Pradeep Majumdar vs Duvas Bai and Others

Sanjay K. Agrawal, J.—The appellant/employer, questioning the legality and validity of the award dated 29.9.2008, passed by the Commissioner, Workmen''s Compensation, Korba (for short ''the Commissioner'') in Case No. 24/WC Act/07(F) has filed the instant appeal u/s 30 of the Employees'' Compensation Act, 1923 (for short ''the Act, 1923'') by which the application filed by the workman u/s 10 of the Act, 1923 has been granted.

The brief facts, necessary for disposal of the appeal are as under:

(2.1) The legal representatives of deceased-workman Late Shri Anuj Das filed an application on 26.7.2007 before the Commissioner pleading inter alia that the husband of claimant No. 1 Smt. Das Bai and father of the claimants No. 2 to 4 Shri Anuj Das was employed by Shri Pradeep Majumdar, contractor who has been undertaken centering work in the Municipal Corporation, Korba and came in contact with the high tension electric wire of 11000 volts on 25.3.2004 and suffered death. It was further pleaded that at the time of death, he was aged about 30 years and was earning Rs. 100/- per day and even after accident and due formalities the employer did not pay any sum, leading to filing of the application claiming compensation to the extent of Rs. 2,70,309/- under the provisions of the Act, 1923.

(2.2) The appellant employer filed his written statement opposing the claim petition stating inter alia that the said workman was employed by the Municipal Corporation, Korba and the Municipal Corporation is responsible for payment of compensation, if any, and further submitted that claim application filed on 30.7.2007 is beyond the period of limitation, as prescribed in section 10(1) of the Act of 1923.

(2.3) Thereafter, the respondent No. 2 Municipal Corporation was also noticed by the Commissioner. The Corporation filed reply stating that the work was done by the contractor and the deceased was not the employee or workman of the Corporation, therefore, the Corporation is not responsible for payment of compensation.

(2.4) Respondents claimants examined two witnesses namely Das Bai (A.W. 1) widow of the deceased and Govind (A.W. 2), who was the co-worker/co-workman, working with the deceased, whereas the appellant/employer examined himself and the respondent No. 2/Corporation examined Shri Gyas Ahmed in support of their respective stand.

(2.5) Upon appreciating the pleadings of the parties, the Commissioner framed issues as to whether the death occurred during the course of employment and whether the claim was barred by limitation.

(2.6) The Commissioner, after appreciating the oral and documentary evidence on record, recorded a finding that the deceased was employed by the appellant/non-applicant No. 1 for centering work, awarded to him by the Municipal Corporation, Korba and therefore he is responsible to make payment of compensation.

(2.7) Learned Commissioner also recorded a categorical finding that sufficient cause has been shown by the claimants for not filing the application within a period of two years and granted compensation of Rs. 2,70,309/- along with penalty and interest.

Shri Parag Kotecha, learned Counsel appearing for the appellant-employer submits that learned Commissioner is absolutely unjustified in holding that the appellant was the employer of the deceased-workman on the date of accident. Shri Kotecha further submits that learned Commissioner has committed illegality in the condoning the delay in filing the application filed beyond the period of two years prescribed u/s 10(1) of the Act of 1923.

Per contra, Shri Sanjay Patel, learned Counsel for the respondents/claimants submits that Late Anuj Das was employed by the appellant/employer and sufficient cause has been shown by them for not filing the application within two years from the date of the accident/death. Whereas, Shri Guru, learned Counsel for the respondent No. 2/Corporation also submits that the agreement was entered into with the appellant/employer for centering work, which included transporting and all labour charges, payable to the appellant by the Corporation, therefore, the liability has rightly been fastened upon the appellant/employer.

I have heard learned Counsel for the parties, considered their respective submissions and perused the record of the Commissioner.

This appeal has been admitted for final hearing on following two substantial questions of law:

(i) Whether learned Commissioner, Workmen''s Compensation was justified in holding that the appellant was the employer of the deceased-workman on the date of the accident.

(ii) Whether learned Commissioner, Workmen''s Compensation was justified in condoning the delay in filing the claim petition beyond two years from the date of accident as prescribed in section 10(1) of the Act of 1923.

Findings on the first substantial question of law:

The claimants have examined two witnesses, namely claimant No. 1 herself, who is widow of deceased-workman. She has categorically deposed in her statement before the Court that her husband''s name is Anuj Das, name of the contractor is Pradeep, under whom her husband was working as centering fixer (misteri). The claimants also examined Govind, the co-worker, who was working with the deceased-workman. He deposed clearly that they were working with the contractor Pradeep. Even in the cross-examination he has also stated that the payments were being made by Pradeep, who is the employer and further stated that they were working under the instructions of Pradeep Majumdar.

The appellant Shri Pradeep Majumdar examined himself before the Commissioner and admitted that he was awarded the work by the Municipal Corporation, Korba by Ex. D/1. Shri Gyas Mohammad was got examined on behalf of the respondent-Municipal Corporation, wherein he has stated that in the year 2004 the building was being constructed under the Balmiki Awas Yojna by the Corporation and the centering work was awarded to M/s. K.K. Majumdar. The deceased was employed by the said contractor and during the course of centering work, undertaken by Shri Majumdar, death of Anuj Das occurred. Copy of the agreement has also been filed as Ex. D/3.

Upon consideration of the aforesaid evidence on record, the Commissioner has recorded a finding that the appellant-employer used to take the centering work and material supply in the name of his father K.K. Majumdar. Deceased Anuj Das was employed as centering fixer (misteri) and while working he came in contact of high-tension electric wire and suffered death.

I have also carefully gone through the evidence adduced by the parties before the Commissioner and of the opinion that the findings recorded by the Commissioner that the deceased was the employee of appellant/employer and he died during the course of employment on 25.3.2004 is a finding based on material available on record and there is no perversity in the findings so recorded. I hereby affirm finding so recorded that deceased Anuj Das was a workman of the appellant, who died in the course of employment, while working as centering fixer (misteri) and learned Commissioner is justified in holding that appellant was the employer of the deceased on the date of accident. Thus, the substantial question of law No. 1 is answered accordingly and against the appellant/employer.

Findings on second substantial question of law:

Shri Kotecha, learned Counsel for the appellant submits that the death having occurred on 25.3.2004, the claimants'' application u/s 10(1) of the Act, 1923 ought to have been preferred on or before 24.3.2006 and the application filed for compensation on 30.7.2007 along with an application for condonation of delay was not at all maintainable. He further submits that the Commissioner was not justified in condoning the delay in filing the application, as the cause shown by the claimants for filing the application beyond the period of two years from the date of accident was not a sufficient cause. It is admitted position on record that the sole bread earner of the family Shri Anuj Das, aged about 30 years was working as centering fixer (misteri) under the appellant and was earning Rs. 100/- per day, suddenly died in the accident leaving widow, aged about 23 years and three minor children, and being illiterate villagers, residing at remote village-Tharakpur, Maduvarani, Urga, Tahsil-Kartala, District Korba. In the application filed before the Commissioner it was categorically mentioned that upon death of Shri Anuj Das they were not aware about the exact name and correct address of the employer. Even though when the challan was filed, they could not ascertain name and address of the employer and being poor villagers having no financial means to file the application, which they could file ultimately on 30.7.2007.

Section 10(1) of the Act, 1923 provides that no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given, as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or in case of death within two years from the date of death. However, the fifth proviso to section 10(1) of the Act of 1923 provides that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred in due time as provided in sub-section (1) of section 10, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause.

Thus, by virtue of section 10(1) of the Act, 1923 the claimants'' application u/s 10(1) was to be preferred within two years from fee date of death, however, the Commissioner has jurisdiction to entertain and decide any such claim preferred after a period of two years if he is satisfied that the failure to file the claim was due to sufficient cause. In the case in hand, the Commissioner, on due consideration and after considering the material on record found that sufficient cause has been shown for not filing the application within the period of two years and thereby condoned the delay in filing the application by order dated 29.9.2008.

The Supreme Court in a decision in N. Balakrishnan Vs. M. Krishnamurthy, , has held that once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse.

The Supreme Court in N. Balakrishnan v. M. Krishnamurthy (supra) has held as under:

Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy of the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of Limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

Recently, the Supreme Court in a decision in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, , has laid down the principles for deciding application for condonation of delay, which reads as under:

From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in the proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance or justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

Keeping in view the parameters laid down by the Supreme Court in the aforesaid case, it cannot be held that the finding recorded by the learned Commissioner, exercising the judicial discretion in condoning the delay in filing the application for compensation, is unjustified, specially, considering the status of the claimants and the fact that they have lost sole bread earner of the family and suffered real difficulty in getting the whereabouts of the employer. In the considered opinion of this Court, the learned Commissioner was absolutely justified in condoning the delay in filing the claim petition, holding that there was sufficient cause for preferring the claim beyond the period of two years from the date of death of the workman. The judicial discretion exercised by the learned Commissioner in condoning the delay, finding sufficient cause cannot be said either perverse or arbitrary, requiring interference by this Court in appeal. I hereby affirm the said finding recorded by the learned Commissioner and thus answer this substantial question of law accordingly.

Having answered both the substantial questions of law against the appellant/employer, the appeal deserves to be and is accordingly dismissed.

No order as to costs.