Assistant General Manager, State Bank of India Vs. Asha Chouhan - Court Judgment

S.L. Jain, J.

Being aggrieved by the order dated April 12, 2002 passed by the Commissioner for Workmen's Compensation-cum-Labour Court, Jabalpur hereinafter referred to as the 'Commissioner'), in Case No. 53/98 (fatal), the appellant has filed this appeal challenging the correctness, propriety and validity of the order and findings.

2. Facts shorn of details and necessary for the disposal of this appeal are that the respondent had filed an application under the Workmen's Compensation Act (hereinafter referred to as the 'Act') claiming a lump sum compensation of Rs. 1,55,985.00 from the appellant-Bank, inter alia, alleging that her husband late Kishore Kumar Chouhan was in the employment of the appellant-Bank and expired on June 19, 1997 as a result of injuries sustained by him in the course of employment. It was put forth by the respondent that her husband was employed as an electrician in the appellant-Bank. It was also alleged that the monthly salary of her husband was Rs. 1,500.00.

3. The appellant filed a detailed reply submitting that the claim of the respondent is frivolous and based on incorrect facts. It was denied by the appellant-Bank that the husband of the respondent was in its employment. It was specifically submitted that in fact, the deceased was electrician by profession and was attending electrical faults and was undertaking electrical repairing work at the Bank on contract basis as and when required. It was also submitted that there is no post of electrician in the Bank, therefore, there was no question of employment of any person as an electrician.

4. It was also the case of the appellant-Bank that the contract of deceased late Kishore Kumar Chouhan was terminated on March 31, 1997 regarding which intimation was also sent to him. After the termination of this contract the wife of deceased (respondent) installed two generators on hire basis in pursuance of the agreement dated January 1, 1996. The generators were hired to prevent the whole working of the Bank being paralysed in case of power failure. As per the terms of hire the maintenance of generators was the responsibility of the owner. Deceased Kishore Kumar Chouhan was looking after the maintenance work of the generators on behalf of the owner who gave the same to the Bank on hire basis. According to the appellant-Bank the deceased was the employee of Smt. Asha Chouhan, the respondent and not of the Bank. It was submitted by the appellant-Bank that the husband of respondent did not fall within the definition of workman as defined under Section 2(1)(n) of the Act.

5. The learned Commissioner, by the impugned order held that the deceased was in the employment of the Bank and accordingly, awarded compensation to the tune of Rs. 1,29,987.00 to the respondent.

6. The appellant-Bank deposited the awarded amount of Rs. 1,29,987.00 along with an amount of Rs. 500.00 towards the costs with the Commissioner on May 10, 2002. The certificate as required under Section 30 of the Act has also been filed along with the appeal.

7. Shri R. Maindiratta, learned counsel for the appellant vehemently submitted that the Commissioner failed to correctly appreciate the oral and documentary evidence adduced by the appellant-Bank which clearly shows that the husband of the respondent was never in the employment of the Bank and was in fact working on contract basis.

8. Smt. Asha Chouhan (AW 1), the widow of deceased has stated that her husband Kishore Kumar Chouhan was working as electrician in the branch of appellant. As a result of injuries sustained by him in the course of employment he expired on June 19, 1997. When he was changing the cylinder of fire extinguisher an accident occurred because of explosion. She has also stated that her husband was employed by the Bank as electrician to maintain the regular supply of electricity in the Branch.

9. As against this, Shri J.K. Bhattacharya (NAW 1) has stated that the deceased was working as electrician on contract basis. He was not holding a regular post of electrician. The Bank used to pay the deceased according to the work performed by him. This contract was also cancelled. After the cancellation of the contract, two generator sets of the respondent who is the wife of deceased, were hired by the appellant-Bank. The deceased used to look after the maintenance of the generators on behalf of his wife and at the most the deceased was the employee of respondent.

10. The appellant could not submit any document to substantiate their plea that the Bank used to pay to the deceased according to the work performed by him. On the contrary Exhibit D-6 reveals that the deceased used to get Rs. 750/- per month in the form of wages. Exhibit D-8 also reveals that the Bank used to pay fixed amount of Rs. 750/- per month to the deceased for maintenance of electricity. Exhibit D-4-C reveals that the deceased was receiving Rs. 1250/- every month. He was performing this job for more than 11 years. J. K. Bhattacharya (NAW 1) has admitted that deceased Kishore Kumar Chouhan used to remain present in the Bank premises throughout the day for maintenance of the electricity. It is also admitted that the deceased used to look after the electrical maintenance at the residence of bank officers also.

11. From the evidence on record, it is clear that the deceased was employed in the trade or business of the Bank. The duty of the deceased-workman was to look after electrical maintenance. There was sufficient nexus between the trade or business of the bank and the duty for which Kishore Kumar Chouhan was engaged. Hence, the finding arrived at by the learned Commissioner that the deceased was a workman within the meaning of the Act cannot be reversed in this appeal.

12. If a workman is to be taken out of the scope of Section 2(1)(n) of the Act, two things are required to be proved (i) that employment was of casual nature; and (ii) he was employed otherwise than for the purpose of employer's trade or business. Such a case is not established by the appellant. Maintenance of electricity was a part of trade and business of the appellant-Bank, therefore, the contention sought to be raised on the basis of Section 2(1)(n) of the Act has got to be rejected. In this case, it is amply proved that the deceased-workman was employed for the purpose of maintenance of electricity. The contention that the deceased-workman was being paid according to the, work done by him has no factual foundation. The documents, reveal that he was being paid Rs. 1250/- per month for his services. The learned counsel for the appellant next contended that the generators were hired from the wife of the deceased and for the maintenance of the same the deceased was employed by his wife. The respondent had entered into an agreement with the appellant-Bank on January 1, 1996 for supplying two generators on hire. The contention cannot be accepted. There are various contradictions in the pleadings of the appellant, in one breath it says that generators were hired on January 1, 1996 after the termination of the contract with the deceased and on the other hand it is pleaded that the contract of the deceased was terminated on March 1, 1997. On its own showing the contract with the deceased continued even after hiring the generators. After hiring generators the need for maintenance of electricity might not have been extinguished because generators are used only during those hours when there is no supply of electricity by the electricity board. Moreover there is no evidence that the notice terminating the contract w.e.f. March 1, 1997 was served on the deceased.

13. The letter Exhibit D-5 dated November 8, 1996 reveals that even on that date the deceased was looking after the maintenance of electricity in the branch of the Bank and also at the residence of officers of the Bank.

14. A careful examination of paragraph 4 of the copy of the letter dated January 21, 1997, addressed to Deputy General Manager, reveals that the deceased was not only looking after the maintenance of the electricity but also looking after the generators which were hired from the wife of the deceased.

15. Accepting for the sake of argument that the deceased was working on behalf of his wife for the maintenance of generators and wife was the contractor and his agreement regarding maintenance of the electricity on payment of Rs. 1250/- per month was terminated, the bank was liable to pay compensation under Section 12(1) of the Act, for the death of workman engaged by the contractor. The scope and ambit of Section 12(1) of the Act has been considered by a Division Bench of Kerala High Court in Vijayraghavan v. Velu, 1973-I-LLJ-490, wherein subRAMANYAM POTI, J. held at p. 495:

'2. The scheme of Section 12 of the Workmen's Compensation Act 1923 is intended to secure to a workman the right to claim compensation not only against his immediate employer who, in the Act is referred to as a contractor, but also against the person who had employed such contractor to execute the work which is ordinarily part of the trade or business of such persons. The Act refers to him as the principal. There may be cases where the contractor may not be a man of means or it may be that wittingly or unwittingly he may possibly be part of an arrangement conceived by the principal to avoid confrontation directly with the workman engaged in the execution of the work, in either case the interests of the workman needs to be protected and that is what the provision secures to him. The principal can seek to be indemnified by the contractor if he has been made answerable for the payment of compensation. But to invoke the provisions of the Section it is necessary that the accident should have occurred on, in or about such premises as on which the principal has undertaken or usually undertakes to execute the work or premises which are otherwise under his control.'

This observation has been quoted with approval in Malankara Rubber & Product Co. Ltd. v. Hameed and Ors., 2000-II-LLJ-630 (Ker-DB). Vijayraghavan (supra) was a case where the principal entered into an agreement with a contractor. The contractor engaged a worker. While doing the work the worker met with an accident and died. The principal (Railway) was found liable for paying the compensation and the contractor was found liable to indemnify the principal.

16. We find no merit in the contention raised by the appellant that the Bank cannot be treated as a principal employer. The work undertaken was usual requirement incidental for the trade and business of the Bank. The maintenance of the electricity being connected with the trade or business of the employer and the accident occurred in the Bank premises under the control of the appellant where its business was being carried on, the appellant was the principal employer liable to compensate the death of the worker.

17. The learned Commissioner has exercised the jurisdiction properly. Her findings are based on proper appreciation of evidence adduced by the parties in the case. The finding of the Commissioner that the deceased died in the course of employment is one of fact involving no substantial question of law. The respondent had given a cogent and consistent version and the same was believed by the Commissioner. So far as the credibility of the evidence is concerned, it is mainly a matter for the Commissioner and not for the High Court sitting in appeal. Proviso to Sub-section (1) of Section 30 of the Act provides that 'no appeal shall lie against the order of Commissioner unless a substantial question of law is involved in the appeal', therefore, all that this Court may do is to see whether there was legal evidence before the Commissioner which would support the conclusion on facts arrived at by the Commissioner. The possibility that the High Court or any other Commissioner might have arrived at a different conclusion on the same evidence would not justify interference.

18. We do not find any perversity or gross mis-appreciation of evidence in the order of the Commissioner. Simply because the Commissioner has accepted one set of evidence and rejected the other, her order cannot be interfered with in appeal since it is not found to be unreasonable and does not give rise to a substantial question of law. This Court while sitting in appeal under Section 30 of the Act does not function as a regular Court of Appeal with liberty to re-appreciate the evidence. Since no substantial question of law is involved in the case, the appeal is dismissed in limine.