Bhilwara Spinners Limited vs Workmen's Compensation Commissioner and Others

Dinesh Maheshwari, J.—Having heard learned Counsel for the petitioner and having perused the material placed on record, this Court is unable to find any reason to consider any interference in the impugned order dated 30.05.2005 (Annex. 6) as passed by the Workmen''s Compensation Commissioner, Bhilwara (''the Commissioner''); and this Court is clearly of opinion that this writ petition, being totally bereft of substance, deserves to be dismissed with costs.

The claim for compensation has been made before the Commissioner by the dependents (wife and minor children) of late Pokhar Balai, while joining one Shanker Lal and another Pusa Lal Choudhary as the non-applicants Nos. 1 and 2 with the present petitioner as the non-applicant No.3. The claimants have averred in their claim application (Annex.1) that the deceased Pokhar Balai was employed as a tractor driver with the non-applicants Nos. 1 and 2 and was supplying water at the works of the non-applicant No.3; and have alleged that thiswise, the deceased was in employment of all the three non-applicants. It has been averred that during the course of such employment, the victim met with his untimely end for an accident that occurred within the premises of the non-applicant No.3 (the present petitioner) on 12.05.2002.

While stating the age of the victim at 40 years, and his monthly income at Rs. 4,000/-, the claimants have sought compensation in the sum of Rs. 3,78,340/- against all the nonapplicants.

The non-applicant No.3 (the present petitioner) has filed a reply (Annex.2) to the claim application, with the submissions, inter alia, that the victim was not in its employment nor died during the course of any such employment. According to the petitioner, it was found during investigation, that while water was being supplied from the tractor, the deceased sustained fatal injuries while attempting to reach the upper branches of a tree with a long iron rod that came in contact with 33 KV electricity line.

The petitioner also moved an application (Annex.3) on 06.04.2004 with the submissions that the deceased was not in its employment and hence, the claim application was not maintainable against it; and prayed that such an objection was required to be decided at the first. The application was replied on behalf of the claimants with the submissions (Annex.4) that the application was not maintainable and that the nonapplicant No.3 was liable as being the principal employer. On 22.04.2005, the learned Commissioner proceeded to frame the following issues (Annex.5) for determination of the questions involved in the matter:

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After framing of issues, yet another application (Annex.6) was moved on behalf of the petitioner with the submissions that its earlier application dated 06.04.2004 was pending and if the trial on other issues was taken up without deciding on such an aspect, the petitioner would unnecessarily be required to participate in the proceedings; and it was reiterated that the deceased was not in its employment.

The learned Commissioner has observed in the impugned order dated 30.05.2005 (Annex.7) that all the questions in controversy would be determined in the final judgment and has ordered that the matter be proceeded for evidence.

Seeking to assail the order dated 30.05.2005, it has strenuously been contended by the learned Counsel for the petitioner that the question of competence of the claim application against the petitioner ought to have been decided as a preliminary issue by the learned Commissioner; and, while relying on the decision of the Hon''ble Supreme Court in the case of The Management of Express Newspapers Ltd. Vs. Workers and Staff Employed under it and Others, learned Counsel contended that such a question being directly related to the jurisdiction of the Commissioner, is required to be decided at the initial stage of proceedings. The submissions remain untenable.

The averments as taken by the claimants in the claim application, when read as a whole, make out that according to them, the victim was in employment of all the three nonapplicants including the present petitioner. Looking to the substance of the allegations and the material available available on record, the learned Commissioner has framed the issues taking into comprehension all the questions involved in the matter including the question as to whether the nonapplicant No.3 (the present petitioner) is liable towards compensation or not ? The plea as taken by the present petitioner, of the victim being not in its employment, remains a plea in defence and is obviously subject to the trial and final adjudication by the learned Commissioner. Such a plea cannot be said to be a plea relating to the jurisdiction of the Commissioner to deal with the claim for compensation. Reference to the decision in Management of Express Newspaper (supra) remains entirely inapt wherein the question had been about existence of an industrial dispute, a sine qua non for the Industrial Tribunal to assume jurisdiction and to proceed with adjudication. In the claim for compensation under the Workmen''s Compensation Act as made by the claimants, if a particular non-applicant seeks to submit that he does not answer to the description of the employer and is not liable towards compensation, such a plea does not lead to any question on the initial jurisdiction of the Commissioner concerned.

The learned Commissioner has rightly chosen not to pronounce anything on the baseless applications as moved by the present petitioner; and has rightly posted the matter for evidence with the observations that all the questions in controversy would be decided at the time of final adjudication.

This writ petition remains totally bereft of substance and is, accordingly, dismissed with costs quantified at Rs. 3,300/-. It shall be permissible for the Commissioner concerned to proceed with the matter most expeditiously as it is noticed that the claim for compensation relates to an accident that occurred way back in the year 2002.