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Dhulia Taluka Sahakari Kharadi Vikri and Prakriya Society and Another Vs. Savitraban and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberR.A. Nos. 327 of 1978 and 208 of 1979
Judge
Reported in[1981]132ITR637a(Bom); (1985)ILLJ99Bom
Acts Workmen's Compensation Act, 1923 - Sections 2(1)
AppellantDhulia Taluka Sahakari Kharadi Vikri and Prakriya Society and Another
RespondentSavitraban and Others
Excerpt:
.....recovered from members not sufficient to establish relationship of employer and employee between members and coolies - held, society is alone employer of coolies and cannot deny responsibility for paying compensation. - - against the produce handed over to it, the society pays to its members advances which are recovered from them with interest as well as rent of the warehouse when the produce is sold. 7,000/- as compensation per the provisions of the workmen's compensation act, 1923 (hereinafter referred to as 'the said act'). to this application the society, the agriculturist member as well as the state warehousing corporation were joined as opposite party nos. the society merely allowed the members to store their goods in the warehouse and recovered from them both the..........however took the stand that the goods did not belong to it and it was merely a pledgee of the goods. the society merely allowed the members to store their goods in the warehouse and recovered from them both the warehousing charges as well as coolie charges for stacking and removing them. the labourers engaged either for stacking or for removal were in fact the labourers of the members since the remuneration paid to the coolies was ultimately recovered from them. the learned commissioner held that both opponent no. 1, society and the opponent no. 2, member were responsible to pay the compensation and by his order dated the 14th march, 1977 directed them to pay the compensation of rs. 7,000/- to the applicant. it is aggrieved by this decision that both the opponents have filed the.....
Judgment:

1. Appeal No. 327 of 1978 is filed by the original opponent No. 1, Dhulia Taluka Sahakari Kharedi Vikri and Prakriya Society (hereinafter referred to as 'opponent No. 1') and Appeal No. 208 of 1979 filed by the original opponent No. 2, Chandrakant Anandrao Shinde (hereinafter referred to as 'opponent No. 2'). The facts are that opponent No. 1, Society carries on the business of storing and selling of the agricultural produce on behalf of its agriculturist members. For this purpose, it hires space on rental basis in a warehouse which belongs to opponent No. 3, the State Warehousing Corporation. The produce brought by the member-agriculturists is stored by opponent No. 1, Society in the warehouse till it is sold. Against the produce handed over to it, the Society pays to its members advances which are recovered from them with interest as well as rent of the warehouse when the produce is sold. The Society stores the produce in the warehouse with the help of the coolies or labourers hired by it. It then remains in the custody of the Society and cannot be taken out from the warehouse without the permission of the Society. As and when the produce is to be sold, it is taken out from the warehouse again with the help of the coolies hired by the Society. The Society of course recovers from the members the remuneration paid to the coolies along with other charges.

2. Opponent No. 2, Chandrakant was a member of opponent No. 1, Society, and he had handed over to the Society on the 19th October, 1970, 70 bags of groundnut which were stored in the warehouse. He has described it as transaction of pledge. Thereafter on the 8th September, 1971 he wanted the groundnuts to be sold. Hence the Society had hired four coolies for removal of the groundnuts from the warehouse to the market yard for sale. The deceased-workman Narayan Tanaji was one of the four coolies. While they were removing the said bags, a stack of bags nearby collapsed and fell on Narayan who was buried under them. When he was rescued, he was found unconscious. He was removed to the hospital but died later on the same day.

3. The applicant who is the widow of the deceased therefore filed the present application for compensation and claimed an amount of Rs. 7,000/- as compensation per the provisions of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the said act'). To this application the Society, the agriculturist member as well as the State Warehousing Corporation were joined as opposite party Nos. 1 to 3 respectively. The application was contested by all the three. Opponent No. 3 filed their written statement contending that since the space in the warehouse was given or rental basis for storing to opponent No. 1, Society, they had no concern either with the stacking or the removal of the goods stored there and had no occasion to hire coolies for the purpose. Opponent No. 2, member contended that the goods were pledged by him with the Society and after he handed them over to the Society, he had no control over them. The stacking storing and removal of the goods was to be done by the Society through the labourers hired by it. The members could not on their own either stock the goods or remove them from the warehouse. The Society however took the stand that the goods did not belong to it and it was merely a pledgee of the goods. The Society merely allowed the members to store their goods in the warehouse and recovered from them both the warehousing charges as well as coolie charges for stacking and removing them. The labourers engaged either for stacking or for removal were in fact the labourers of the members since the remuneration paid to the coolies was ultimately recovered from them. The learned Commissioner held that both opponent No. 1, Society and the opponent No. 2, member were responsible to pay the compensation and by his order dated the 14th March, 1977 directed them to pay the compensation of Rs. 7,000/- to the applicant. It is aggrieved by this decision that both the opponents have filed the present appeals.

4. The short point that falls for consideration in both these appeals is, which of the two opponents is responsible for payment of the compensation. The answer will depend on who is held to be an employer within the meaning of S. 2(1)(e) of the said Act. The said S. 2(1)(e) defines employer as follows :

'Section 2(1)(e) - 'employer' includes anybody of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him.'

In view of this definition, it is necessary to find out as to who had in fact engaged the deceased workman for doing the work in the course of which he met with the unfortunate accident. The evidence of Kisanrao, who is an employee of opponent No. 1, Society throws an illuminating light on the nature of the relationship between the Society and its members as well as between the Society and the coolies hired for doing the work of stacking and removing the goods. In his deposition, he has stated that the deceased was working in a batch of coolies and it was the leader of the batch who was asked to do the work of taking out the bags from the godown. It was one Anant Sitaram Choudhary, a clerk of the Society who at the instance of the witness had gone to call the leader to do the said work. He also stated that the groundnut bags in question were pledged with the Society against an advance of a loan of Rs. 3,700/- on the 19th October, 1970. The opponent No. 2 was to pay interest at the rate of 9 1/2 per cent. per annum on the said advance. According to him first the Society pays the rent of the godown to opponent No. 3, the State Warehousing Corporation and subsequently recovers it from the members. He also admitted that it is the Society who calls the coolies and gets all the work done from and also pays their charges initially. It is only subsequently that it recovers the said charges from the members. He admitted that without the permission of the Society no goods can be removed from the godown. According to him he had filled in the form that was required for removing the bags in question and then handed it over to the godown-keeper. It was he further who had told the batch of coolies hired by the Society to take out the bags from the godown. He admitted that the forms which are filled in for storing and removing the goods are required to be signed by one of the coolies.

These facts are by themselves sufficient to determine as to who is the employer of the coolies engaged for stacking and removing the goods. The batch of coolies is hired by the Society. It is only such batch which can stack and remove the goods from the godown. The Society pays them their hire-charges or wages directly. Although these charges are later recovered from the members, the members have no control over their hiring and are not responsible to them for their payment. In fact no coolie other than the coolie hired by the Society can enter the godown for either stacking or removing the goods. The mere fact that ultimately the charges paid to the coolies are recovered from the members is not sufficient to establish the relationship of an employer and employee between the members and the coolies. The coolies are not responsible to members and cannot look to them for payment. They are hired by and responsible for proper discharge of their work to the Society. In the circumstances the Society alone is the employer of the coolies. The learned Commissioner was therefore wrong in holding that opponent No. 2, member was also an employer and responsible for paying the compensation. The decision of the Commissioner has therefore to be set aside to the extent.

5. In the result, I allow Appeal No. 208 of 1979 filed by opponent No. 2, the member and hold that he is not responsible for making the payment of compensation to the applicant.

I dismiss Appeal No. 327 of 1978 filed by opponent No. 1, Society and hold that opponent No. 1 alone is liable to pay the amount of compensation as awarded by the Commissioner. The award of the learned Commissioner is therefore modified and it is directed that opponent No. 1, Society alone should pay to the applicant the amount of Rs. 7,000/- as compensation. The Commissioner will pay the amount to the applicant without insisting upon any security.

6. The stay granted by this Court against the payment of the amount to the applicant is hereby vacated.

7. Opponent No. 1, Society alone to pay the costs throughout to the applicant.


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