Panditrao Shamrao Bhongade and ors. Vs. Sunanda and Wd./O Nagesh Dongre and ors. - Court Judgment

Excerpt:
[a] workmen's compensation act, 1923 - section 12 - liability to pay compensation - labour engaged by contractor - death of labourer in accident while on construction work - principals i.e. owners of the building liable to pay compensation.;according to section 12 of the workmen's compensation act, in case of accident arising out of the work for which such contractor is employer, the principal is liable to pay the compensation to the workman employed in the execution of the work like a person directly employed by him and, therefore, the owners cannot escape from their liability being principal employer. ;while interpreting the provisions of workmen's compensation act, it must be borne in mind that it is a beneficial legislation and should not be interpreted in a manner so as not to deprive the claimant-workman of the benefit of the legislation specially by adding certain words to the terminology used in the statute. since the statute does not use the words in section 12 as 'in course of regular trade or business', it must be accepted that it is only 'in the course of trade or business' and if a person builts or constructs even one building for sale of residential flats or for selling or leasing out residential flats or shops, then it becomes his business. the sole purpose of entering into such business is to earn profit and it would be a travesty of justice to hold that it is not his trade or business since he was not regularly indulging into that activity. ;[b] workmen's compensation act, 1923 - section 30(1)(a) 3rd proviso - appeal against order awarding compensation - certificate of the commissioner for deposit of the amount of compensation not accompanying the memorandum of appeal - appeal not maintainable.;according to 3rd proviso no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. ;the appeal must therefore fail on this preliminary point and must be held to be not maintainable for want of having been accompanied by a certificate of the commissioner of workmen's compensation as is required by 3rd proviso to section 30 of the workmen's compensation act. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 3 asked nagesh and 3/4 other workers, who were doing the work at construction site of the said complex to lower down the electric motor pump in the well of the non-applicants no. 1 to 3. the water from that well was being utilized for the construction of the said complex and while doing work by lowering down the electric motor pump, deceased nagesh received electric shock and ultimately died. according to section 12 of the workmen's compensation act, in case of accident arising out of the work for which such contractor is employed, the principal is liable to pay the compensation to the workman employed in the execution of the work like a person directly employed by him and, therefore, the non-applicants no. this object of the legislature will be defeated, if we accept the interpretation put forward by mr. the contention of the learned counsel to the effect that failure of the appellant to deposit the amount of compensation and to produce alongwith the memorandum of appeal the certificate of such deposit, should be regarded as mere irregularity which does not render the appeal invalid was not accepted by the division bench and it was held that in the absence of the certificate the appeal was not maintainable. the legislature is presumed to know its business well and when the legislature has not used the words as 'in the course of regular trade or business' it is not possible to accept the arguments of the learned counsel for the appellants and to hold that since it was not a regular business of the appellants to construct shopping complex or buildings, they are not in the position of the principal employers. 3 who asked deceased nagesh to do the work of lowering down the electric motor pump in the well belonging to appellants. the water from that well was being utilised for the construction of the said complex. 4 ashok came to her house and informed her that as the water level in the well in that complex had gone down, the electric motor for lifting water was also to be taken down and for that her husband was asked to get into the well. when her deceased husband was lowering down the machine from the angle iron in the well, the angle iron got electric current and her husband received shock and was electrocuted. thereafter he was taken to the hospital from the well. 4 to inform wife of deceased that the water level in the well had gone down and the electric motor for lifting water was also to be taken down and, therefore, her husband was asked to get into the well. 14. therefore, on facts, even otherwise it was clearly proved that deceased nagesh was electrocuted while working in the course of his employment and while discharging the work which he was asked to do by the non-applicants nos. such an interpretation is not at all warranted and, therefore, it is a fit case in which the appeal must fail on this preliminary point and must be held to be not maintainable for want of having been accompanied by a certificate of the commissioner of workmen's compensation as is is required by 3rd proviso to section 30 of the workmen's compensation act.a.b. palkar, j.1. this appeal is preferred by original non-applicants no. 1 to 3 against whom the order is passed by the workmen's compensation commissioner calling upon them to pay rs. 87,388/- as compensation to the heirs or deceased nagesh. the facts which are not more or less in dispute and germane for the decision of the present appeal arc as below :the original non-applicants no. 1 to 3 (appellants herein) owned and possessed a plot on the southern bank of amba nala at amravati where they were making the construction of their building known as 'bhangade complex' (hereinafter referred to as shopping complex). they employed original non-applicant no. 4 as contractor for carrying out the construction work. deceased nagesh was employed by the contractor original non-applicant no. 4 for construction work as a labourer. on may 23, 1990 at about 3.30 p.m. the non-applicant no. 3 asked nagesh and 3/4 other workers, who were doing the work at construction site of the said complex to lower down the electric motor pump in the well of the non-applicants no. 1 to 3. the water from that well was being utilized for the construction of the said complex and while doing work by lowering down the electric motor pump, deceased nagesh received electric shock and ultimately died. the heirs of deceased nagesh, therefore, made claim for compensation giving the details of his income, etc., which we need not consider in view of the limited scope of the points required to be decided in appeal.2. after the appeal was filed, on behalf of the respondents, application being c.a. no. 1241/1994 was filed either for dismissal of the appeal for non-compliance with the provisions of section 30 of the workmen's compensation act or in the alternative for vacating the stay. when the appeal was admitted, interim stay had been granted to the order of commissioner and, therefore, request was made either for vacation of the stay or dismissal of the appeal. as per order dated september 28, 1994, the application was ordered to be considered at the time of final hearing.3. in the application, it is contended that the mandatory provisions of section 30, specifically the 3rd proviso to section 30 regarding certificate of the commissioner to be filed alongwith appeal that the amount has been deposited, are not complied with and the appeal is, therefore, liable to be dismissed. in reply to this application, it was stated on behalf of appellants that the appellants are not employers of deceased nagesh. as they wanted to construct the complex for themselves, an architect incharge was appointed. one ashok somaji bhalerao (original non-applicant no. 4) was a building contractor and was given the labour contract in the matter of construction of the complex and nagesh was his employee. there was, therefore, no question of the persons placed in the position of the appellants to be liable for compensation inasmuch as they were not the employers, who had employed deceased nagesh and, therefore, they were disputing the liability. they were not covered by section 30 of the workmen's compensation act and as such the provisions of section 30(1) are not attracted.4. now, in view of this point that is required to be decided is whether compliance with provisions of section 30(1)(a) of workmen's compensation act was absolutely necessary and in the absence of compliance with the said provisions, the appeal itself was liable to be dismissed.5. in the detailed order passed by the commissioner, he has referred to the aspect of liability in para 12 of his order. the learned commissioner has stated in para 12 that it is an admitted position that non-applicant no. 4 was employed by non-applicants no. 1 to 3 as contractor and it was he, who, employed deceased nagesh. while working as contractor under the non-applicants no. 1 to 3, he procured the services of nagesh and the services of nagesh were used for the construction of the complex of the non-applicants 1 to 3 and as such they become principal employers of deceased nagesh. according to section 12 of the workmen's compensation act, in case of accident arising out of the work for which such contractor is employed, the principal is liable to pay the compensation to the workman employed in the execution of the work like a person directly employed by him and, therefore, the non-applicants no. 1 to 3 cannot escape from their liability being principal employer.6. according to 3rd proviso no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the commissioner to the effect that the appellant has deposited with him the amount i payable under the order appealed against.7. the contention of the appellants is that they are not the employers. the employer of deceased nagesh was original non- applicant no. 4 against whom no order has been passed by the commissioner and who has in fact been excluded from the liability. they are not the principal employers as is stated by the commissioner in his order. the learned counsel for the appellants referred to section 12 of the aforesaid act. section 12(1) is as below:'where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of this trade or business contract with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed. sub-section (2) of section 12 is in respect of indemnification by the contractor, with which we are not concerned. 8. the learned counsel for the appellants emphasised on the terminology in the course of or for the purpose of his trade or business contracts with any other person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay any workman employed in the execution of the work .....'. what is contended is that the appellants were constructing a shopping complex on their own land. it is not trade or business of the appellants to construct buildings and, therefore, they cannot be said to be principal employers.9. in this contention, the learned counsel for the respondent - shri gilda drew my attention to the decision of the mysore high court in the case of m.r. mishrikoti v. muktumsab hasansab asoti, 1973 l.i.c. 997 wherein it is held in para 6 that:'in the aforesaid provision the term 'employer' is used in contradistinction to the injured workman or the dependent of a deceased workman who had made an application for compensation and who can also appeal from an order of the commissioner if he feels aggrieved by such order. the intention of the legislature in enacting that proviso appears to be that the injured workman or the dependent of a deceased workman 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 after he prefers an appeal. this object of the legislature will be defeated, if we accept the interpretation put forward by mr. joshi and hold that the proviso is applicable only to an appellant who admits that he was such employer and not to an appellant who disputes the finding by the commissioner that he was such employer. hence, we are unable to accept the contention of mr. joshi that the appellant could file the appeal without depositing the amount of compensation as he was denying his having been the employer in relation to the deceased workman.10. the learned judges of the division bench of the mysore high court rightly referred to the intention of the legislature in enacting this provision. the contention of the learned counsel to the effect that failure of the appellant to deposit the amount of compensation and to produce alongwith the memorandum of appeal the certificate of such deposit, should be regarded as mere irregularity which does not render the appeal invalid was not accepted by the division bench and it was held that in the absence of the certificate the appeal was not maintainable.11. this court has also in the case of sitaram s/o. narayan vyawahare v. the chief executive officer, zilla parishad, nanded : 1985(1)bomcr519 approved the view taken by the division bench in the aforesaid case that the requirements of depositing the amount of compensation and producing a certificate for having made such deposit which are mandatory are applicable even to an appellant who disputes his having been the employer of the injured or deceased workman.12. however, what is contended by the learned counsel for the appellants mr. chandrukar is that the appellants were constructing the shopping complex on their own land and it was not their regular trade or business to do construction work by purchasing different plots and they were not in any way builders by profession. to accept the argument would tantamount to not only negativing the intention of the legislature behind the provision but to adding something to the provisions of section 12 which states that it must be in the course of trade or business of the person referred to as the principal who contracts with any other person. a case] wherein a person is building his own house on his land or on land possessed by him has engaged an contractor may not be covered but where a person is constructing a building either for constructing and disposing of and selling residential flats or for constructing a market complex for selling the shops or leasing them out then it would be difficult to comprehend that it was not in the course of his trade or business. in other words, it is necessary to find that it is his regular business to purchase plots and construct buildings thereon. this would mean adding the word 'regular' to the provision of section 12 which is against all the principles of interpretation. the legislature is presumed to know its business well and when the legislature has not used the words as 'in the course of regular trade or business' it is not possible to accept the arguments of the learned counsel for the appellants and to hold that since it was not a regular business of the appellants to construct shopping complex or buildings, they are not in the position of the principal employers.13. it is admitted fact that the appellants had employed non- applicant no. 4, who is a building contractor to construct the shopping complex. the non-applicant no. 4 had employed deceased nagesh for labour work ana it is also contended in the application that it was the original applicant no. 3 who asked deceased nagesh to do the work of lowering down the electric motor pump in the well belonging to appellants. the water from that well was being utilised for the construction of the said complex. the evidence of wife of deceased nagesh that at about 4.30 p.m. non-applicant no. 3 prashant and non-applicant no. 4 ashok came to her house and informed her that as the water level in the well in that complex had gone down, the electric motor for lifting water was also to be taken down and for that her husband was asked to get into the well. when her deceased husband was lowering down the machine from the angle iron in the well, the angle iron got electric current and her husband received shock and was electrocuted. thereafter he was taken to the hospital from the well. the appellant did not lead any evidence to counter this and, therefore, on fact, also, it was proved that not only the appellant had engaged non-applicant no. 4 as contractor for construction of the complex, but the particular work, which deceased nagesh was asked to do on that day, was at the instance of non-applicant no. 3 who had gone with non-applicant no. 4 to inform wife of deceased that the water level in the well had gone down and the electric motor for lifting water was also to be taken down and, therefore, her husband was asked to get into the well.14. therefore, on facts, even otherwise it was clearly proved that deceased nagesh was electrocuted while working in the course of his employment and while discharging the work which he was asked to do by the non-applicants nos. 3 and 4 and the non-applicants no. 1 to 3 i.e. the present appellants had engaged non-applicant no. 4 as contractor with whom deceased nagesh was employed. while interpreting the provisions of workmen's compensation act, it must be borne in mind that it is a beneficial legislation and should not be interpreted in a manner so as not to deprive the claimant-workman of the benefit of the legislation specially by adding certain words to the terminology used in the statute. since the statute does not use the words in section 12 as 'in course of regular trade or business,' it must be accepted that it is only 'in course of trade or business' and if a person builds or constructs even one building for sale of residential flats or for selling or leasing out residential flats or shops, then it becomes his business. the sole purpose of entering into such business is to earn profit and it would be travesty of justice to hold that it is not his trade or business since he was not regularly indulging into that activity. in this connection, the learned counsel for the respondents relied on a decision of this court in the case of sarjerao unkar jadhav v. gurindar singh and anr., : (1992)illj156bom wherein the provisions of section 12 were required to be interpreted. in that case before this court, the electricity board had given a contract tor painting electric poles and the workman employed by the contractor was injured while painting the poles. the question was, whether painting of electric poles was ordinarily a part of trade or business of : principal i.e. electricity board and giving a finding in the affirmative the learned single judge held in : (1992)illj156bom :'9. the dispute in this case is regarding the second condition only, there being no dispute that the supply of electricity is the trade or business of respondent no. 2 and the contractor was engaged for the purpose of that trade or business. therefore, what is required to be considered is whether painting electric poles is also a work which is ordinarily a part of the trade or business of respondent no. 2 and this requires to be examined in the context of the three decisions relied upon by mr. chandrachud. no doubt, the legislature has in its wisdom used the expression 'trade or business' in sub-section (1) of section 12 at two places which could not be without any purpose. in fact, the purpose has been brought out very succinctly in the three decisions relied upon by mr. chandrachud. however, the safer test would be that if it is ordinarily a part of business of the principal to execute certain work, then ordinarily he will do that work by his own servants and he cannot escape the liability for accident that takes place merely because he has engaged a contractor. now, in the present case, the trade or business of respondent no. 2 is to supply electricity. one cannot supply electricity without having electric poles. electric poles are not one or two in number. they are hundreds and thousands having regard to the area of operation of respondent no. 2. in bombay climate, the poles are likely to get rusted unless painted frequently. it will thus be an ordinary part of respondent no. 2's business to paint the poles if it is interested in supplying electricity continuously and properly. it is for this reason that i am inclined to hold that the contractor was engaged not only for the purpose of respondent no. 2's trade or business, but the activity in which the workman was engaged was ordinarily a part of its trade or business. accordingly, i further hold respondent no. 2 responsible and liable for compensation under section 12(1) of the workmen's compensation act.'15. i am, therefore, of the considered opinion that the words 'trade of business' were used by the legislature in section 12 not without any purpose as stated in the aforesaid judgment. the purpose is to fasten the liability with regard to compensation on the person who engages the contractor. it is not, therefore, possible to accept the argument of the learned counsel for the appellants that the appellants were not principal employers inasmuch as it was not their regular business to construct shopping complex. such an interpretation is not at all warranted and, therefore, it is a fit case in which the appeal must fail on this preliminary point and must be held to be not maintainable for want of having been accompanied by a certificate of the commissioner of workmen's compensation as is is required by 3rd proviso to section 30 of the workmen's compensation act.16. it is for this reason that the argument of the learned counsel for the appellants that the liability has been fastened only against the original non-applicants no. 1 to 3 and not against non-applicant no. 4 i.e. the contractor need not be gone into. the argument to that effect could have been considered had the appeal been competent and if this court was in a position to entertain the appeal. since the appeal itself is not competent having been presented without being accompanied by a certificate as required by 3rd proviso to section 30, the same is liable to be dismissed.17. appeal, therefore, fails and is dismissed with no order as to costs.