Executive Director vs Mira Devi and Others

Atul Kumar Jain, J.—In this civil misc. appeal Executive Director, B.M. Birla Science and Technology Centre, Jaipur has challenged the award dated 24.11.2006passed by Commissioner(WC) Court, Dausa in WCC/14/2004 titled as Smt. Mira Devi and Ors. v. Executive and Anr.

By the impugned award an amount of compensation to the tune of Rs. 4,30,560/- along with 9% simple annual interest was ordered to be paid to the claimants Smt. Mira Devi and Ors. who were legal representatives of deceased Hemant Kumar Bairwa who was said to be a ''workman'' and working as a painter in the employment of the appellant at the time of his death when he fell down from some height while at work. Death allegedly took place on 18.03.2004 though the accident occurred on 17.03.2004.

It has been mentioned by the appellant that Hemant Kumar Bairwa was neither a ''workman'' nor he was in the employment of the appellant but he was a labour working under the directions and supervision of the contractor Tulsi Ram Sharma who is respondent No. 5 before us. It is pertinent to mention here that Tulsi Ram Sharma respondent No. 5 has not given appearance in this appeal despite service upon him.

On the other hand, it has been argued by respondent Nos. 1 to 4 that the award passed by the Commissioner (WC) Act is perfectly right because death of Hemant Kumar Bairwa occurred while he was in the employment of the appellant and the said death had also arisen out of the said employment. In this regard, Section 12 of The Workmen''s Compensation Act, 1923 is quite relevant which reads as under:--

"12. Contracting- (1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.

(2) where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, [or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation,] and all questions as to the right to and the amount of any such indemnify shall, in default of agreement, be settled by the Commissioner.

(3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal.

(4) This section shall not apply in any case where the accident occurred elsewhere that on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management."

Thus by a bare reading of the language of the Section we come to know that to make the appellant liable to pay compensation, it should have been proved that the Paint Work was a work which was ordinarily part of the trade or business of the principal. It is nowhere the case of the claimants that the B.M. Birla Science and Technology Centre, Jaipur is doing the business of Paint Works. So the appellant was neither the employer nor the deceased was his employed workman.

On the other hand, agreement executed by respondent No. 5 in favour of the appellant is on record which clearly mentions that the Paint Works of the Birla Auditorium work was to be executed by Tulsi Ram Sharma, respondent No. 5 who was Paint Work Labour Contractor in lieu of Rs. 84,312.32 (Eighty Four Thousand Three Hundred Twelve Rupees and Thirty Two Paise only). This document was not disputed by respondent No. 2 Tulsi Ram Sharma before the Commissioner and so the position is very clean that the Paint work was to be executed by Tulsi Ram Sharma for which he was to be paid by the appellant and it is also not in dispute that deceased Hemant Kumar Bairwa was in the employment of Tulsi Ram Sharma at the time of the accident because of which he expired on the next date.

Statements of Ram Kishan PW1, Om Prakash Bairwa PW3, Gishi Devi PW4, Colonel Dileep Singh DW1 and Kailash Chand Deshwal DW2 also support my conclusion.

Thus, the matter is crystal clear. Appellant was neither the principal employer nor the contractor of deceased Hemant Kumar Bairwa and so he does not come in the definition of "employer" as given in Section 2E of the Workmen''s Compensation Act, 1923 which reads as under:--

"employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him;

It has also been argued that the deceased was also not a ''workman'' at all as per the definition of Section 2(1)(n) of the Workmen''s Compensation Act, 1923. But, I am not convinced with this argument because deceased was certainly a ''workman'' at the time of the accident and further it has been proved that he was in the employment of contractor Tulsi Ram Sharma who is respondent No. 5 before us.

At this stage respondent Nos. 1 to 4 have put reliance upon the following rulings:--

"(1) Vishram Jetha and Sons Vs. Smt. Sheraj Bai and Others, (2011) 3 TAC 727 : (2009) 3 WLN 170 In this case liability of contractor was held joint and several with the principal employer. With respect to the decision I may further clarify here that I have held that the appellant was neither the principal employer nor the contractor of the deceased Hemant Kumar Bairwa within the meaning of Section 12 of Workmen''s Compensation Act, 1923 and so ruling of Vishram Jetha (supra) does not help the case of the claimants."

Appellant has relied upon the following rulings of the Apex Court:--(1) Lakshminarayana Shetty Vs. Shantha and Another, (2001) 2 ACC 35 : (2001) ACJ 1561 : (2002) 94 FLR 658 : (2002) 3 LLJ 523 : (2001) 4 SCALE 449 : (2003) 9 SCC 190 In this case, work of painting the house was undertaken by the deceased apparently under a contract. Deceased fell down while doing the said work and died. Hon''ble the Apex Court held that in such a case deceased will not be entitled to claim any compensation under the Workmen''s Compensation Act, 1923 from the appellant.

Aforesaid ruling of the Apex Court is perfectly applicable to the case in hand before us and so the award passed by the Commissioner Workmen''s Compensation Act Dausa on 24.11.2006 needs modification which is hereby modified to the extent that liability to pay the compensation under the said award shall be only of respondent No. 5 Tulsi Ram Sharma who was non-applicant No. 2 before the Commissioner. Appellant Executive Director, B.M. Birla Science and Technology Centre, Jaipur, Unit of Hindustan Charitable Trust, Opp. Statute Circle, Jaipur (Raj.) is hereby exonerated from the liability of paying any compensation to the respondent Nos. 1 to 4.

Appeal of the appellant is hereby accepted accordingly.

Copy of this order be sent to the Commissioner (Workmen''s Compensation), Dausa immediately along with record of the case. The amount deposited by the appellant with the Commissioner should be refunded immediately to the appellant.