Guptha Enterprises vs Irusappan and Another

S.K. Krishnan, J.—The second respondent in C.M.A.No.811 of 1990 namely, M/s. Gupta Enterprises is the appellant. Aggrieved over the

judgment made in CM.A.811/90 allowing the appeal filed by the workman, the Company has preferred this Appeal.

The workman, Irusappan filed an application for grant of compensation for the injuries and permanent disability of 25% sustained by him during

the course of his employment on 18.11.1986 under the appellant. The appellant herein resisted the claim on the ground that he was never under the

employment of the appellant and they are also not aware of the accident said to have taken place on 18.11.96. On hearing both sides and also

after perusing the materials on records, this Court allowed the appeal holding that the 1st respondent herein was a workman under the appellant

and he is entitled to receive Rs. 26,696 as compensation together with interest at the rate of 12% per annum. Aggrieved over the same, the

Company-M/s.Gupta Enterprises has preferred this Appeal.

The only point that arise for consideration in this appeal is whether this appeal can be allowed or not ?

The appellant herein M/s Guptha Enterprises, is running its business at Sydenhams Road, Madras-12 from 1985. The contention of the

appellant is that the first respondent never worked as an employee under them at any point of time. It is stated that the first respondent attended the

services of the appellant Company from 1983 onwards. It is contended by the appellant that the first respondent has not established the fact that

he was working as a labourer under the appellant from 1983 onwards. In this connection, the learned counsel appearing for the appellant would

contend that the Company itself was established during the year 1985 as per the Certificate of Registration issued under Form E. In such

circumstances, the learned counsel would point out that the first respondent could not have attended the work under the appellant as a worker

from 1983 onwards. In this juncture, it is pertinent to discuss relevant grounds raised by the appellant in this appeal.

(a) With regard to the relief of compensation sought for by the first respondent under Workmen''s Compensation Act, the first respondent has not

established before the Commissioner for Workmen''s Compensation that he was employed under the appellant. Inspite of that the learned Judge of

this Court without considering this aspect held that the first respondent is a workman and entitled to receive the said compensation for the injuries

sustained by him during the course of his employment under the appellant.

(b) The learned counsel appearing for the appellant has referred one another ground that the learned Judge of this Court instead of remitting the

matter to the Commissioner for Workmen''s Compensation for fresh disposal, has assumed the role of the workmen''s Compensation

Commissioner and set aside the order passed by the Commissioner.

(c) Yet another ground urged is that the learned Judge while disposing of matter awarded interest at the rate of 12% per annum in favour of the

workman which is unsustainable. It is pointed out by the learned Judge while fixing the interest has assumed the role of the Commissioner,

Workmen''s Compensation.

In this connection, the learned counsel appearing for the first respondent would vehemently contend that since the Commissioner has committed

an apparent error while deciding the matter. In such circumstances, while considering the matter, the learned Judge of this Court after verifying the

relevant records produced by the workman came to the conclusion that the Deputy Commissioner of Labour has committed an apparent error.

Since the Deputy Commissioner of Labour has not discussed the relevant facts referred in Exs. A1, A3 and came to the wrong conclusion that the

workman/first respondent has not established his case before him, however, the learned Judge has elaborately discussed the relevant facts referred

in Exs. A1 and A3 and came to the definite conclusion that the workman sustained injury during the course of employment under the appellant.

Since those documents (Exs A1 and A3) were brought to the Judicial notice of the learned Judge while deciding the matter, it is pointed out by the

learned counsel appearing for the first respondent that the learned Judge has rightly decided the matter and accordingly decided the matter in

favour of the workman. It is pointed out that there is nothing wrong to decide the issues when the matters were brought to the judicial notice of the

learned Judge. With regard to another issue in respect of fixing of rate of interest, the appellant herein has stated that in this regard also the learned

Judge has assumed the role of the Commissioner for Workmen''s Compensation and fixed the rate of interest at 12 % per annum. It is to be noted

that the learned Judge has fixed the rate of interest considering the circumstances stated by the first respondent herein. It is also to be noted that the

learned Judge fixed the rate of interest considering the plight of the 1st respondent and while considering the case the learned Judge has exercised

his judicial power. In the said circumstances, it cannot be construed as neither illegal nor improper. It could be seen that the learned Judge has

applied the discretionary powers of this Court and has got every right to fix the rate of interest since the learned Judge has satisfied the reasons

stated by the first respondent.

Even though the appellant herein denied that the first respondent never attended work as a workman under them, the order passed by the

learned Judge is sustainable under law and or on facts. In this connection, it is pertinent to refer to the simultaneous proceedings initiated by the

workman before the Court of law. It is pointed out that after initiation of the proceedings before the Commissioner, Workmen''s Compensation,

the workman raised an Industrial Dispute in I.D.No.94 of 1988 before the Principal Labour Court, Madras. It is seen that the learned Labour

Judge, Madras has passed an award in favour of the workman on 24.5.1994. In that award, the learned Judge directed the Company to reinstate

the workman with full backwages, continuity of service and other attendant benefits. It is seen that the Management has preferred writ petition in

W.P.No.9068 of 1995 before this Court and challenged the said order. The learned Judge in paragraph 7 of the order as held as follows:

Therefore, I am inclined to hold that there were sufficient materials for the Labour Court to have recorded the finding in favour of the first

respondent and I see no reason to interfere with the said findings.

The learned counsel appearing for the appellant would point out that the employer and the employee relationship has not been established by the

workman. In such circumstances, without considering this aspect, the learned Judge ought not to have passed the order in favour of the workman.

In this connection, it is pointed out that even though the workman has not produced the relevant records to establish this fact, however, the

workman issued a notice dated 11.4.1987 to the appellant. In spite of the receipt of the said notice, the appellant has not come forward to issue

any reply repudiating the allegations referred in the said notice. It is pointed out that the burden lies only on the appellant to establish that the

workman was not at all employed under them. The learned counsel appearing for the first respondent would point out that if the stand taken by the

workman is found to be false, the appellant would have produced the relevant records to establish the fact that the first respondent never worked

under it at any point of time. Since the appellant has not come forward to produce the relevant documents to establish this fact, considering the

circumstances of the case, while deciding the matter, the learned Judge has taken an adverse inference and accordingly the learned Judge came to

the conclusion that the first respondent was a workman under the appellant and sustained injuries while he was working under them.

In the light of the discussion held above, we are not inclined to allow this appeal in favour of the appellant. Moreover, the appellant has not

established his case by producing the relevant documents before the concerned authority. In such circumstances, we are satisfied with the reasons

stated by the learned Judge while allowing the Civil Miscellaneous Application. We do not therefore think it proper to interfere with the order

passed by the learned Judge of this Court and accordingly, this appeal is dismissed. Consequently, connected C.M.Ps are also dismissed.