Oral Judgment:
1 The exercise of power by the Commissioner for Workmen's Compensation under section 10-A of the Employees' Compensation Act, 1923 is questioned by the Petitioner by this petition.
2 The Petitioner is a Company engaged in the business of construction. Sometime around the year 2012, Petitioner constructed premises of one Bhartiya Sanskriti Darshan Trust at Kesnand, district Pune. The Petitioner had engaged services of M/s Avinash Construction Company and M/s RMC Readymix (India). On 18 December 2012, an unfortunate incident took place at the construction site. The Centring on the 4th floor collapsed and thirteen persons died. One of them was Shri Prakash Apparao Shelke.
3 The Commissioner for Workmen's Compensation exercising powers under section 10-A of the Act issued a notice to the Petitioner. The notice called upon the Petitioner to give particulars of the incident and to make necessary deposit under Section 10-A(2) of the Act, within 30 days. The Petitioner appeared before the Commissioner and denied it's liability to pay compensation to Mr.Shelke. According to the Petitioner, Mr.Shelke was not it's employee. Avinash Constructions also took a stand that Mr.Shelke was not it's employee. The Commissioner observed that the incident and the death of Mr.Shelke were not disputed, and since the Petitioner and Avinash Construction were trying to shift burden on each other, directed the Petitioner to deposit the compensation in respect of Mr.Shelke, by order dated 4 May 2013. This order is challenged by the Petitioner in the petition.
4 Mr.Vaidya, the learned counsel for the Petitioner submitted that the jurisdiction under Section 10-A of the Act is limited. He submitted that if any dispute is raised as regards the liability, then the course of action is to ask of the dependants of the deceased to file an application, which is to be decided as per the regular procedure. Mr.Vaidya submitted that once the noticee denies it's liability then the noticee cannot be forced to deposit the compensation by exercising suo motu summary power under Section 10-A of the Act. The learned counsel placed reliance on the decision of the Division bench of the Patna High Court in the case of Guru Bachan Singh Vs. State of Bihar and Ors. â reported in 1970 ACJ 257. Mr.Kango, the learned AGP submitted that in the present case the incident is not denied and since the employer and contractor have tried to shift the responsibility on each other, the Commissioner was justified in exercising powers under Section 10-A of the Act.
5 Section 10-A reads as under:
âPower to require from employers statements regarding fatal accidents.-
Section 10-A - (1) Where a Commissioner receives information from any source that a workman has died as a result of an accident arising out of and in the course of his employment, he may send by registered post a notice to the workman' s employer requiring him to submit, within thirty days of the service of the notice, a statement, in the prescribed form, giving the circumstances attending the death of the workman, and indicating whether, in the opinion of the employer, he is or is not liable to deposit compensation on account of the death.
(2) If the employer is of opinion that he is liable to deposit compensation, he shall make the deposit within thirty days of the service of the notice.
1. Ss. 10A and 10B ins. by Act 15 of 1933, s. 8.
(3) If the employer is of opinion that he is not liable to deposit compensation, he shall in his statement indicate the grounds on which he disclaims liability.
(4) Where the employer has so disclaimed liability, the Commissioner, after such enquiry as he may think fit, may inform any of the dependants of the deceased workman, that it is open to the dependants to prefer a claim for compensation, and may give them such other further information as he may think fit.â
6 The notice issued under Rule 13 of the Act read with section 10A (2) calls upon the noticee to indicate whether it is admitting the liability to pay the compensation. The form of notice has been prescribed, which provides as under -
Form â E
In reply to your notice dated the â¦.......... 19 â¦...... which was received by me on the 19. it is submitted that â¦.......... (3), residing at ------------- a workman ------------ over 15 years of age employed in (1) ----- met with an under accident On the â¦..... 19 as a result of which he died on the ------------- 19. The monthly wages of the deceased amounted to Rs. â¦...........
2. The circumstances in which the deceased met his death were as follows :-
3. The deceased left the following dependants (2)
4. I admit liability to pay as compensation on account of the deceased's death the amount of Rs -------- which was will be deposited with You On the 19 before
5. I disclaim liability to pay compensation on account of the deceased's death on the following grounds :-
Employer
7 Thus the notice gives an intimation to the noticee to specify whether it admits the liability and to specify the compensation to be paid or whether it is denying the liability and to state the reasons.
8 It is no doubt true that the Act is a beneficial legislation and needs to be interpreted accordingly. However, if there is no power in the Commissioner under a particular section, it cannot be conferred by perverting the import of the provision. The Act provides for two modes for securing compensation. One is by making an application by the claimant or dependants, which the Section 19 of the Act states would be decided by the Commissioner and the Civil Court will have no jurisdiction. This application is to be decided by considering rival contentions. Order passed as the result of this adjudication is appealable under Section 30 of the Act. The other mode is Section 10-A of the Act which confers suo motu powers on the Commissioner to deal with noncontentious cases. When the Commissioner receives information from any source that an employee has died or injured as a result of an accident arising out of the employment, under the provisions of Section 10-A, the Commissioner sends a notice to the employer of the deceased to submit a statement in prescribed form within 30 days and indicate whether he is or not liable to deposit the compensation. If the noticee denies it's liability, by stating reasons, then the Commissioner is expected to inform the dependants of the deceased so that they can prefer a claim for compensation. This is the scheme of Section 10-A by plain reading of it.
9 The power under Section 10-A is a summary remedy. When there is no contest by the employer of a deceased employee, the admitted compensation can be speedily distributed. However, this course of action cannot be adopted to push through a contested claim. Pursuant to the notice under Section 10-A of the Act only the noticee is present before the Commissioner and the dependants are not before the Commissioner at that stage. The Commissioner does not have complete set of facts to adjudicate whether the stand taken by noticee is correct or otherwise. Therefore Section 10-A(4) provides that if such contest arises then dependants of the deceased are to be informed so that they can place their stand before the Commissioner. An adversral adjudication will then take place resulting into an order which can then be challenged by way of an appeal under Section 30 of the Act.
10 The Division bench of the Patna High Court in the case of Guru Bachan Singh (supra) observed as under -
â4. Learned counsel for the Petitioner has relied upon Section 10-A (4) of the Workmen's Compensation Act and has contended that the procedure which has been followed by the Commissioner under the Workmen's Compensation Act is illegal and that after the present Petitioner had disclaimed his liability, no order could be passed by the Commissioner determining finally the compensation to be given to the heirs of the deceased. Our attention has also been drawn to a notification of the State Government under Section 20 of the Workmen's Compensation Act, according to which, in contested cases, only the presiding officers of the Labour Courts are ex-officio Commissioners for workmen's compensation. The other officers mentioned in the notification were ex-officio Commissioners who could deal only with uncontested cases. Learned Counsel for opposite party No.3, father of the deceased, has argued that this Court should not interfere in its writ jurisdiction when the aggrieved party could have filed an appeal under Section 30 of the Workmen's Compensation Act.
5. Having heard the learned Counsel for the parties, I am of the opinion that when the law on the subject is quite clear, there is no bar to this Court in entertaining a writ application at this stage. Section 10A (4) lays down that where the employer has disclaimed the liability, the Commissioner, after such enquiry as he may think fit, may inform the dependants of the deceased workman, that it is open to the defendants to prefer a claim for compensation an may give them such other further information as he may think fit. In this case, the Commissioner had not done what he should have done under the provision of law. It is clear that Section 10-A (4) contemplates that when a contest has arisen before the Commissioner, the procedure to be followed is that the dependants will be given an opportunity to prefer a claim for compensation, upon which the matter will proceed according to various sections mentioned in this Act.
6. In the case of B.Rowell Roy v. Ka Thili Nonglyar AIR 1959 Ass 9, in an appeal arising under Section 30 of the Workmen's Compensation Act, the High Court pointed out the procedure to be followed in a contested case. It was held that when an employer, on notice, denies his liability, there was no power given to the Commissioner, under Section 10A to determine the amount of compensation and the liability of the employer. It was stated that in case there is an application preferred by the dependant claiming compensation, then the application has to be treated as one under Section 22 of the Act and thereafter the Compensation Officer acts as a civil Court in deciding the application. The procedure to be followed thereafter has also been indicated in this judgment. Therefore, in my opinion, the order passed in this case by the Commissioner under the Workmen's Compensation Act was illegal and without jurisdiction and it should be quashedâ.
I respectfully agree with this view.
11 The contention of Mr.Kango is that since in the present case the Petitioner has not denied the incident and only the fact that employer-employee relationship, the power Under Section 10-A can be invoked. This is not correct. Section 10-A (4) comes into play when the notice denies it's liability. The denial of liability could be on various grounds. Non existence of employer-employee relationship can be one of them. Language of Section 10-A(4) does not state that the denial of liability on the count of absence of employee-employer relationship is excluded. Thus when such a stand is taken, the Commissioner is under an obligation to inform the dependants of the deceased to make an application. The dependants then may be in position to produce material on record to show that the deceased was indeed in the employment of the notice.
12 In the impugned order the Commissioner has shown his indignation at the stand of the Petitioner and the Contractor in trying to shift the responsibility. He has felt himself obliged to pass some order to advance the beneficial object of the Act. Denial of liability is not a novel situation. In fact Section 10-A(4) contemplates very situation and provides for a solution. The Commissioner has overlooked this specific methodology.
13 The Commissioner had no jurisdiction to direct the Petitioner to deposit the compensation when Petitioner had disputed it's liability. The impugned order passed thus needs to be set aside and the Commissioner needs to be directed to follow the procedure laid down under Section 10- A (4) of the Act.
14 The petition thus succeeds. The impugned order dated 4 March 2013 passed by the Commissioner for Workmen's Compensation, Pune is set aside. The Commissioner for Workmen's Compensation Pune, will inform the dependants of the deceased that it is open to them to prefer a claim for compensation. He will issue such notice within period of four weeks from today. It is clarified that since the order is set aside on the ground of lack of jurisdiction, the application, if filed, will be heard on it's own merits.
Rule is made absolute in above terms. No costs.