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Prakashbhai Heerabhai Ambaliya, Owner of Prakash Ceramic v/s Sanjaybhai Tapubhai Degama

    R/F.A. No. 2355 of 2020 with C.Appl. No. 1 of 2021 in R/F.A. No. 2355 of 2020 with C.Appl. No. 1 of 2022 in R/F.A. No. 2355 of 2020 with C.Appl. No. 3 of 2021 in R/F.A. No. 2355 of 2020
    Decided On, 02 March 2022
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE A.G. URAIZEE
    For the Appellant: Jitendra H. Singh & Anantanand J. Singh, Advocates. For the Respondent: Pankaj R. Desai, Advocate.


Judgment Text
1. This Appeal under Section 30 of the Workmen's Compensation Act, 1923 (“W.C. Act” for short) is preferred by the Employer to assail the order of the Commissioner for Workmen's Compensation and Judge (J.D.), Labour Court No.3, Rajkot (Morbi-Camp) in W.C. (Non-Fatal) Case No.7 of 2014, whereunder the Appellant herein is directed to pay a sum of Rs. 3,65,958 with 12% simple interest and penalty of Rs. 1,82,979 to the Respondent.

2. The facts giving rise to present Appeal are not many and moved in narrow compass.

2.1. As per the application, the Respondent was working as Press Operator in the Prakash Ceramic, owned by the Appellant. On 31.3.2014 at about 9.00 p.m. when he was working on the press machine, his left hand palm was crushed in the machine. As a result, he suffered serious injuries on four fingers. He was shifted to the hospital of Dr. Mitul Patel at Vakaner and thereafter he was shifted to Pandit Din Dayal Upadhyay (Government Hospital) on 31.3.2014 for the further treatment. He was treated as indoor patient till 3.4.2014. As a result of the injuries, the Respondent lost four fingers of his left hand. The Medical Expenses of around Rs. 30,000 to Rs. 40,000 was borne by the Appellant. The amount of Compensation was demanded by the Respondent however, the Appellant did not pay the same. The Respondent therefore, filed W.C. (Non-Fatal) Case No.7 of 2014 in the Labour Court, Rajkot to recover a sum of Rs. 4,23,000 as Compensation, penalty, interest, cost etc. The Commissioner has by the impugned Order, allowed the application. The Appellant is aggrieved by the impugned Order of the Commissioner. Hence, this Appeal under Section 30 of the W.C. Act.

3. I have heard Mr. Jitendra H. Singh learned Advocate for the Appellant and Mr. Pankaj Desai, learned Advocate for the Respondent.

4. Mr. Singh, learned Advocate for the Appellant submits that there was no relationship of Employer and Employee between the Appellant and the Respondent. He submits that on the date of accident, the Respondent had come to the factory of the Appellant to meet his friend, who was working with the Appellant. He further submits that the Respondent was allowed by his friend to go near the machine without knowledge of the Appellant. Hence, the Respondent himself was responsible for the accident. It is his further submission that the medical bills for the treatment of the Respondent was borne by the Appellant on humanitarian ground, which by no stretch of imagination can lead to conclusion that there was relationship of Employer and Employee between the Appellant and the Respondent. He further submits that it is primary duty of the Workman to give all relevant details of his Employer however, the Respondent has not appended any such details/documents with his application. He would further submit that Exh.43 & 44 attendance register do not reflect name of the Respondent as 'Workman' of the Appellant. It is his further submission that the friend of Respondent had allowed the Respondent to go near the machine without permission of the Appellant. Hence, in view of Section 3(1)(b)(II) of the W.C. Act, the Appellant is not liable to pay Compensation to the Respondent. He, further submits that the Respondent had not appended any documents along with his application as required under Rule 21 of the W.C. Rules therefore, also the application fled by the Respondent was required to be rejected. He, therefore submits that the Appeal requires to be admitted for consideration of substantial questions of law proposed in Paragraph No.14 of the Appeal Memo.

5. Mr. Singh, learned Advocate for the Appellant relied upon following decisions:

1. Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahommad Issak, 1969 (2) SCC 607.

2. Central Mine Planning and Design Institute Ltd. v. Ramu Pasi and anr., 2006 (1) LLN 527 (SC): 2005 (2) TN MAC (SC) 467 (SC): AIR 2006 SC 678.

3. Kamlabai wd/o Bindadin Parasram Bawaria v. Sohanlal S/o. Amriksingh Arora, 2005 (1) LLN 488 (Bom): 2004 (4) MhLJ 869.

4. Thomas v. Babu, 1995 (1) LLN 131 (Ker): 1995 (2) LLJ 141.

5. Rebati Gantayat v. Haguru Sethi and others, 1986 ACJ 248.

6. Per contra Mr. Desai, learned Advocate for the Respondent has supported the impugned Order of the Commissioner. He submits that the question of relationship of Employer and Employee is question of fact. He further submits that none of the proposed question of law are in fact substantial questions of law. He has relied upon various decisions of the Supreme Court and this Court. He further submit that no substantial questions of law is involved in the Appeal. Hence, he has submitted that the Appeal may not be entertained.

7. Mr. Desai, learned Advocate for the Respondent relied upon following decisions:

1. Golla Rajanna etc. etc. v. Divisional Manager and another, 2016 (4) LLN 545 (SC): 2017 (1) TN MAC 1 (SC): 2017 (1) GLH 150

2. C. Muniswamy v. T. Rajamoorthy, A.A.O. No. 390 of 1982.

3. National Insurance Co. Ltd. v. Jayashreeben Nandula Nerkar (Patil) and others, 2010 ACJ 1346.

4. Divisional Manager (Railway) v. Mitaben Arjun Bhatiya, 2006 (I) CLR 205.

8. I have given my thoughtful consideration to the submissions canvassed by the learned Advocates for the parties.

9. It emerges from the impugned Judgment and Order that the Commissioner has considered the evidence of Udag Jagdish Raval, Industrial Safety and Health Officer (Exh.17) as well as evidence of Prakash Hirabhai Ambaliya (Exh.30) on behalf of the Respondent, besides other documentary evidence to record the finding that there was relationship of Employer and Employee between the Appellant and the Respondent.

10. It emerges from the evidence of Udag Jagdish Raval, who was examined on behalf of the Respondent that he had recorded the statement of one Workman named Manji Chandubhai, who had stated before him that the Respondent was doing work of running press on 31.3.2014, when the accident had taken place. Not only that the Witness examined on behalf of the Appellant had admitted in his cross-examination that the Criminal Complaint was filed against the Appellant in respect of the accident in which the Respondent had suffered injury. He has admitted in his cross-examination that the Appellant had pleaded guilty and paid fine. The Commissioner has considered all these evidences led before him to record the conclusion that there was relationship of Employer and Employee between the Appellant and Respondent. The finding recorded by the Commissioner is the finding of fact. Such finding cannot be said to be finding involving question of law, much less substantial question of law.

11. Following substantial questions of law are proposed by the Appellant in Paragraph No.14 of the Appeal Memo.

(A) Whether the Claimant is exempted under the provision of Employee's Compensation Act, 1923 from proving by documentary evidence that he is the Employee of the Appellant ?

(B) Whether the act makes provision and confers powers on the court for assuming and presuming the facts in issue ?

(C) Whether the act provides overlooking and ignoring the documentary evidences produced by the Appellant to prove the facts in issue asserted by the Appellant in Written Statements ?

(D) Whether the illegal entry on the premises of factory without the knowledge of the Appellant and willful disobedience to the instructions of the Appellant by his Employee (i.e. the Claimant being the friend of Employee) can be said to be the liability of the Appellant to pay Compensation ?

(E) Whether the act make provision that any person can claim Compensation by making application without supporting documents of being Workmen ?

(F) Whether bare word of the Workmen is sufficient to prove about his being Workmen of the Appellant ?

(G) Whether in the factory where below 10 persons are working provisions of Factory Act will apply ?

(H) Whether the Criminal case regarding non-sending of Report of accident in Form-21 by the Appellant automatically provided the disputed facts that Claimant is the Employee of the Appellant ?

(I) Whether presumptions can take place the requirement of proving of disputed facts by documentary evidence ?

(J) Whether Rule 21, 23, 24, 25 of the Workmen Compensation Rules, 1924 is not required to be followed by the Ld. Workmen Compensation Commissioner ?

(K) Whether in absence for liability of Compensation penalty can be imposed ?

(L) Whether the Workmen Compensation Commissioner can entertain claim application in breach of Rules 21, 23, 24 & 25 of the Workmen Compensation Rules, 1924 ?

(M) Whether the Judgment and Order passed can be said to be legal when there is bar to entertain the application ?

12. A bare reading of the aforesaid questions makes it abundantly clear that they are general and such questions cannot be termed as substantial questions of law in light of facts of the case on hand.

13. Supreme Court and this Court has held in various decisions that the question of relationship of Employer and Employee is a question of fact and is not substantial question of law.

14. In view of the above, I am of the view that no substantial question is involved in the First Appeal warranting admission.

15. Hence, present First Appeal is dismissed at threshold with cost of Rs. 10,000, which the Appellant is directed to deposit with the Commissioner within 10 days from the date of receipt of present order. Upon amount of cost being deposited, the Commissioner is directed to disburse it in favour of the Respondent-Workman.

Order in Civil Applicat

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ion No.3 of 2021: Heard Mr. Jitendra H. Singh learned Advocate for the Appellant and Mr. Pankaj Desai, learned Advocate for the Respondent. In view of the Order passed in the First Appeal, present Civil Application does not survive and the same stands disposed of accordingly. Order in Civil Application No.1 of 2021: Heard Mr. Jitendra H. Singh learned Advocate for the Appellant and Mr. Pankaj Desai, learned Advocate for the Respondent. Present Civil Application has become infructuous as the Appellant has already deposited the awarded amount of Compensation with the Commissioner. The Civil Application stands disposed of accordingly. Order in Civil Application No.1 of 2022: Heard Mr. Jitendra H. Singh learned Advocate for the Appellant and Mr. Pankaj Desai, learned Advocate for the Respondent. The Commissioner is directed to disburse the deposited amount of awarded Compensation in favour of the Respondent, as the Appeal is dismissed. The application stands disposed of.
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