Smt. Sakribai vs M.P. Government and Another

N.K. Mody, J.—This order shall also govern the disposal of M.A. Nos. 830/2004 & 831/2004, as all the appeals are arising out of one accident. In all the appeals the respondents are one and the same and the order is passed by Commissioner for Workmen''s Compensation (Labour Court) Ratlam.

The appeal is admitted on live following substantial question of law:

Whether the learned Workmen''s Compensation Commissioner has committed a gross error of law in dismissing the claim petition filed by the appellant?

Short facts of the case are that the appellant in all the cases filed a claim petition under the provisions of Workmen''s Compensation Act before the learned Court below alleging that appellants are, resident of Tehsil Ranapur, District Jhabua. It was alleged that resident No. 1 was executing the work of construction of Dam and for this purpose respondent No. 2 was authorized by respondent No. 1. Further case of appellants was that in the year 1995, respondent No. 2 was executing work on spot and the appellants were also engaged by respondent No. 2 as labour on payment of wages @ Rs. 30/- per day. It was alleged that on 29.5.1995, when all the appellants were discharging their duties by digging the land, at that time there was a landslide and all the appellants were buried. It was alleged that appellants were brought outside and were sent to Primary Health Center Ranapur. Appellants sustained injuries, therefore, appellants were brought to District Hospital Jhabua, where it was found that appellants sustained bony injuries and the treatment was given to the appellants. In the claim petition it was alleged that since appellants were under the employment of respondents, therefore, appellants are entitle for compensation.

The claim petition was contested by the respondents on various grounds including on the ground that the appellants were not Employed by the respondents on the date of accident, It was alleged that since the appellants ware not employed, therefore, claim petition is not maintainable under the provisions of Workmen''s Compensation Act, as, there was no relationship between the appellants and respondents of employer and employee. It was prayed that the claim petition be dismissed.

After framing of issues and recording of evidence learned Court below dismissed the claim petition holding that appellants failed to prove that appellants were working on the site as employee of respondents against which present appeal has been filed.

Learned Counsel for the appellants submit that on that date more than 100 persons were working at site. Appellants sustained injuries. Appellants were taken to hospital of which the M.L.C. Exhibit P-1 is on record and in the M.L.C itself it was mentioned that appellants were brought by Mr. Geete Sub Engineer. Learned Counsel submits that Mr. Geete had appeared in the witness box and had denied that any accident has occurred. Learned Counsel further submits that to prove that appellants were not engaged by the respondents, muster roll has been filed by respondents, which is Exhibit D-1. It is submitted that in muster roll name of 158 labours have been mentioned. It is submitted that Exhibit P-1 muster roll runs in 7 pages. It is further submitted that first five pages of the muster roll are bearing the seal of Sub Divisional Officer and also serial number, which starts from 21707 and goes upto 21710. Learned Counsel submits that thereafter in the last three pages neither there is seal of department nor any number is mentioned. It is submitted that in the facts and circumstances of the case learned Court below committed error in holding that appellants were not working at site on the date of accident.

Mr. S.D. Bohra, learned Counsel for respondents submit that from perusal of the record it is evident that appellants were never employed as labour. It is submitted that evidence has already been appreciated by the learned Court below which cannot be re-appreciated while deciding the question of law by this Court.

From perusal of the record it appears that appellants are poor labours. Accident occurred on 29.5.1995 undisputedly on that date construction work of dam was going on and more than 100 labours were working on spot. It is also not in dispute that on that very date appellants sustained injuries and the appellants were brought to Primary Health Center Ranapur, and the appellants were unconscious. In Exhibit P-1, which is M.L.C. report it is mentioned that appellant sustained injuries when he was working at the site and, it is also mentioned in the M.L.C. that appellant was brought to the primary health center by Mr. Geete Sub Engineer the Muster roll, which has been filed by the respondents as Exhibit D-1, runs in 7 pages to show that appellant was not employed at the relevant time neither bearing the seal of the department nor the serial number on Last three pages. Neither any explanation has been given for the same, nor this aspect of the case has been considered be the learned Court below in holding that appellants were not employed by the respondents. Undisputedly appellants are labours. Presence of appellants'' itself was sufficient to hold that appellants were engaged by the respondents. It is surprising that Geete Sub Engineer whose name was mentioned by the Government Doctor did not hesitate in denying the presence of appellants on spot.

9 Since the learned Court below has not decided the amount of compensation for which the appellants would have been entitle in case it would have been found that appellants were the employee of the respondents therefore, this Court have no option except to set aside the findings of the learned Court below and remand the case.

In view of this all the appeals stand allowed. The impugned order passed by learned Court below whereby the claim petition filed by the appellants were dismissed holding that appellants were not employee of respondents are set aside with the direction to the Court below to decide the entitlement of the appellants for compensation. Parties are directed to remain present before the Court below on 10th January, 2008.

With the aforesaid observations all the appeals stand disposed of. No order as to costs.