A. Rathinasamy and Others vs Thadco

R.S. Ramanathan, J.—W.C. No. 465 of 1997, on the file of the Commissioner of Workmen Compensation (Deputy Commissioner of

Labour, Madurai) was filed by the revision petitioners, claiming compensation for the death of R. Arul, who died in the course of employment

under One S. Soriyanarayanan, the second respondent in this revision and also from the first respondent, stating that the first respondent is the

principal employer. Before the Commissioner for Workmen Compensation, the first respondent herein remained ex-parte and that application was

contested by the second respondent and the Commissioner for workmen compensation passed an award directing the first respondent herein, to

deposit a sum of Rs. 2,14,570/-and permitted the first respondent herein to recover the same from the bills payable to the second respondent

herein as per Section 12(1) of Workmen Compensation Act. The Commissioner of Workmen Compensation passed the said award on the basis

that the first respondent herein is a principal employer, the second respondent herein is the contractor working under him, the order was passed on

20.03.2003.

Thereafter, I.A. No. 23 of 2008, was filed by the first respondent hereinto condone the delay of 1769 days in filing the application to set aside

the ex-parte order, dated 20.03.2003 in W.C. No. 465 of 1997, stating that the deceased/Arul was employed as an Electrical Contractor under,

R.P.P. Builders, with whom, the first respondent herein entered into an agreement and R.P.P. Builders, Erode, is the proper and necessary party

to pay the compensation and the second respondent herein is not their contractor and hence, they are not in a position to recover the amount from

the second respondent herein, by adjusting the bills payable to the second respondent, as ordered by the Commissioner for workmen

Compensation. It was further stated in the said application that the order passed in W.C. No. 465 of 1997 was served on the first respondent

herein on 30.04.2003, and due to the administrative delay they were not in a position to pay the amount and they had also deposited the entire

compensation amount before the Commissioner of Workmen Compensation on 14.03.2007 and therefore, the delay is to be condoned. The

Commissioner for workmen Compensation allowed the said application and condoned the delay of 1769 days on the basis of the judgment in

Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, , and in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and

Others, , holding that the justice should not be denied and an equal opportunity must be given to both the parties and the order has been passed on

merits and with those observations, condoned the delay in filing the application to set aside the ex-parte order, against such order, this revision is

filed by the revision petitioners, who are claimants in W.C. No. 465 of 1997.

Mr. Bharathan, the learned Counsel appearing for the revision petitioners submitted that no acceptable reason has been stated in the application

to condone the delay and admittedly, the order was served by them on 30.04.2003 and for more than four years no action was taken by the first

respondent and the reason that the post of Managing Director was kept vacant and hence, the approval could not be obtained in time, cannot be

accepted in the absence of details about the period during which, the post remained vacant. Further, he would submit that the amount was

deposited on 14.03.2007 and after one year, this application was filed and there is no explanation for the same. Therefore, the learned Counsel

submitted that the delay should not have been condoned and if the parties are directed to contest the application after on merits, the petitioner may

not be able to see the colour of coin in the near future and thepurpose of the enactment of Act will become futile and hence, the Commissioner for

Workmen Compensation erred in condoning the delay.

Mr. K. Balasubramanian, the learned Additional Government Pleader submitted that as a principal employer they are liable to pay the

compensation and according to them, the second respondent herein is not the contractor under them and hence they cannot recover the amount by

adjusting the bills payable to the second respondent and according to them, R.P.P. Builders was their contractor, under whom, the deceased

worked and they have to implead said R.P.P. Builders contractor and without impleading them, they cannot recover the amount from the second

respondent and for that purpose, they want the claim petition to be reopened for impleading the proper contractor, by setting aside the ex-parte

order.

According to me, the reasons stated by the learned Counsel for the respondent cannot be accepted and I am in agreement with the submissions

of the Revision Petitioner. As per Section 12(1) of the W.C. Act, Where compensation is claimed by the employee, the principal employer 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, incase, the principal during the course of their business entered into a contract with any other person for

the execution of that work by a contractor and the principal shall recover the amount from the contractor. Further, as per Section 12(1), where the

principal is liable to pay compensation, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could

have recovered compensation of any such indemnity shall, in default of agreement, be settled by the Commissioner. Therefore, a conjoint reading

of Section 12(1) & (2) of Workmen Compensation Act made it clear that the principalis liable to pay compensation and he could get himself

indemnified by the contractor or any other person from whom the workman could have recovered the compensation. In this case, admittedly the

first respondent is the principal employer and according to the first respondent, the contractor was R.P.P. Builders and R.P.P. Builders was not a

party before the Commissioner of Workmen Compensation in W.C. No. 465 of 1997. Further, in this case, the principal employer did not dispute

the amount of compensation and the only grievance for the principal employer is that he may be permitted to recover the amount fromthe

contractor. According to me, a reading of Section 12(2) made it clear that the principal employer is entitled to be indemnified by the contractor or

by any other person from whom the workman could have recovered compensation and all questions as to the right to and the amount of any such

indemnity shall be settled by the Commissioner. Therefore, it is open to the principal employer, the first respondent herein, to apply to the

Commissioner for Workmen Compensation stating the fact that R.P.P. Builders are the contractors working under them and the said R.P.P.

Builders may be directed to indemnify the principal employer, the first respondent herein or any other person and on presenting such application,

giving the proof of employment by R.P.P. Builders as a contractor, the Commissioner for Workmen Compensation can decide the right of the

principal employer to get indemnify from the contractor, issuing notice to R.P.P. Builders and fix the liability upon the principal employer and the

contractor. Further, u/s 12(2) of the Workmen Compensation Act, the principal employer is entitled to be indemnified by the contractor or any

other person from whom the workmen could have recovered the compensation and therefore, it is also open to the principal employer by giving

the name of the person from whom the principal employer is entitled to get indemnification and by producing such particulars, he could also invite

the attention of the Commissioner to pass orders for getting indemnified of the amount deposited by him before the commissioner.

Therefore, the order of the Commissioner Workmen compensation in condoning the delay is set aside and the revision is allowed and as stated

supra the first respondent is permitted to approach the Commissioner for Workmen Compensation to work out his remedy as per Section 12(2)

on the Workmen''s Compensation Act. No costs. Consequently, the connected Miscellaneous Petition is also closed.

The Commissioner of Workmen Compensation is also directed to disburse the amount of compensation, after conducting proper enquiry, in

accordance with law.