M/s Regency Health Care vs State of Uttarakhand and others

Heard learned counsel for the parties.

Petitioner has challenged the order dated 11.09.2009

passed by Deputy Labour Commissioner, Kumaon Range,

Haldwani, Nainital whereby the petitioner has been directed to

pay compensation of Rs. 4,05,457/- to respondent no. 6.

Petitioner has also challenged the recovery citation dated

16.11.2009.

Petitioner (M/s Regency Health Care) is the

manufacturer of medicine. It has less than twenty employees.

Petitioner is a partnership firm, duly registered under the

Partnership Act and also registered under the provisions of

Indian Factories Act and Rules. On 30.05.2009, a notice under

section 10 of the Employees''s Compensation Act (hereinafter

referred as the Act) was issued to the petitioner stating therein

that it had come to the knowledge of respondent no. 3 that on

29.05.2009, during the course of employment, one workman,

namely, Satish Kumar aged 30 years had died. It is further

written in the notice that since the petitioner was the employer,

therefore, he is liable to pay a sum of Rs. 3,74,364/- as

compensation to respondent no. 6 and the said amount was to

be deposited in the court of Deputy Labour Commissioner.

After receiving said notice, the petitioner in his reply stated that

he had no connection with the person, namely, Satish Kumar as

he was not the workman in the petitioner''s unit, therefore, he

was not covered under the definition of workman. Thereafter,

on 11.09.2009 the order impugned was passed, whereby the

petitioner was directed to pay a sum of Rs. 4,05,457/- to the

respondent no. 6 as compensation. On 11.02.2009 recovery

citation was also issued. Against the said orders, writ petition

was filed.

Learned counsel for the petitioner by relying on

Section 10(A) of the Act, submits that after receiving

information from any source about the death of workman, it is

the duty of the Commissioner to send notice by the registered

post to the workman''s employer requiring him to submit,

within thirty days of the service of the notice, a statement, in

the prescribed form, giving the circumstances attending the

death of the workman and indicating whether, in the opinion of

the employer, he is or is not liable to deposit compensation on

account of death. It is the submission of the learned counsel for

the petitioner that this was not done by the Commissioner;

therefore, order impugned is bad in law. It is further submitted

that no determination of compensation under section 10-A of

the Act can be done in accordance with the provision of law

and respondent no. 2 acted illegal and unjustifiably by issuing

recovery letter for alleged payment of compensation of Rs.

4,05,457/- to legal heirs of deceased (Satish Kumar). He further

submitted that the direction to pay the compensation can only

be issued by passing order under Section 20 of the Act.

Learned counsel for the petitioner further submits

that in the present case, no information as provided under

Section 10A (4) of the Act, was given to the respondent no. 6 by

the Commissioner; therefore, the order impugned cannot be

said a valid order and deserves to be set aside. He submits that

no claim was filed by respondent no. 6. It is also submitted that

before passing order for grant of compensation, proper

adjudication should be done, which has not been done in the

present case.

Shri M.C. Kandpal, learned Senior Counsel for

respondent no. 6 submits that first of all the petition is not

maintainable, as the petitioner has alternative remedy under

section 30 of the Act. He further submitted that there is

mandatory provision of depositing the entire amount before

filing of the appeal and for avoiding the same, appeal was not

filed and instant writ petition is filed. Learned Senior Counsel

further submitted that, in fact, son of respondent no. 6 was the

employee of the petitioner, and therefore, the award of

compensation has rightly been awarded in favour of the

petitioner. Learned Senior Counsel further submitted that it is

admitted that son of respondent no. 6 had died in the premises

of the petitioner''s factory. It is also submitted that the

Commissioner got enquiry conducted and thereafter also heard

the petitioner before passing the order. He submitted that there

is no illegality in the order impugned and writ petition

deserves to the dismissed.

I have considered the submission of the learned

counsel for the parties.

Section 10A of the Act provides power to require

from employers statements regarding fatal accidents. This

section is being reproduced below:-

"Where a Commissioner receives

information from any source that [an

employee] has died as a result of an accident

arising out of and in the course of his

employment, he may send by registered post

a notice to the workman''s employer requiring

him to submit, within thirty days of the

service of the notice, a statement, in the

prescribed form, giving the circumstances

attending the death of the [employee], and

indicating whether, in the opinion of the

employer, he is or is not liable to deposit

compensation on account of the death."

From the reading of the above section, it is clear that

the section only provides for informing the employers about

the accident and asking him to submit his statement in the

prescribed form, giving the circumstances attending the death

of the employee. Further Sub-Section (4) of Section 10A of the

Act provides that if the employer has disclaimed liability, the

Commissioner is required to inform the dependants of the

deceased that it is open for them to prefer a claim for

compensation before the Commissioner. Sub-Section (4) of

Section 10A of the Act read as follows:-

"Where the employer has so disclaimed

liability, the Commissioner, after such enquiry

as he may think fit, may inform any of the

dependants of the deceased [employee] that it

is open to the dependants to prefer a claim for

compensation, and may give them such other

further information as he may think fit."

In the present case, I find that neither provision of

Section 10A (1) of the Act, nor provision of Sub-Section 4 of

Section 10A of the Act have been complied. I find that even the

claim petition for compensation was not filed by respondent

no. 6 before the Commissioner. The Commissioner himself

asked for the report and it appears that on the basis of the

report, the award has been passed. In such circumstances, filing

of appeal is not necessary. From the perusal of the order as well

as from the perusal of the record, it is clear that there is no

adjudication in the matter. It is obligatory on the part of the

Commissioner to follow the procedure in proper manner,

which has been prescribed under Section 10A(1) and Sub-

Section 4 of Section 10A of the Act. Same has not been followed.

Since, neither any claim petition was filed by the respondent

no. 6, nor there is any adjudication in the claim the

Commissioner committed error in passing the order for award

of compensation.

Accordingly, the writ petition is allowed. Order

dated 11.09.2009 and recovery citation dated 16.11.2009 are

hereby quashed. However, respondent no. 6 is permitted to file

claim for compensation before the Labour Commissioner. In

case, such claim is filed, the Labour Commissioner is directed

to take a decision on the same in accordance with law within a

period of two months from the date of production of the

certified copy of the order; keeping in mind that respondent no.

6 is 80 years old.

No order as to cost.