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O. Kay Electric Company Vs. Mrs. Laxmi Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Reported in(1968)IILLJ323Ori
AppellantO. Kay Electric Company
RespondentMrs. Laxmi Devi and ors.
Cases ReferredGouri Kicker(sic) Bhokat v. Radha Kissen Cotton Mills A.I.R.
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........arguments.the order passed on 28 january 1961 runs thus:v. n. diwan, partner of o. kay electric company, musafir bhagat, and his lawyer, lawyer of hindustan steel (private), ltd., claimant and her representative dhuliswar bastia present. it is admitted by all parties-o. kay electric company, musafir bhagat and hindustan steel (private), ltd., that the workman died on duty for which compensation should be paid. the difference was as to who should pay the compensation. heard arguments on this point. put up on 31 january 1961 for judgment.from the aforesaid orders it is manifest that no issues were framed and the parties were given no opportunity to adduce evidence on their point of contest as to who was the employer or the principal. there was a confession that the workman died on duty......

G.K. Misra, J.

1. Ram Parsidh Singh Mebto was electrocuted and died on 22 March 1969. The Hindustan Steel (Private), Ltd. Rourkela, submitted a preliminary report of the accident on 33 March 1959. It was mentioned therein that the deceased was working under O. Kay Electric Company (hereinafter to be referred to as the company), and the probable cause given was accidental contact with live line, in the colums for precaution taken to prevent such accident, it was noted that the contract (the company) had been inserted in writing and several times verbally to take shut-downs in writing and work on the line only when line-clear slip is issued. On receipt of this report, the labour welfare officer of the State addressed a letter to the company. It was mentioned therein that Sri Narang, a representative of the company, had discussions with the labour welfare officer when the latter pointed out that a report in form EE of the Workmen's Compensation Act (hereinafter to be referred to as the Act) was to be submitted and a copy of the pro forma EE was sent to the company. On 24 April 1959 the widow of the deceased filed an application claiming compensation. On 25 April 1959, the company submitted the report of the fatel accident in form EE in which the death of the workman was stated to have taken place at 2-15 pm. on 23 March 1959 in sector 2, Roprkela-2. The manner in which the deceased was employed at the time was mentioned as electrician line-man, and the cause of accident was given as accidental electrocution. The Hindustan Steel (Private), Ltd., the company and one Musafir Bhagat filed their written statements.

2. In the written statement, the Hindustan Steel (Private), Ltd., took the plea that it was not only not the employer but was also not the principal employer and that the company was liable as the deceased was the workman under the latter. Even under the admission of the company that deceased was working under Musafir Bhagat, a petty con-tractor, the company is liable.

3. In the written statement filed by the company, the submission of the report in form EE was admitted. The company's liability to pay compensation was denied on the allegations that the deceased was an employee under his petty contractor Musafir Bhagat and that control of the street light was under the charge of the electrical department of the Hindustan Steel, Ltd., who is the principal under Section 12 of the Act. It was farther averred that the construction of the overhead lines was in progress which was energised without intimation to the company and that the deceased was working on the particular portion of the line from the morning on his own accord.

4. Musafir Bhagat filed written statement stating that he was a worker employed on piece-rate basis under the company and that the deceased was a workman employed by the company, who was liable to pay compensation.

5. The Commissioner held that the company was either the principal or the employer and was liable to pay compensation. Against this order, the appeal has been filed.

6. Sri Raghunath Das contends that the Com-missioner gave no opportunities to the parties to adduce evidence and that the finding being based on no evidence is contrary to law and that the case should be remanded for further enquiry.

7. On 24 March 1860, the Commissioner passed an order-

The employer O. Kay Electric Company denial the responsibility. Notice to both parties to appear on 2l April 1960 and adduce evidence.

By subsequent order; however, the Commissioner added the Hindustan Steel, Ltd., and Musafir Bhagat who filed written statement a, On 25 January 1961, the Commissioner passed the following order:

The claimant is present. Sri V. N. Diwan partner of the O. Kay Electrical Company and Musafir Bhagat are present. I am busy otherwise. Fix 88 January 1961 for arguments.

The order passed on 28 January 1961 runs thus:

V. N. Diwan, partner of O. Kay Electric Company, Musafir Bhagat, and his lawyer, lawyer of Hindustan Steel (Private), Ltd., claimant and her representative Dhuliswar Bastia present. It is admitted by all parties-O. Kay Electric Company, Musafir Bhagat and Hindustan Steel (Private), Ltd., that the workman died on duty for which compensation should be paid. The difference was as to who should pay the compensation. Heard arguments on this point. Put up on 31 January 1961 for Judgment.

From the aforesaid orders it is manifest that no issues were framed and the parties were given no opportunity to adduce evidence on their point of contest as to who was the employer or the principal. There was a confession that the workman died on duty. The question must fee taken to have been closed.

8. Section 2(1)(e) of the Act deflate an employer. It is an inclusive definition and not exhaustive. A contractor comes within this definition. Who is an employer within its definition is a question of fact depending upon the facts of each particular case, Section 3(1) lays down employer's liability for compensation. If personal injury is caused to a workman by accident arising out of an accident in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chap. II. A report of fatal accident is to be given under Section 10B, and Rule 11 of the Workman's Compensation Rules, 1924, lays down that the report required by Section 10B shall be in form EE Station 12 prescribe the liabilities of the principal and the contractor and the provisions regarding inquiry. Under Sub-section (3), nothing in this section shall be construed at preventing a workman from recovering compensation from the contractor instead of the principal. With reference to these provisions and in the context of contest of the partite, the Commissioner was to determine as to who was one principal or the contractor. He could ask either the con-tractor or the principal to pay the compensation. In case the principal pays the compensation under Sub-section (3), he shall be entitled to be indemnified by the contractor. Sri Raghunath Das contends that though the Commissioner found that the company was either the principal or the employer, the finding is based on no evidence. According to him, Musafir Bhagat was the employer and Hindustan Steel, Ltd., was the principal.

9. The powers of and the procedure to be followed by the Commissioner have been laid down under Sections 23 to 25 of the Act. Under Section 23. the Commissioner shall have all the powers of a civil Court under the Code of Civil Procedure for the purpose of taking evidence on cash and of enforcing the attendance of witnesses and compelling the prosecution of documents and material objects. Section 25 prescribes that the Commissioner shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds Section 32 employers the State Government to make rules to carry out the purpose of this Act. Part V of the rules (Rules 19 to 43) prescribes the procedure. Under Rule 21 notice to an opposite party is given. Under Rule 28 issues are to be framed. In recording the issues, the Com-missioner shall distinguish between the issues of fact and law. The Commissioner is thus to decide the case almost like a civil writ though mostly in a summary manner.

10. In this case, no issues have been framed and the partial have not been given any opportunity to adduce evidence. The trial is, therefore, contrary to the statutory procedure.

11. It was contended that as the company submitted the fatal accident report in form EE admitting that it was the employer, there was hardly anything more to be investigated into. The argument is not altogether without force. But this report is a piece of evidence to be considered along with other evidence that may be adduced at the trial. The parties cannot be shut down from exercising their right of adducing evidence in support of their case.

12. An important point of law arises as to whether the aforesaid objection can be taken up in appeals. Section 30(1) of the Act effects that an appeal shall lie to the High Court from the following orders of a Commissioner, namely:

(a) an order awarding as compensation a lamp sum.

The first proviso to Sub-section (1) is that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. The phrase 'substantial question of law' must be given a wider construction than in Section 110, Civil Procedure Code. The finding of a Commissioner based on no evidence mast be treated as a substantial question of law. The sub-section makes it quite clear that no appeal lies from a pure finding of fact. If on assessment of evidence the Commissioner comes to a conclusion that the company is the employer, the finding cannot he assailed in appeal-Cooling Equipment v. Zainab Bibi AIR 1943 Lah. 52, a Division Bench of that Court laid down-

It is clear that the intention of the legislature was that on the question of fact the finding of the Commissioner should not be challenged. The proper interpretation to be put upon the proviso is to limit the power of the Court to interfere only in such findings of fact as may be necessary for the determination of the questions of law involved. We have little doubt that the learned Chief Justice in expressing the view already quoted from Gouri Kicker(sic) Bhokat v. Radha Kissen Cotton Mills A.I.R. 1933 Cal. 22(sic) meant that only those questions of fact are open to reconsideration which we connected with points of law and necessary for the determination of the points of law. Where the question of fact is wholly independent of any question of law, the High Court in appeal is, in our view, board by the flading of fact arrived a by Commissioner.

The aforesaid passage lays down the law correctly.

13. In this case, the mandatory procedure for giving opportunity to the parties to adduce evidence has not been followed. The case must go back on remand to the Commissioner who should frame relevant issued in the light of the observations made above and give fell opportunities to the parties to lead its evidence. As the compensation amount has already been received by the widow of the deceased. the remand would entail no hardship to her. She would not be asked to refund the compensation.

14. The appeal succeeds, the judgment of the Commissioner dated 31 January 1961 is set aside and the case is remanded to him for disposal in accordance with law and the observations made above. Parties are to bear their own costs in the appeal.

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