Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No.498/2011 4th February, 2014 % LADY HARDING MEDICAL COLLEGE & SMT. SUCHETA KRIPLANI HOSPITAL ......Appellant Through: Mr. R.V. Sinha, Mr. A.S. Singh, Advocates VERSUS SHRI RAKESH KUMAR ...... Respondent Through: Mr. Sanjiv Sharma, Advocate for respondent No.1 with respondent No.1 in person. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This first appeal is filed under Section 30 of the Employee’s Compensation Act, 1923, impugning the judgment of the Commissioner dated 18.4.2011 which has allowed the compensation claim filed by the respondent herein.
2. The facts of the case are that respondent was admittedly a temporary status employee of the appellant when on 5.4.2004 while working on shredder machine he got injured and four fingers of his left hand were cut down resulting in permanent partial disablement. The respondent accordingly filed the claim petition before the Commissioner.
3. Before the Commissioner, the main contention of the appellant was that the respondent was unauthorizedly working on the shredder machine although he was not authorized to do so, and therefore, on account of his own fault he got injured.
4. The Commissioner has dealt with this argument in terms of the following conclusions:
“Evidence by way of affidavit on behalf of Respondent has been filed by Sh. Prem Chand, Administrative Officer of the respondent stating the same as what has been representative of the claimant wherein he has stated that they do not have any post of sadder machine operator and the operation of the sadder machine is under the supervisor but the supervisor does not operate the sadder machine and the job of operating sadder machine is assigned by the supervisor attached to the labour cell and at the time of accident for which the application has been filed one Sh. Dinesh Kumar was working as supervisor of labour cell. Sh. Dinesh Kumar was summoned on request of the claimant and his statement was recorded on 3-6-08 wherein he has stated that he came to know about the accident on the same day at 11.30 AM but the claimant was not working under the supervision as he was working on the incinerator plant as his basic duty was to operate incinerator machine. Sh. Dinesh Kumar has also stated that the claimant was on duty on the date of accident in sadder machine which is about 40 to 50 meters away from the incinerator machine. The sadder machine was not under my control and as such I have no personal knowledge about the incident. The statement of Shri R.P. Koiree, Labour Supervisor has also been recorded wherein he has stated that the claimant Sh. Rakesh was present on the date of accident and the accident took in the hospital as he was deputed/sent for duty in Gas Plant to work on Cylinder Machine. Sh. Koiree further confirmed that the casual/safai karamchari on requirement are also required to work/operate the sadder machine and after the accident he reported the matter to the welfare department and principal. As stated by Shri Prem Chand, there is the post of sadder machine operator in the hospital whereas as per the statement of Sh. R.R. Koiree the helper/safai karamchari are deputed to work on Gas Plant/Sadder Machine etc. as the nature of work for S. Karamchari/Helper is not limited to the extent of their designation but most of the time the area of their work is extended by asking them to do certain work which are not assigned always by written order. Thus taking into consideration of the statement of Shri Prem Chand, Sh. Dinesh Kumar and Sh. R.P. Koiree it reveals that Shri Rakesh Kumar the claimant was working on the sadder machine at the time of accident on the instruction of management, Personnel. Therefore, it is held that claimant sustained injury out of and during the course of employment and is entitled for injury compensation.”
(underlining added) 5. A reading of the aforesaid conclusions arrived at by the Commissioner shows that the respondent was working on the shredder machine as per the direction of the Supervisor of the appellant and which has been confirmed by the witness Sh. R.P. Koiree, Labour Supervisor and the respondent’s presence at the shredder machine has also been confirmed by Sh. Dinesh Kumar, who was working as a Supervisor in the Labour Cell of the appellant, and who saw the respondent working on the shredder machine.
6. Therefore, I do not find any reason to disagree with the Commissioner by holding otherwise that the respondent was only a casual employee and was not asked to work at the shredder machine. I may state that I find this defence of the appellant as very unfair because it is well known that a casual employee cannot refuse to work at any place on being asked by the employer and hence when he was asked to work on the shredder machine where he got injured and four fingers of his left hand were cut down resulting in permanent partial disablement, then a Government body like the appellant ought not to have objected to the claim petition much less filed this appeal against the impugned judgment on the specious ground that workman was allegedly working on his own at the shredder machine. Learned counsel for the appellant sought to argue that as per Rule 37 of the Rules under the Act, the witness Sh. Dinesh Kumar could not have been summoned if the case was completed, however, this argument urged on behalf of the appellant is misconceived because the Supreme Court has now held that the strict provisions of the Evidence Act and the CPC do not apply to proceedings before the Commissioner under the Employee’s Compensation Act. Also, in my opinion, even if the provisions of CPC apply yet there are always ample powers in Courts in order to do substantial justice to call witness in case there is ambiguity in the evidence which is led. In fact this power is extended even to Appellate Court under Order 41(27) CPC.
7. In view of the above, the Commissioner has rightly held that the respondent was an employee covered under the Employee’s Compensation Act and that he suffered an accident on 5.4.2004 at the shredder machine on which he was asked to work. There is no substantial question of law which arises in this case to entertain the appeal under Section 30 of the Employee’s Compensation Act, 1923.
8. The appeal is, therefore, dismissed with costs of Rs. 15,000/- which shall be paid within a period of six weeks. Since the appeal is dismissed whatever amount is lying before the Commissioner, in terms of impugned judgment, can be released to the respondent along with accrued interest and which be done within four weeks of receipt of this judgment. FEBRUARY04 2014 godara FAO4982011