly took to its head to behave like an ordinary litigant to deny everything after forcing the claimant-Respondent to take recourse to this time-consuming and expensive litigation extending over 18 years. Indeed, more than 20 years have elapsed since the death of Devendrasingh and since payment of compensation falling due and remaining unpaid under Sub-sections (1) and (2) of Section 4.

Counsel''s reliance on Om Parkash v. Ramkali 1987 ACJ 803 (MP), in the facts and circumstances of the case is most apposite. Indeed, this is also a fit case in which this Court must act suo motu under Article 227 of the Constitution, following Anwar Vs. Wahidan and Others, and Jagdishlal Dhody Vs. State of Madhya Pradesh and Others, , and correct the jurisdictional error in the impugned award in which no order for penalty and interest in terms of Section 4-A is passed. This indeed is a case in which the maximum penalty of fifty per cent contemplated u/s 4-A must be awarded, besides directing that the Appellants must also pay interest at the rate of six per cent per annum on Rs. 4,800/ - (adjudged payable as compensation in this case) from the date of application till the entire amount due under the award, as modified herein, is fully paid.

In the result, the appeal fails and is dismissed but the award stands modified in the manner hereinabove directed. The Respondent shall withdraw the amount already deposited but within two months the Appellants must make deposit of further amount in the court below to comply with the direction herein made to discharge their liability as respects penalty, which stands quantified at Rs. 2,400/ -, and also interest, as aforesaid. In case of default learned Commissioner shall make appropriate orders in that regard as contemplated u/s 31 of the Act. Counsel''s fee Rs. 100/ - if certified.