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M/s. Five S. Manpower Services Pvt. Ltd. v/s Commissioner, Under Employees Compensation Act, 1923 & Others


Company & Directors' Information:- ACT INDIA LIMITED [Dissolved] CIN = L99999TN1986PLC013555

Company & Directors' Information:- I SERVICES INDIA PRIVATE LIMITED [Active] CIN = U72900DL2003PTC118851

Company & Directors' Information:- S T SERVICES LTD [Active] CIN = L74140WB1989PLC047210

Company & Directors' Information:- M G F SERVICES LIMITED [Amalgamated] CIN = U65910DL1987PLC029599

Company & Directors' Information:- R S SERVICES PRIVATE LIMITED [Active] CIN = U65100DL1989PTC038061

Company & Directors' Information:- R S SERVICES PRIVATE LIMITED [Active] CIN = U74900DL1989PTC038061

Company & Directors' Information:- S J SERVICES PRIVATE LIMITED [Active] CIN = U74140DL1988PTC034427

Company & Directors' Information:- AMP E - SERVICES PRIVATE LIMITED [Active] CIN = U51909MN2013PTC008361

Company & Directors' Information:- E M SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U93090MH2001PTC131924

Company & Directors' Information:- L M J SERVICES LTD [Active] CIN = L51226WB1983PLC035807

Company & Directors' Information:- L M J SERVICES LTD [Active] CIN = L93000WB1983PLC035807

Company & Directors' Information:- G K SERVICES PRIVATE LIMITED [Active] CIN = U65990MH1994PTC078529

Company & Directors' Information:- A K SERVICES PRIVATE LIMITED [Active] CIN = U74899MH1986PTC268851

Company & Directors' Information:- B V SERVICES PVT LTD [Active] CIN = U74140WB1991PTC050946

Company & Directors' Information:- I S A SERVICES PRIVATE LIMITED [Active] CIN = U74140JH1995PTC006387

Company & Directors' Information:- E I C SERVICES PRIVATE LIMITED [Strike Off] CIN = U74899DL1985PTC022426

Company & Directors' Information:- A C SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070774

Company & Directors' Information:- H S SERVICES PRIVATE LIMITED [Active] CIN = U74900KA2014PTC074321

Company & Directors' Information:- G V INDIA SERVICES PRIVATE LIMITED [Active] CIN = U74900DL2010PTC212026

Company & Directors' Information:- A TO Z SERVICES PRIVATE LIMITED [Active] CIN = U74999MH2007PTC168484

Company & Directors' Information:- O P T SERVICES INDIA PRIVATE LIMITED [Active] CIN = U63013DL1996PTC083397

Company & Directors' Information:- P P SERVICES PVT LTD [Active] CIN = U70101WB1991PTC051423

Company & Directors' Information:- A P T SERVICES PRIVATE LIMITED [Amalgamated] CIN = U29219TG1999PTC031903

Company & Directors' Information:- S S SERVICES PVT LTD [Active] CIN = U51109AS1993PTC003956

Company & Directors' Information:- G & G SERVICES PRIVATE LIMITED [Active] CIN = U45201DL2012PTC230905

Company & Directors' Information:- A N Y SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071457

Company & Directors' Information:- N B SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1993PTC056484

Company & Directors' Information:- P C SERVICES PRIVATE LIMITED [Strike Off] CIN = U00894KA1985PTC006606

Company & Directors' Information:- R AND M MANPOWER (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74140KA1995PTC018426

Company & Directors' Information:- M. V. S SERVICES INDIA PRIVATE LIMITED [Active] CIN = U93000DL2013PTC252172

Company & Directors' Information:- S D SERVICES PVT LTD [Active] CIN = U51109AS1998PTC005293

Company & Directors' Information:- H AND B SERVICES LIMITED [Strike Off] CIN = U72900MH2004PTC145775

Company & Directors' Information:- C & R SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U74140KA1996PTC019645

Company & Directors' Information:- E AND A SERVICES (INDIA) PRIVATE LIMITED [Under Process of Striking Off] CIN = U51900MH1989PTC054373

Company & Directors' Information:- A. H. SERVICES PRIVATE LIMITED [Active] CIN = U74990MH2009PTC193917

Company & Directors' Information:- M E R I T SERVICES PRIVATE LIMITED [Strike Off] CIN = U51900MH1999PTC118445

Company & Directors' Information:- P F P SERVICES PRIVATE LIMITED [Active] CIN = U74900MH2009PTC293633

Company & Directors' Information:- P F P SERVICES PRIVATE LIMITED [Active] CIN = U74900WB2009PTC139742

Company & Directors' Information:- J. S. P. SERVICES PRIVATE LIMITED [Active] CIN = U63040DL1996PTC075731

Company & Directors' Information:- M A J MANPOWER SERVICES PRIVATE LIMITED [Active] CIN = U74999BR2020PTC048761

Company & Directors' Information:- INDIA SERVICES LIMITED [Liquidated] CIN = U99999TN1946PLC000976

Company & Directors' Information:- U M S SERVICES LIMITED [Active] CIN = U03210TZ1982PLC001208

Company & Directors' Information:- A T E SERVICES LIMITED [Strike Off] CIN = U74140MH2001PTC132923

Company & Directors' Information:- SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U74140DL1996PTC078465

Company & Directors' Information:- G I SERVICES INDIA LIMITED [Active] CIN = U74140DL2008PLC184088

Company & Directors' Information:- E AND E SERVICES LIMITED [Strike Off] CIN = U65992KL1988PLC005094

Company & Directors' Information:- S R V N SERVICES PRIVATE LIMITED [Strike Off] CIN = U50200DL2004PTC124035

Company & Directors' Information:- B H SERVICES (INDIA) PRIVATE LIMITED [Active] CIN = U74999MH2012FTC227035

Company & Directors' Information:- A R SERVICES PRIVATE LIMITED [Active] CIN = U00000DL2001PTC109578

Company & Directors' Information:- J AND J SERVICES PRIVATE LIMITED [Active] CIN = U51900MH1995PTC092554

Company & Directors' Information:- L B D SERVICES PRIVATE LIMITED [Active] CIN = U00359BR1991PTC004694

Company & Directors' Information:- K. D. MANPOWER SERVICES PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262389

Company & Directors' Information:- R K AND COMPANY MANPOWER PRIVATE LIMITED [Active] CIN = U74920DL2003PTC119871

Company & Directors' Information:- A 2 Z E SERVICES PRIVATE LIMITED [Strike Off] CIN = U72200KA2006PTC039105

Company & Directors' Information:- M P SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U74999PN1999PTC013531

Company & Directors' Information:- B I N A R Y SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72900DL2000PTC103072

Company & Directors' Information:- M C SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74999PN1999PTC013532

Company & Directors' Information:- D & D SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U51909DL1998PTC093967

Company & Directors' Information:- S C L SERVICES PRIVATE LIMITED [Active] CIN = U63012TN2001PTC046650

Company & Directors' Information:- A B SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140DL1998PTC093545

Company & Directors' Information:- G P SERVICES PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC037683

Company & Directors' Information:- T S SERVICES PRIVATE LIMITED [Strike Off] CIN = U85320WB2003PTC095712

Company & Directors' Information:- A. S. V. P. SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999HR2014PTC052304

Company & Directors' Information:- R AND T SERVICES PRIVATE LTD. [Strike Off] CIN = U72501DL1998PTC096640

Company & Directors' Information:- S S SERVICES PVT LTD [Strike Off] CIN = U74140WB1988PTC044009

Company & Directors' Information:- S S D SERVICES PRIVATE LIMITED [Active] CIN = U74910RJ1996PTC012694

Company & Directors' Information:- V & V SERVICES PRIVATE LIMITED [Strike Off] CIN = U74990MH2010PTC206211

Company & Directors' Information:- D S SERVICES PRIVATE LIMITED [Strike Off] CIN = U65923MH2012PTC226482

Company & Directors' Information:- P AND I SERVICES PRIVATE LIMITED [Active] CIN = U63090MH1981PTC024997

Company & Directors' Information:- FIVE S MANPOWER SERVICES PRIVATE LIMITED [Active] CIN = U74900MH2010PTC211688

Company & Directors' Information:- F F C SERVICES PRIVATE LIMITED [Active] CIN = U74900PN2014PTC153348

Company & Directors' Information:- R. B. SERVICES PRIVATE LIMITED [Active] CIN = U74999MH2017PTC302692

Company & Directors' Information:- Q C SERVICES PRIVATE LIMITED [Active] CIN = U74999PN2013PTC148110

Company & Directors' Information:- B S K A SERVICES PRIVATE LIMITED [Strike Off] CIN = U74900WB2013PTC198627

Company & Directors' Information:- S N SERVICES PRIVATE LIMITED [Strike Off] CIN = U74900JK2014PTC004110

Company & Directors' Information:- S M MANPOWER SERVICES PRIVATE LIMITED [Active] CIN = U74910HP2013PTC000494

Company & Directors' Information:- R N SERVICES PRIVATE LIMITED [Strike Off] CIN = U74900CH2013PTC034757

Company & Directors' Information:- R M E-SERVICES PRIVATE LIMITED [Active] CIN = U72300DL2007PTC166470

Company & Directors' Information:- A Y SERVICES PRIVATE LIMITED [Active] CIN = U74140DL2012PTC239759

Company & Directors' Information:- J N D SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140DL2014PTC264620

Company & Directors' Information:- V. S. SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999DL2012PTC233958

Company & Directors' Information:- S & V SERVICES PRIVATE LIMITED [Active] CIN = U74999DL2015PTC287145

Company & Directors' Information:- A R J SERVICES PRIVATE LIMITED [Active] CIN = U72200DL2015PTC286948

Company & Directors' Information:- M K R SERVICES PRIVATE LIMITED [Strike Off] CIN = U93000DL2012PTC242159

Company & Directors' Information:- J L MANPOWER SERVICES PRIVATE LIMITED [Strike Off] CIN = U74920DL2004PTC124661

Company & Directors' Information:- G W SERVICES PVT LTD [Strike Off] CIN = U79140DL2001PTC111194

Company & Directors' Information:- B 2 B SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140HR2013PTC049213

Company & Directors' Information:- R K SERVICES PRIVATE LIMITED [Active] CIN = U45200HR2007PTC041783

Company & Directors' Information:- S A MANPOWER SERVICES PRIVATE LIMITED [Active] CIN = U74999KA2011PTC060002

Company & Directors' Information:- R J MANPOWER PRIVATE LIMITED [Strike Off] CIN = U74910HR2011PTC041861

Company & Directors' Information:- A. R. T. SERVICES PRIVATE LIMITED [Active] CIN = U51900GJ2009PTC056248

Company & Directors' Information:- B 9 N SERVICES PRIVATE LIMITED [Active] CIN = U74900KL2012PTC032087

Company & Directors' Information:- V J SERVICES PRIVATE LIMITED [Strike Off] CIN = U29242GJ2013PTC074510

Company & Directors' Information:- N I SERVICES PRIVATE LIMITED [Strike Off] CIN = U64202KL2000PTC014355

Company & Directors' Information:- ACT SERVICES PRIVATE LIMITED [Active] CIN = U74910RJ2019PTC067152

Company & Directors' Information:- 7-A SERVICES PRIVATE LIMITED [Active] CIN = U74999DL2019PTC359011

Company & Directors' Information:- S I MANPOWER SERVICES PRIVATE LIMITED [Active] CIN = U74910MH2020PTC346822

Company & Directors' Information:- L K E SERVICES PRIVATE LIMITED [Active] CIN = U74999RJ2021PTC073635

Company & Directors' Information:- F I SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999DL2001PTC113001

Company & Directors' Information:- C R D SERVICES PVT LTD [Active] CIN = U72300AS1988PTC003097

Company & Directors' Information:- B I M SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140KA1974PTC002694

Company & Directors' Information:- T Q M SERVICES PVT. LTD. [Strike Off] CIN = U74140DL1999PTC101341

Company & Directors' Information:- B AND M SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140MH1977PTC019880

Company & Directors' Information:- M J B E-SERVICES PRIVATE LIMITED. [Strike Off] CIN = U72400DL2006PTC150832

    FAO. No. 197 of 2020 & CM. APPLs. Nos. 27497-99 of 2020

    Decided On, 04 November 2020

    At, High Court of Delhi

    By, THE HONOURABLE MS. JUSTICE PRATHIBA M. SINGH

    For the Appellant: Siju Thomas, Vivek Paul, Saurav Bhargavan, Advocates. For the Respondents: R1 & R4, Satyakam, ASC.



Judgment Text

(Oral)1. This hearing has been done by video conferencing.CM APPL. 27499/2020(for exemption)2. Allowed, subject to all just exceptions. Application is disposed of.CM APPL. 27498/2020(for condonation of delay)3. This is an application for condonation of delay in filing the appeal qua impugned order dated 4th August, 2020. The delay of 17 days is condoned. Application is disposed of.FAO 197/2020 & CM APPL. 27497/2020(for stay)4. The present appeal challenges two orders dated 4th August, 2020 bearing F.No.Misc/EE/01/ND/2020/740 and 24th August, 2020 bearing F.No.Misc/EE/01/ND/2020/824 and letter dated 29th September, 2020 bearing F.No.Misc/EE/02/ND/2020/1078 passed by the Commissioner under the Employees Compensation Act, 1923 (hereinafter, “Act”). Vide the impugned orders, the Commissioner has directed payment of a sum of Rs.12,93,900/- as compensation due to the death of Respondent No.3, i.e. the deceased workman, to his legal heirs/dependents.5. The submission of ld. counsel appearing for the Appellant is that the Appellant was merely a contractor at the site and the compensation amount has already been deposited by the principal employer. Despite this fact being in the knowledge of the Commissioner, the same appears to have not been considered by the Commissioner. Mr. Satyakam, ld. counsel appearing for Respondent No’s 1 and 4 submits that the ld. Commissioner, on a reading of the impugned orders, appears to have over-looked the said issue.6. Heard counsels for the parties. The contention of the Appellant is that since the principal employer is liable in case of any death to pay the compensation, the liability could not have been fastened on the contractor. A perusal of the definition of ‘employer’ under Section 2(e) of the Act as also Section 12, shows that the liability to pay compensation would be on the principal employer. In fact, this is also evident from the note of the Labour Welfare Inspector who notes that if the contractor fails to pay the compensation amount, the principal employer will deposit the same. The extract of the said note reads as under:“Principal employer may kindly be requested to direct the contractor to deposit the compensation amount on or before 23/07/2020, failing which the Principal Employer will deposit the same with penalty and penal interest.”It is not in dispute that the Principal employer has deposited the compensation amount. The Commissioner could not have directed the deposit of the amount twice over, once by the Principal employer and secondly by the contractor. Thus, the Commissioner is clearly in error.7. Further, under the provisions of the Act, it is the settled legal position that the primary responsibility of paying the compensation is upon the principal employer. The inter-se arrangements between the principal employer and the contractor would not affect the liability qua the deceased or his/her family. This is settled in several judicial pronouncements. In Shri Krishan v. Jasoda Devi & Ors. [FAO 135/2016, decided on 27th September, 2017] a ld. Single Judge of this Court has reiterated and summarised the various principles governing Section 12 of the Act as under:“Liability of the principal under Section 12 of the Employee's Compensation Act8. Section 12 of the Employee's Compensation Act imposes the liability of payment of compensation on the principal with right to recover the same from the contractor in respect of work being carried out by the contractor. Section 12 of the Employee's Compensation Act is reproduced hereunder: …43. Summary of Principles43. – 43.4 ………..43.5. The intention of the Legislature in enacting Section 12 provision appears to be that the injured employee or the dependent of a deceased employee who has been awarded compensation by the Commissioner, should not be put to any difficulty in realising such amount of compensation on account of any recalcitrance of the employer or on account of the vicissitudes of his (the employer's) financial position.43.6. Section 12 of the Act has, in effect, stretched the contours of the word "employer" wider as to include the person contracting with another person for carrying out the work of the former. In such cases, the provision enjoins that the principal shall stand substituted as the employer. This is achieved by the words "where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer". The principal may have a claim for indemnity from his contractor or delegatee but the victim or his dependents are not to be involved in such disputes.43.7. Section 12 will apply notwithstanding the agreement or contract entered into between the principal and contractor regarding their liability for payment of compensation under the Act. The agreement or contract between the principal and the contractor shall govern only their inter-se rights and liabilities, and cannot affect the right of the employee or the dependants of the employee, to get the compensation from the principal or from the contractor at their option.43.8. Section 12 shall apply even in cases of several tiers of employers or petty contractors. It is a matter of common knowledge that contractors in turn employ other petty contractors working under their direction and an employee may be actually employed by one of these aforesaid persons and in such a case, there may be no direct privity of contract between the principal and the employee in the last analysis. The employee has, for all practical purposes to deal with an immediate employer but when it comes to lodging a legal claim for compensation on account of an accident, he is concerned with the principal employer and not the immediate employer qua the employee.43.9. In case of the multiplicity of immediate and indirect or remote employers/contractors, Section 12 relieves an employee of the difficulty of ascertaining with precision as to who should be deemed to be the actual employer liable for compensation under the Act. The purport of Section 12 is to create a deemed employer-employee relationship between the principal employer and the employee of the immediate employer who is brought in by the principal employer as his contractor.43.10. Section 12 secures compensation to the employee who cannot fight out his battle for compensation by a speedy process. A person who employs others to advance his own interest is expected to provide a surer basis for payment of the injured employee than the intermediary, who may often turn out to be a man of straw, from whom compensation may not be available. This is the purpose for which the claimant is given the option under section 12(3) of the Act to claim the compensation either from the principal or from the contractor.43.11. The contractor may not be a man of means or he may be merely a man of straw or it may be that wittingly or unwittingly he may possibly be part of an arrangement conceived by the principal to avoid confrontation directly with the employee engaged in the execution of the work. In either case, the interests of the employee need to be protected and that is what the provision secures to the employee. The principal can seek indemnification from the contractor if he has been made answerable for the payment of compensation. The right of the principal to be indemnified has thus been incorporated under Section 12(2), who has entrusted the work to the contractor stipulating the right of indemnification under the Act.43.12. Section 12 of the Act gives protection to the employee in case of an accident and secures compensation from the persons who can pay, so that such employee will not be dependent upon a petty contractor(s) who may themselves not be able to pay compensation on account of their financial inability.43.13. Section 12 is an enabling provision for the benefit of the employee(s) and enacted with the clear objective that the employee(s) should not be hampered by technicalities or practical difficulties of deciphering the correct employers. A pragmatic method has thus been devised for fixing the liability of the principal employer and thereby affording speedy relief to the employee for payment of compensation on account of the accident, though the principal has been invested with the right of indemnifying himself from the contractor who may hav

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e employed the employee and may have been responsible for immediately taking work from him….”8. In view of the above settled legal position, this Court is of the opinion that the matter requires re-consideration by the Commissioner. Accordingly, the impugned orders are set aside in the light of the above provisions and the note of the Labour Commissioner. The Commissioner shall take a fresh look at the entire matter and after hearing the Appellant shall pass a speaking order in accordance with the law as set out above in Jasoda Devi (supra).9. The Commissioner shall ensure that since the compensation is lying deposited, all efforts are made to trace out the legal heirs of the workman so that the compensation is duly disbursed to them without further delay. The Commissioner shall dispose of the matter on or before 31st January, 2021.10. With these observations, the appeal and all pending applications are disposed of.
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