Full Judgment
V. Jagannathan, J.
1. The Divisional Manager, Southern Railway, Mysore, the appellant herein, has questioned the legality of the order passed by the Commissioner for Workmen's Compensation, Mangalore, fixing the liability on the appellant to pay the compensation awarded to R-1 to R-4.
2. The facts in brief are to the effect that R-1 to R-4 herein filed a claim petition before the Commissioner for Workmen's Compensation, Mangalore, praying for compensation following the death of one Babujan, who, according to the claimants, was working in the canteen run by R-5 in the premises of Kabaka-Puttur Railway Station. It was the case of the claimants that Babujan died following the stove explosion in the canteen on 20.4. 1990 and, therefore, contending that the deceased was working in the railway station canteen for over five years prior to his death, the claim petition was preferred. The Commissioner for Workmen's Compensation, after taking into consideration the evidence let in by the parties, came to the conclusion that the deceased was an employee of the canteen run by R-5 Ashok and the accident occurred while the deceased was in the canteen and, therefore, the Commissioner directed the appellant herein to pay the compensation of Rs. 59,793 with 6% interest and further directed that the appellant can recover the said amount from R-5, canteen owner. Aggrieved by the aforesaid order of the Commissioner, the Railways is in appeal.
3. Heard the learned Counsel for the parties.
4. The learned Counsel for the appellant, at the outset, submitted that deceased Babujan was not an employee of R-5 and secondly, even if it is taken for argument sake that deceased Babujan was employed in the canteen run by R-5, yet, the appellant will not be liable because, the said canteen was not a statutory canteen run by the Railways. Therefore, no liability arises on the part of the appellant to pay the compensation to the claimants. It was further contended that the work carried on by the canteen owner is not the work that is ordinarily carried on by the appellant-Railways and, as such, the question of the appellant paying the compensation as if the appellant is the principal employer also will not arise. This is because, the canteen in question was not the one which was approved by the Railway Board and secondly, it does not even fit in within the category of non-statutory recognized canteens. Therefore, the appellant should not have been made liable by the Commissioner to pay the compensation.
5. On the other hand, the learned Counsel for the respondents-claimants submitted that the deceased was an employee of R-5, canteen owner, and the Railways, being the principal employer is, therefore, liable to pay the compensation to the claimants. In this connection, it was submitted that it is not in dispute that the appellant herein had granted licence to R-5 to run the canteen and, therefore, the said act is an indication of the canteen being recognized by the appellant and, therefore, by virtue of the provision of law as per Section 12 of the W.C. Act, the appellant will be principally liable to pay the compensation to the claimants and the appellant can always recover the said amount from the contractor or the licensee. In this connection, the learned Counsel placed reliance on a ruling of the Apex Court, reported in 2003 (7) S.C.C. 488.
6. In the light of the contentions put forward and after having carefully gone through the order of the Commissioner and also after considering the entire evidence on record, the question for consideration is whether the Commissioner was justified in making the appellant liable to pay the compensation to the claimants.
7. It is the case of the claimants that deceased Babujan was an employee working in the canteen run by R-5. Oral evidence has been placed in this regard by the claimants. On behalf of the claimants, Exs.A-1 to A-9 were produced during the evidence. Out of these documents, Ex.A-7 is a certificate issued by R-5, canteen owner, and the said document mentions that deceased Babujan was working in the canteen run by the above said R-5 Ashok and that on 20.4.1990, deceased Babujan died on account of stove burst and the deceased was paid salary of Rs. 25/- per day.
8. However, the learned Counsel for R-5, canteen owner, has denied the signature on Ex.A-7 as that of the canteen owner. Referring to the signature found at the bottom of the deposition of R-5, it is submitted that the signature in Ex.A-7 and the signature in the evidence of R-5 vary greatly and, therefore, Ex.A-7 is a concocted one. Furthermore, it is in the evidence of R-5 that he can only speak Kannada and cannot read or write Kannada. Therefore, the deceased was not an employee of R-5.
9. In the light of the above contentions put forward, I have examined the record carefully and the signature of R-5 Ashok found in the deposition is altogether different from the signature that is found in Ex.A-7. The difference is so wide that even to the naked eye, it is easily possible to make out that the signature found in Ex.A-7 is not that of the person who has signed in the deposition as R.W. 1 Ashok. If this document is taken out of consideration, there is only the oral evidence of the claimants to say that the deceased was an employee under R-5.
10. But, however, R.W. 1 - P.K. Ashok, canteen owner, has categorically stated in his evidence that the deceased was not his employee at all at any point of time. Therefore, in the face of such evidence of R.W. 1, it is rather difficult to draw the inference that the deceased was an employee of R-5, canteen owner.
11. Even assuming for the argument sake that the deceased was an employee under the canteen owner, still, the canteen does not come within the category of statutory canteen and, in this regard, the decision of the Apex Court in the case of M.M.R. Khan v. Union of India A.I.R. 1990 S.C. 937, was brought to my attention by the learned Counsel for the appellant. In this decision, the Supreme Court has held that only employees of statutory and non-statutory recognised railway canteens are entitled to be treated as railway employees, but not employees of non-statutory and non-recognized canteens. The various conditions required to bring a canteen within a statutory canteen are to be found at paragraph-4 of the said judgment and likewise, paragraph-24 deals with non-statutory recognized canteens.
12. Having regard to the above provisions obtaining in the Railway Establishment Manual, in the instant case, none of those conditions are fulfilled and the evidence of R.W. 2 Suresh Kumar of the Southern Railway, Mysore, needs to be looked into. The said witness has specifically stated that the railways have no control over the functioning of the canteens. He has also stated in the course of his evidence that the railways have not prescribed any safety standards. It is also his evidence that it is not obligatory on the part of the railways to run the canteens and in many railway stations, there are no canteens. In the instant case, no document is produced to show that the approval of the Railway Board was obtained in respect of the canteen run by R.W. 1 Ashok.
13. So far as the licence issued to the canteen owner is concerned, the learned Counsel for the respondents-claimants submitted that the issue of licence is an indication of the railways having control over the canteen and, in this connection, he placed reliance on a decision reported in 1980 A.C.J. 48. I have carefully perused the said decision and there, it was the case of a porter being issued licence by the railway authorities and that was a case where the railway administration had the power of supervision over the work of the licensed porters and the work of such porters was also regulated by the railway administration and the said porters were to receive payment for their work from the railway administration. Therefore, in the context of such evidence on record, the court held that the porter also comes within the category of railway workmen.
14. In the instant case, as already stated by me, there are no material placed to indicate that the railways had any control over the canteen run by R.W. 1 Ashok excepting for the fact that licence was obtained by R.W. 1 to run the canteen. As such, the ruling has no application to the case on hand and the canteen in question cannot be considered as one failing under statutory canteens or for that matter, under non-statutory but recognized canteens.
15. The learned Counsel for the respondents contended that as the deceased was an employee under the canteen owner Ashok, the railways will still be liable to pay the compensation because, the appellant will be the principal employer as far as the deceased was concerned and, in this regard, he referred to the provisions of the W.C. Act and in particular, to Section 12 of the Act. It was also contended that the work of running the canteen is part of trade or business carried on by the railways and, therefore, even on this score, the appellant-railways cannot escape its liability to pay the compensation to the claimants of deceased Babujan. In order to drive home this point, the learned Counsel also referred to a decision of a Division Bench of the Kerala High Court, reported in 1996 A.C.J. 73, to contend that the expression trade or business' will have to be read in a wider context keeping in view the requirement of having a canteen in the railway station.
16. I am unable to agree with the learned Counsel for the respondents in respect of the above submission made. No doubt, Section 12 of the W.C. Act mentions that the principal shall be liable to pay any workman employed in execution of the work compensation which he would have been liable to pay if that workman had been immediately employed by him. The said section also provides that where the work that is executed by or under the contractor is the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be so liable.
17. Merely because the said section mentions that the work executed by a contractor it forms ordinarily part of any work which is part of the trade or business of the principal employer, that does not give room to take the view that the work of running the canteen is part of trade or business of the railways. In fact, the principal work of the railways is to run the trains from one place to another and, therefore, it is not possible to widen the words 'trade or business' so as to cover the case of canteen that is run in the railway premises. The expression trade or business' will have to be read in the context of the principal function of the principal employer and cannot be read in isolation so as to say that trade or business' also includes the running of the canteen by the railways. Hence, the ruling referred to by the learned Counsel for the respondents has no application to the case on hand.
18. By application of the principle of ejusdem generis, the words 'trade or business' will have to be given the meaning in accordance with the main function or the business of the principal employer. In other words, as the main function of the principal employer is one pertaining to running the trains from one place to another place, and it is not possible to bring in the working of the canteen even within the expression ordinarily part of the trade or business of the principal. Therefore, the question of Section 12 of the W.C. Act coming into operation will not arise. In arriving at this conclusion, I have also followed the law laid down by this Court in the case of Bharath Earth Movers Ltd. v. Bhagyamma (1975(1) Kar. L.J. 17). In the above said case, it has been held by a Division Bench of this Court thus:
For the application of Section 12(1) of the Act, it is necessary that the work, the execution of which is entrusted to the actor by a person has to be in the whole or in any part, ordinarily a part of the trade or business of such person. It is only then that such person will become the principal within the meaning of the section and liable to pay compensation.
Thus where Bharath Earth Movers Ltd. wanted to get a building constructed and entered into a contract with Respondent 2 for that purpose and while the building was in the course of construction, the deceased, an employee of Respondent 2 touched a live electric wire and died the next day.
Held that construction of building being not ordinarily a part of the trade or business of Bharat Earth Movers Ltd. whose business was to manufacture earth moving machinery, it could not be made liable to pay compensation as principal by applying Section 12(1) of the Act.
19. In the result, the appeal is allowed and the impugned order of the Commissioner for Workmen's Compensation, putting the liability on the appellant to pay the compensation to the claimants, is set aside.