Executive Engineer, Electricity Distribution Division and Another vs Mahipal and Another

Rakesh Tiwari, J.—We have heard Sri Rajendra Kumar Mishra, Counsel for the appellants on the question of condonation of delay. This FAFO is reported to be beyond time by 43 days. Having perused the affidavit filed in support of delay condonation application, we are of the view that cause shown for delay is sufficient. Delay is condoned. Delay condonation application is, accordingly, allowed.

Heard learned Counsel for the parties on merits of the case.

Challenge in this appeal is to the judgment and order dated 6.2.2013 passed by Commissioner, Employee''s Compensation/Assistant Labour Commissioner, Saharanpur in W.C.A. No. 35 of 2012: Mahipal and others v. Executive Engineer and others, whereby an award of Rs. 6,16,772/- has been awarded which was to be paid by appellant No. 1/Executive Engineer, Electricity Distribution Division, Nakur, Saharanpur within a period of 30 days from the date of order. By the impugned award, appellant No. 1 was further directed that in case of payment of default, 12% interest will also be charged from the date of order.

Brief facts of the case are that claim petition No. 35 of 2012 was filed by the complainants u/s 22 of Employee''s Compensation Act, claiming compensation of Rs. 7,13,055/- on death of his son Ajay Kumar due to electrocution on 22.6.2012 when he was changing the transformer.

The claim petition was contested by the defendant/appellants by filing written statement denying the fact that deceased was his employee or that he was working on the instruction of the appellant, rather he was repairing the transformer for a private consumer, as such there was no relation of master of servant between the appellant and deceased. After filing of reply to the claim petition, Manipal Singh (complainant No. 1) gave his oral statement on oath and he was cross-examined by the defendant/appellants'' Counsel on 21.9.2012. On behalf of appellants, Sushil Kumar Singh, Junior Engineer as well as one Ravi Kumar, S.D.O. gave their oral statements before the Court who denied employment of deceased in their department. Pankaj Kumar (S.S.O.)/D.W. 3 stated on oath that on 22.6.2012 the deceased was working along with two other contractual employees of the department.

After passing of the award, aforesaid, the appellant filed a recall application for recalling the order dated 6.2.2013 in W.C.A. No. 35 of 2012. Upon hearing the Counsel for the parties, the Commissioner, Employee''s Compensation, Saharanpur allowed recall application of appellant on 1.3.2013 holding that the deceased was not in the employment of the appellant. Aggrieved by the order dated 1.3.2013, the complainant filed Writ Petition No. 17410 of 2013 which was allowed on 2.4.2013. Consequently, the Commissioner Employee''s Compensation issued notices to the appellants to deposit the awarded amount pursuant of his earlier award dated 6.2.2013 within ten days. Thereafter, the appellant deposited the awarded amount in the office of Commissioner Employee''s Compensation, Saharanpur on 1.5.2013. On 63.2013, The Commissioner Employee''s Compensation, Saharanpur is said to have issued notice informing the appellants that he is going to release the deposited amount in favour of the claimants. Hence the present appeal has been filed.

The contention of learned Counsel for the appellants is that the award dated 6.2.2013 is ex-facie prejudicial on its face of record as deceased was never in employment of the appellants; that claimant Mahipal in his cross-examination dated 21.9.2012 has admitted that he does not have any documentary evidence regarding employment of his son; that the award is passed on the presumption and inference by the Commissioner that the appellants had deliberately not filed the attendance register and salary register; that the deceased himself violated the safety rules as provided in Rule 36 of Indian Electricity Rules, 1956; that the award is based on false, incorrect and hypothetical presumption as the Commissioner has come to the conclusion that there was a relationship of master and servant between the deceased and appellants which was not correct.

After hearing learned Counsel for the parties and on perusal of record, we find that Pankaj Kumar (S.S.O.) D.W. 3 produced by the appellant had clearly stated that deceased was working as a contractor. Once the electricity connection is given to a consumer, it is the duty of the department to maintain it. Admittedly, the deceased died while repairing fault in the transformer and the department had shut down the line for this purpose, but it appears that the line was inadvertently resumed by the appellants without verifying as to whether the fault had been repaired or not, therefore, it cannot be said that his death was not caused during course of employment. Findings of the Tribunal in this regard are thus:

In the circumstances, the findings recorded by the Tribunal as well as evidence on record, we are of the view that the Tribunal has rightly awarded a sum of Rs. 6,16,772/- as compensation to the claimants-respondents as death of their son was caused during course of employment holding him to be an employee.

The appeal is, accordingly, dismissed.