Steeman Company vs Narko Devi

V.D. Misra, C.J.—It is a case of battle between pygmy and a giant-between a poor woman labourer earning Rs. 2.75 per day and the mighty contractors. The latter have all the resources in terms of money to get the best brains whereas the poor starving labourer has just to depend on her luck. I had tried to persuade the contractors to fight only the legal battle and, irrespective of its result, not to insist on the worker paying back the pittance she has been awarded. I had even adjourned the matter to enable the counsel to get instructions. But all in vain. The contractors apparently do not believe in mercy to the poor. They insist on their pound of flesh.

The case has arisen out of circumstances which are very common during any big construction work. The contractors had landed a contract for building a bridge. Narko Devi was employed by the contractors for breaking stones. She was being paid Rs. 2.75 per day. At the site, amongst others, there was a cement concrete mixture. At a distance of about 20 yards from it, according to the Appellants-Contractors, this labourer was required to work. On 11th June, 1970, during the course of work she got up .from her place to fetch an empty bag lying near the mixer. To her bad luck, as she came near the mixer the mixed cement concrete fell from the mixer on her leg. The result was a fracture. She was treated in a hospital. After she was cured it was found that her leg had become short by two inches. The doctor opined that she had suffered disability of 50%. The final certificate from the doctor was obtained on 23rd December, 1970, and application u/s 10(1) read with Section 4(1) of the Workmen''s Compensation Act, 1923, was made on 6th April, 1971. The medical certificate was annexed to this application. Notice was issued to the Appellants which was served on 8th April, 1971, on Mr. V.K. Vig. Notice was for 20th April, 1971. On that day Mr. Vig appeared and the date of hearing was fixed for 23rd April, 1971, at 10.00 a.m. It may be noticed that on 20th April, 1971, the contractors did not file any written statement.

On 23rd April, 1971, written statement was filed by the contractors. Liability was denied on the ground that (1) Narko Devi was a casual labourer and so was not a ''workman'', and (2) the labourer had disobeyed the instructions not to move from the place of her work. In these circumstances it was averred that "the accident did not arise out of and in the course of employment and because of the clear obedience (disobedience?) of the instructions of the non applicant". On that very day the statement of the injured workman was recorded. She gave the facts and inter alia stated that because of the accident to her leg it was not possible for her to work any more. The award was announced the same day. An amount of Rs. 4,200/- was awarded to her.

Appeal was filed u/s 30 of the Workmen''s Compensation Act. Various grounds have been raised. It is contended that proper procedure was not followed and the Appellants were not given an opportunity to cross examine the worker and to led defence.

A preliminary objection has been raised against the maintainability of this appeal. It is contended that it was the duty of the Appellant to file a certificate from the Commissioner showing that the Appellant had deposited the amount awarded to the worker.

I find that this objection was raised by the Registry when the appeal was filed. The attention of the Appellants'' counsel was drawn to the fact that u/s 30 he was required to file a certificate of the Commissioner. The learned Counsel wrote back to say that "No certificate is being filed for the moment. Let this be treated as a petition under Article 227 of the Constitution".

Mr. Malhotra contends that the appeal is maintainable despite the failure to file the requisite certificate. In this connection he refers to a Division Bench judgment of the Patna High Court in Ramnivas Khandelwal and Another Vs. Mt. Mariam, . I am afraid this does not help him at all. In my view it goes against him. In that case the certificate was filed after the time for filing the appeal had expired. An application was made for condonation of delay in filing the certificate. The Court condoned the delay and thereafter heard the appeal. In the instant case no certificate has been filed till today. Question of any condonation of delay, therefore, cannot arise.

It is then contended that there is a footnote to the Grounds of Appeal which says that the money has been deposited with the Commissioner. In my opinion that does not satisfy the provisions of law. Let us read the relevant proviso to Section 30:

"Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the Appellant has deposited with him the amount payable under the order appealed against.

The language is mandatory. It is the duty of the employer-Appellant to file the certificate.

On this aspect an analogy may conveniently be drawn from th provisions of 0.41 Rule 1 Clause (1) which requires "... The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:". It is the settled law that if copy of the decree does not accompany the memorandum of appeal, the appeal is not proper and so not maintainable. Even the Courts have no power to dispense with the production of copy of the decree. The same analogy must be applied in the present case. After all the requirement is based on a very salient principle. Before an employer can be heard in an appeal the legislature wants to make it certain that he has deposited the amount in question which fact has to be evidenced by the certificate and nothing else. In this view of the matter I hold that the appeal is not proper.

As a last resort Mr. Malhotra contends that the proviso in question is ultra vires of the Constitution, since it offends Articles 14 and 19 of the Constitution. I find that no such ground was raised in the appeal and at this stage I will not allow him to raise this plea. Moreover, he is estopped from raising this plea since it had been conceded at the very early stage that the present appeal should be treated as a petition under Article 227 of the Constitution.

Under Article 227 this Court has the power of superintendence over the Tribunals situated in the jurisdiction of the Court. The scope of interference under this Article is by now well settled. While exercising the powers of superintendence the Court cannot exercise the powers vested in it as an Appellate Court. One of the salient principles is that where substantial justice has been done the Court shall not interfere with the impugned order.

In the instent case the Appellants have raised technical defenses. The record of the proceedings, including the award which was announced in the presence of Mr. V.K. Vig, reveals that the contractors had no evidence to produce. The worker had been examined in the presence of Mr. Vig and if he was inclined to cross examine the witness he should have done so. It has been submitted that the contractors were not represented by a lawyer. But then the worker was also not represented by any lawyer. There is nothing on the record to show that any opportunity for producing evidence was asked for by Mr. V.K. Vig at any stage.

A bare reading of Section 2(n) of the Act shows that Narko Devi was a ''workman'' since she was doing the work of the contractor. In the course of her work she had got up to collect an empty bag in which she was to put the stones broken by her. In fact this is a question of fact and I cannot go into the findings arrived at by the Commissioner. The Commissioner has already given an express finding that there was no wilful negligence on the part of the workman.

The result is that the present appeal is dismissed with costs.