Kismat Singh vs Piariya Devi & Ors

J.R.MIDHA, J

1.The greatest challenge before the judiciary today is frivolous litigation. False claims are a huge strain on the judicial system. In Subrata Roy Sahara

v. Union of India,(2014) 8 SCC 470, the Supreme Court observedthat the Indian judicial system is grossly afflicted with frivolous litigation and a

mechanism needs to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. Relevant portion of the

said judgment is reproduced hereunder:

The Indian judicial system is grossly afflicted, withfrivolous litigation. Ways and means need to be evolved,to deter litigants from their compulsive

obsession,towards senseless and ill-considered claims.

(Emphasis supplied)

The appellant has challenged the order dated 8th April, 2011 whereby the Commissioner, Employeeâ€s Compensation awarded a compensation of

Rs.3,27,705/- and funeral charges of Rs.2,500/- along with interest @ 12% per annum w.e.f. 30th October, 2004 to the respondents.

Respondent No.1 is the mother and respondent No.2 is the son of late Ajay @ Mahavir Mehto (hereinafter referred to as “Ajayâ€) and they

filed an application for compensation before the Commissioner, Employeeâ€s Compensation against the appellant on the averments that Ajay was

working in the appellantâ€s factory at Village Ranhola, Nangloi, Najafgarh Road, Delhi and was drawing a salary of Rs.3,000/- per month; the

appellant had a number of factories and Ajay used to carry fatta/balli from one factory to another; on 17th September, 2004, Ajay demanded his

unpaid salary of Rs.96,000/- whereupon the appellant asked him to finish the work and come later to receive the amount; when Ajay came back to

receive the amount, the appellant, in connivance with his muscle men, namely, Mahinder, Radhey Shyam and Dinesh assaulted him, which resulted in

serious injuries to Ajay who was taken to the hospital; he died due to the injuries on 30th September, 2004; Ajay was married to Promila Devi who left

her matrimonial home after the death of Ajay, leaving behind her minor son, Master Manish (respondent No.2) with his grandmother (respondent

No.1); an FIR No.868/2004 was registered by the police under Sections 341/323/34 I.P.C. at P.S. Nangloi; respondent No.1 issued the notice dated

24th May, 2006 to the appellant; the death of Ajay was a result of the accident dated 17th September, 2004 which arose out of and during the course

of his employment with the appellant.

Vide judgment dated 17th September, 2010, the Sessions Court convicted the three accused persons namely Mahender, Radhey Shyam and

Dineshunder Sections 341/304 (Part-II)/34 IPC. The Sessions Court held that Ajay died due to the injuries caused by the accused persons on 17th

September, 2004 in the factory of the appellant. Relevant portion of the said judgment is reproduced hereunder:

The charge-sheet u/s 173 Cr.P.C. has been filed against the accused persons namely Mahender S/o Sh. Shri Ram, Dinesh S/o Sh. Chatak &

Radhey Shyam S/o Sh. Bhagwan Dass for committing offences as punishable u/s 341/304/34 IPC on the allegations of wrongfully restraining and

causing death of Ajay.

Succinctly stating the case of the prosecution is that on17/09/04 at about 9.00 a.m. on the instructions of Suresh(thekedar), Ajay (since deceased)

was shifting the bamboos &tripal (katta) from one factory to other, however he objected asthe said balli‘s were quite heavy whereupon a scuffle

aroseduring which all the accused persons in furtherance of theircommon intention had obstructed and wrongfully restrainedhim, as well as inflicted

several blows in his chest by theirelbows and though he was treated at the SGM Hospital andTrauma Centre as well, yet the said injuries roved fatal

and hedied on 30/09/04.

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Naresh Kumar (PW6) has testified that he was working in the same factory where Ajay (since deceased) was also working and on 17/09/04 at

about 9.00 a.m., he saw that Ajay was shifting bamboos and tripal from one factory to other as per instructions of the thekedar Suresh. He has further

deposed that Ajay objected as the said balli‘s were quite heavy whereupon a scuffle arose and all the accused persons grappled with him, thrashed

him on the ground and also inflicted various injuries on his person including his chest with the elbows of their hands and shortly thereafter, Mohan Lal

(PW-1 brother of the deceased) reached at the spot who along with the owner of the factory took him to a doctor and later on, Ajay succumbed to

the said injuries in the hospital.

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23………………………During their cross-examination on behalf of accused persons, it is placed on record that Ajay (since deceased) had been

regularly taking treatment from Dr. Rajesh (PW8) and Mohan Lal (PW1) has also explained that he had not informed the police officials regarding the

present occurrence/incident as the contractor and owner of the factory had asked him not to lodge any report as they were ready to bear the medical

expenses of Ajay. Accordingly, it is clear thatPWs 1 & 4 have also corroborated testimony of PW6 on allrelevant aspects and have also proved that

Ajay had died due toinjuries suffered at the hands of the accused persons.

Two accused persons, namely, Mahender and Radhey Shyam preferred appeals before this Court bearing Criminal Appeal Nos.749/2011 and

1000/2011 which were decided vide judgment dated 11th October, 2013. This Court held that Ajay was assaulted by the accused persons in the

factory of the appellant on 17th September, 2004.

Relevant portion of the said judgment is reproduced here under:

Mahender (A-1), Radhey Shyam (A-2) and Dinesh were convicted for committing offences punishable under Section 341/304 part- II IPC. By an

order dated 28.09.2010, they were sentenced to undergo RI for ten years with fine Rs.15,000/- each. A-1 and A-2 being aggrieved have challenged

correctness of the judgment.

The incident out of which these appeals arise took place on 17.09.2004 at about 09.00 A.M. at village Ranhola. The genesis of the incident was

petty dispute among A-1 to A-3 on the one hand and Ajay, on the other hand whereby they wrongfully restrained Ajay and assaulted him with fists

and kicks. Police machinery was set in motion on 24.09.2004 when Ajay was admitted at Sanjay Gandhi Memorial Hospital (in short SGM Hospital);

Daily Diary (DD) No. 65B (Ex.PX) was registered at PS Nangloi and First Information Report was lodged on 25.09.2004, under Section 341/323/34

IPC after recording Mohan Lal‘s statement (Ex.PW-1/A). DD No. 38A (Ex.PW-10/C) was recorded after getting intimation of Ajay‘s death in

the hospital on 30.09.2004………………………………. 3. Indisputably, a scuffle took place on 17.09.2004 inKismat‘s factory in which Ajay

was thrashed and beaten butneither he was taken for medical examination nor any reportwas lodged with the police. He was admitted in SGM

hospital by Mohan Lal, his brother on 24.09.2004 at 10.15 P.M

…………The appellants had no animosity with the victim prior to the occurrence. A sudden quarrel took place on 17.09.2004 when the victim

objected to carrying of the bamboos/ ballies from one factory to the other on the instructions of Contractor â€" Suresh who was not implicated in the

case. In the said scuffleA-1, A-2 and Dinesh assaulted Ajay and gave beatings resultinginjuries on the body. The assailants were not armed with

anydeadly weapon and no repeated blows were inflicted on vitalorgan of the deceased. It appears that due to the intervention ofthe owner of the

factory i.e. Kismat, the dispute was settled andthe victim and his brother â€" Mohan Lal did not opt to report theincident to the police ………The

appellants can therefore, onlybe held guilty of hurt under Section 323 IPC and not underSection 304 Part-II IPC.

In the light of above discussion, conviction under Section304 Part-II IPC is altered to Section 323/34 IPC. All theconvicts were sentenced to

undergo RI for ten years with fine `15,000/- each ………Though the appellants were not liable forculpable homicide/ murder, they were nevertheless

instrumentalin accelerating victim‘s death.But for this unfortunate incident,God knows, for how many days / months, the victim could havesurvived.

Each day was precious for him and his family.

On 04thMay, 2017, this Court requisitioned the record of the criminal case relating to FIR No.868/2004, P.S. Nangloi under Sections 341/323/34

IPC. This Court also directed the Investigating Officer of FIR No.868/2004, P.S. Nangloi to produce the record. On 26th July, 2017, ASI Madan

Singh from P.S. Nangloi appeared along with the record of FIR No.868/2004, P.S. Nangloi and the compilation of the relevant documents were taken

on record.

The appellant contested the claim by denying the relationship of employment with the deceased as well as with the three accused persons, namely,

Mahinder, Radhey Shyam and Dinesh. The appellant denied that any such incident took place in his factory. According to the appellant, the incident

occurred in the field and was caused by outsiders and there was no nexus between the incident and the death. The appellant also denied the service

of notice dated 24th May, 2006 sent by the claimants. The appellant claimed that the respondents have filed this claim to intimidate and extract money

from him. The appellant however admitted that he has a factory at Village Ranhola, Nangloi, Najafgarh Road, Delhi. The appellant claimed that the

deceased was working under the contractor.

Respondent No.1, Piariya Devi filed her affidavit by way of evidence in which she reiterated the averments made in the claim application. The

appellant did not cross-examine her despite opportunity. Mohan Lal, elder brother of the deceased, appeared in the witness box and deposed that his

deceased brother was employed in the appellantâ€s factory and was drawing a salary of Rs.3,000/- per month. He further deposed that on 17th

September, 2004, Ajay demanded his unpaid salary whereupon the appellant asked him to finish his work and come back later to receive the amount;

but when Ajay went back to receive the amount, the appellant with his muscle men, namely, Mahinder, Radhey Shyam and Dinesh assaulted him,

which resulted in serious injuries to Ajay, who was taken to the hospital, where he died due to injuries on 30th September, 2004 and FIR No.868/2004

was registered by the police under Sections 341/323/34 IPC at P.S. Nangloi. He further deposed that at the time of the incident, he was working in a

factory at Ranhola which is half a kilometer away from the appellantâ€s factory. He further deposed that the said incident was narrated to him by the

deceased, Ajay himself.

The respondents filed the certified copies of the documents relating to the criminal case arising out of FIR No.868/2004, namely, copies of FIR, site

plan, MLC, death certificate, death summary, death report, post mortem report, charge-sheet, statements of Mohan Lal (PW-1), Dr. B.K. Jha (PW-

2), Badri Prasad (PW-4), Ct.Satpal (PW-5), Naresh Kumar (PW-6) and Dr. Rajesh Gupta (PW-8) in the criminal case which were considered by the

Commissioner, Employeeâ€​s Compensation.

The appellant filed his affidavit by way of evidence in which he averred that the deceased Ajay @ Mahavir Mehto was never employed by the

appellant and he never employed anyone for his work in the factory because he got the work done through a contractor. The cross-examination of the

appellant is reproduced herein under:-

I am Proprietor of M/s Lakra Enterprises situated at Ranhola Village and dealing in trading work of plastic bottles. I had no workman on 17.9.2004

since I am dealing in trading only. I donot remember whether at that time any contractor wasappointed or not but I used to get my work done with the

helpof contract if needed. On 17.9.2004 no worker namely Ajay @Mahavir Mehto was working with my company. No anyquarrel occurred on

17.9.04 in my company. I do not know theaccused person namely Mahinder, Radhey Shyam, Dinesh andChintoo etc. of FIR No.868/04, U/S

341/323/34 IPC of P.S.Nangloi. It is wrong to suggest that Ajay @ Mahvir Mehto was beaten up by the aforesaid accused persons in my company on

17.9.04 because they are not my workers. My company is not registered by the Registrar of Company or any other Govt. Authority/Institute as I have

no any labour in my factory. It is wrong to suggest that the afore said workman worked with me and I had to pay his dues upto Rs.96,000/-. It is

wrong to suggest that the workman Ajay was getting Rs.3000/- per month and at the time of accident he was 23 years old. It is wrong to suggest that

my son Billoo had admitted him for treatment after the incidence. It is wrong to suggest that I also promised to pay of all the expenses incurred by the

injured or his relative later on I backed out. It is wrong to suggest that any FIR was lodged against me. I do not know who has lodged the FIR in my

name and no one has arrested me. I have no relation what so ever with Mr. Mohan Lal and I do not know him. I do not know why Mr. Mohan Lal

has lodged the FIR against me as I had no enmity with him. There was noparticular contractor to whom I assigned the job of contractor. I know the

contents of the affidavit. The name of my companymay be Bottle Industries at Village Ranhola. PF, ESI, Bonus,Leave and Gratuity etc. are not

applicable to my co. becauseno workman was ever engaged by me. No attendance registerand duty register was also applicable at that time. It is

wrong to suggest that Ajay @ Mahvir Mehtro was working with me and he was beaten up by my employees and hence my name had been involved

in the FIR. It is wrong to suggest that I am deposing falsely.

The Commissioner held that the deceased Ajay suffered grievous injuries which resulted in his death, in an accident dated 17th September, 2004

which arose out of and during the course of his employment with the appellant. The Commissioner rejected the defence of the appellant and held that

the appellant tried to conceal material facts relating to the employment of the deceased and he falsely presented the facts in his defence evidence.

 12.The Commissioner further held that the appellant did not even disclose the nature of his business. With respect to the name of his company, the

appellant answered “the name of my company may be Bottle Industries. The Commissioner further noted that the appellant stated that he was

getting the work done through the contractor but did not disclose the name of the contractor. The Commissioner relied upon and believed the

statement of PW-6 in the criminal case that 30-35 workers were working in the factory on the date of the incident. Relevant portion of the impugned

order is reproduced hereunder:

In cross examination of Sh. Kismat Singh on 24.05.2010 in respect of his defence evidence by way of affidavit dated 01.02.2010, respondent replied

that he is the proprietor of M/sLakra Enterprises while in concluding lines he said I knowthe contents of my affidavit, the name of my company may

beBottle Industries. In para no.3 of his affidavit he deposed that he never employed anyone for his work in his factory as he gets the work done

through contractor whereas in cross examination he replied that he had no workmen on 17.09.2004, since he dealt with trading only. The Respondent

has not mentioned in his written statement (sic) at any place that he dealt in trading only and also did not mention in written statement that any

contractor was engaged by him for the purpose of work in the factory. He even nowhere mentioned the nature of his trading business in his affidavit

or in written statement as replied in cross examination. He further replied that there was no particular contractor to whom he assigned the job of

contractor while he explained in affidavit that he gets the work done through contractor as such the question of employment of any person does not

arise at all. Respondentdid not file any document in support of his averments inwritten statement or affidavit to disprove the claim. He stated that P.F.,

ESI, Bonus, Leave and gratuity are not applicable to his company because no workman was ever engaged by him and also that no attendance register

and duty register was applicable on him. He further denied that incident took placein his factory premises during the course of employment. It

isevident that the Respondent has tried to conceal the materialfacts of employment of workmen in his establishment andfalsely depicted the facts in

his defence evidence.

 Brother of deceased Sh. Mohan Lal has filed an affidavit that Ajay @ Mahavir Prasad S/o Sh. Suverdan Prasad is the name of one and the same

person and he was known by the both the names in his village in Bihar. Claimant has also filed the photograph of deceased with his wife Promila Devi

and son Master Manish who is living with his grand mother at present and reading in Class III in a school at Delhi. His D.O.B. certificate dated

22.01.2011 has been filed on record mentioning therein the name of father and mother both.

Claimant has also filed certified copies of FIR no.868/04registered in P.S. Nangloi, U/S 341/323/34 IPC, site map ofincident, MLC, death certificate,

death summary, death reportâ€" unnatural death by violence, post mortem report, copy ofcharge sheet dated 16.03.2005 and the statements of

theprosecution as PW-1, PW-2, PW-4, PW-5, PW-6 and PW-8 ofthe criminal case trial pending before the Learned ASJ,Rohini, Delhi to bring the

truth by certified copies of thedocuments on record. On perusal of site map which is adocument prepared by the IO, indicates the point A is theplace

where incident took place and point B is the placewhere eye witnesses were present. Both the points are insidethe premises of the factory of the

Respondent. In evidence oftrial court deposed by PW-6 Sh. Naresh Kumar eye witnessand co-worker of the deceased on the day of incident

i.e.17.09.2004, who was present in the factory of Respondentstated that attendance register was maintained in factory ofKismat and the presence of

the workers was marked in theregister. Whenever anybody was not present his attendancewas marked by using the alphabet A and in case of

thepresence of worker the alphabet P was marked in theattendance register. 30/35 workers were working in thefactory of Kismat on the day of

incident clearly proves thatincident took place inside the factory of Respondent during thecourse of employment. Relying on the documents on

recordand evidences, I hold that incident took place during thecourse of employment and deceased was the employee of Sh.Kismat Singh Respondent

No.1. Hence issue no.1 is decided in favour of claimant and against the respondent.

(Emphasis Supplied)

13.Submissions of the appellant

13.1The appellant had an open godown named Lakra Enterprises in Village Ranhola, Delhi where empty plastic bottles were collected and their

plastic labels and caps were removed and thereafter, the plastic bottles were cleaned and sent for reprocessing to the actual users.

13.2The appellant never employed any labour/worker and the entire job of removing the labels/caps and cleaning of bottles was done through the

contractor.

13.3The deceased, Ajay was not in the employment of the appellant. The deceased, Ajay was working under the contractor, Suresh which is recorded

in the FIR and the settlement between the fighting persons was done by the contractor.

13.4The appellant placed reliance on the F.I.R in which Mohan Lal, brother of the deceased and the complainant had stated about the engagement of

contractor for work and the deceased doing the work under the instructions of the contractor.

13.5No incident took place in the factory premises of the appellant on 17th September, 2004.

13.6The alleged incident occurred in a field of Village Ranhola and was caused by outsiders.

13.7The deceased, Ajay did not die because of the alleged assault. There was no nexus between the alleged incident of assault and the cause of

death.

13.8Piariya Devi (mother of the deceased) never appeared for crossexamination and as such, her evidence cannot be considered.

13.9Mohan Lal (brother of the deceased) appeared in the witness box as PW2 but no documents have been filed to show that he was the brother of

the deceased and respondent no.2 was son of the deceased. 13.10The correct identity of the deceased, Ajay Kumar is doubtful. Reliance is placed on

photocopy of an affidavit dated 20th April, 2009 of Ajay Kumar. It is contended that as per the affidavit, Ajay Kumar was alive on 20th April, 2009

and, therefore, claim of death of Ajay Kumar on 30th September, 2004 in the alleged incident is false.

13.11The name of the deceased has been mentioned as Mahavir Prasad in ration card who is a different person than Ajay Kumar. Mohan Lal

(brother of the deceased) has filed a false affidavit to depose that Ajay Kumar and Mahavir Prasad is one and the same person. According to the

appellant, Ajay Kumar and Mahavir Prasad are different persons and no compensation could have been claimed on the death of Ajay Kumar.

13.12The respondent No.1 and 2 have filed a false claimto extort compensation from the appellant.

14.Submissions of respondents No.1 and 2

14.1The deceased, Ajay was working as a labourer in the bottle factory of appellant at Village-Ranhola, Nangloi, Najafgarh Road, Delhi, and at the

time of incident, he was 23 years old and he was drawing a salary of Rs.3,000/- per month.

14.2On 17th September, 2004, Ajay was carrying fatta balli from one factory of the appellant to another factory of appellant; scuffle arose in the

factory premises of appellant; Ajay was severely beaten up by the muscle men of appellant because he had demanded his balance dues of salary of

Rs.96,000/-; FIR No.868 U/s.341/304/34 IPC was registered on 25th September, 2004 at P.S.Nangloi, New Delhi against the accused persons namely

Mahender, Radhey Shyam and Dinesh; Ajay was admitted to S.G.M. Hospital, Delhi from where, he was referred to Sanjay Gandhi Memorial

Hospital, Delhi and thereafter, he was referred to Trauma Centre and due to grievous injuries, he died on 30th September, 2004 during the course of

employment. The certified copies of MLC, death report, death certificate, post mortem report and site plan are on record.

14.3The deceased, Ajay was married to Promila Devi and out of this wedlock, Manish was born who was seven years old at the time of his fatherâ€s

death. After the death of Ajay, his widow got remarried with Kameshwar Singh, resident of village Jai Singh Pur, P.O. Seova, Distt. Motihari, Bihar,

leaving behind the son, Manish with his grandmother, Piariya Devi. Promila Devi was added as respondent No.2 before the Commissioner,

Employeeâ€​s Compensation who did not appear despite service and was proceeded ex-parte.

14.4The appellant, Kismat Singh was cross-examined on 24th May, 2010 who even did not want to tell the proper name of his firm as he stated that, I

am Proprietor of M/s. Lakra Enterprises situated at Ranhola Villageâ€, and deposed that The name of my company may be Bottle Industries at

Village Ranhola. He stated that he was dealing in trading work of plastic bottles but engaged no workmen/employees and engaged workers through

contractor but he does not remember whether at that time any contractor was appointed. He further denied that no such quarrel occurred on 17th

September, 2004 in his factory and he also did not know the accused persons and Ajay never worked with him.

14.5The name of the appellant in FIR, site plan where the quarrel occurred and the copy of the charge sheet clearly show that a quarrel took place on

17th September, 2004 at 09:00 AM at a factory of bottles belonging to the appellant at Village Ranhola and point Mark-A in the site plan clearly

shows the place where the deceased was beaten up, waswithinin the factory premises of the appellant. Mohan Lal (PW-1), Badri Prasad (PW-4)

appeared as witnesses in the criminal case. Naresh Kumar (PW-6), co-worker in the factory of the appellant was the eyewitness and he stated that

Ajay was working in the factory of Kismat Singh and the incident took place inside the factory during the course of his employment with the appellant.

Naresh, PW-6 deposed that Attendance Register was maintained in the factory of Kismat and the presence of the worker was marked in the register.

Whenever anybody is not present his attendance was marked by using the alphabet A and in case of presence of worker the alphabet P was marked

in the attendance register. 30/35 workers used to work in the factory of Kismat during the day of incident. The police was informed after about two

days of the incident by me in the Police Station. My statement was recorded by the police on that day. The statements of Badri and Mohan Lal the

brother of deceased were recorded on that day. I do not know whether police had recorded statement of Kismat employer. On the other hand, the

appellant has wrongly stated in his cross-examination that no attendance register and duty register was maintained because no workmen was ever

engaged by me. He has also denied that the injured was admitted by him or his son in any Hospital, whereas PW-6 clearly stated that the owner of

the factory was appellant and the appellant and Mohan removed Ajay to the Hospital. Mohan Lal (PW-1) also stated that owner of the factory

removed his brother to Private clinic at Najafgarh Road, Nangloi, Delhi and after first aid, his brother was discharged from the hospital. So all these

evidences corroborate that the incident took place insidethe factory premises of appellant during the course of Ajayâ€s employment and he was

employed by appellant at Ranhola, Delhi. Mohan Lal, brother of deceased lodged the FIR and reached at the spot on the day of incident on the

information of Naresh, who was one of the employees of the appellant. Respondent No.1 and 2 are entitled for compensation under the provisions of

the Employeeâ€s Compensation Act, 1923 with interest from the date of incident and also penalty under Section 4-A, since the appellant defaulted in

paying the compensation due under this Act within one month from the due date despite the fact he was well aware about the accident and

compensation due from him.

15.The Employeeâ€s Compensation Act is a welfare legislation enacted to secure compensation to the poor workmen who suffer from injuries at their

place of work. The preamble of the Act reads as under:

An Act to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident.

This further becomes clear from a perusal of the Statement of Objects and Reasons, which reads as under:

… The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the

comparative poverty of the workmen themselves, renders it advisable that they should be protected, as far as possible, from hardship arising from

accidents.

An additional advantage of legislation of this type is that, by increasing the importance for the employer of adequate safety devices, it reduces the

number of accidents to workmen in a manner that cannot be achieved by official inspection. Further, the encouragement given to employers to provide

adequate medical treatment for their workmen should mitigate the effects to such accidents as do occur. The benefits so conferred on the workman

added to the increased sense of security which he will enjoy, should render industrial life more attractive and thus increase the available supply of

labour. At the same time, a corresponding increase in the efficiency of the average workman may be expected.

Liability of the principal under Section 12 of the Employee’sCompensation Act

16.Section 12 of the Employeeâ€s Compensation Act imposes the liability of payment of compensation on the principal with right to recover the same

from the contractor in respect of work being carried out by the contractor.

Section 12 of the Employeeâ€​s Compensation Act is reproduced hereunder:

Section 12 â€" Contractingâ€

(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts

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, theprincipal shall be liable to pay to anyemployee employed in theexecution

of the work any compensation which he would havebeen liable to pay if that employee had been immediatelyemployed by him; and where

compensation is claimed from theprincipal, this Act shall apply as if references to the principalwere substituted for references to the employer except

that theamount of compensation shall be calculated with reference to thewages of theemployee under the employer by whom he isimmediately

employed.

(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, or any other person

from whom the employee could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to

indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom

theemployee could have recovered compensation and all questions as to the right to and the amount of any such indemnity shall, in default of

agreement, be settled by the Commissioner.

(3) Nothing in this section shall be construed as preventing an employee from recovering compensation from the contractor instead of the principal.

(4) This section shall not apply in any case where the accident occurred elsewhere that on, in or about the premises on which the principal has

undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.

(Emphasis supplied)

In N.P. Lalan v. V.A. John, (1972) II LLJ 273 Ker, V.R. Krishna Iyer, J. as he then was, explained the purpose of Employee's Compensation Act

in the following words:-

4.The Act with which I am concerned relates to workers, andthe entire purpose of the statute is to see that the weaker sectionof the community,

namely, the working class, is not caught inthe meshes of litigation which involves a protracted course ofappeal. That is why the statute creates a

special Tribunal andprovides only for a restricted appeal ………

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 Part IV of the Indian Constitution serves as a perspective whileconstruing the Workmen's Compensation Act. May be that preConstitution statutes

were interpreted in a particular way byCourts on certain assumptions of the State's functions at thattime. Today it is absolutely plain that the Directive

Principlesof State Policy, though not enforceable by a Court, arenevertheless fundamental in the governance of the country, andmust inform the

judicial mind when interpreting statutescalculated to promote the welfare of the working class. In fact,Article 42 enjoins upon the State to make

provision for securingjust and humane conditions of work and Article 43 compels theState to endeavour to secure, by suitable legislation, to allworkers

conditions of work ensuring a decent standard of life.Indeed, the spirit of Part IV of the Constitution must colour thesemantic exercises of the

judiciary when applying theprovisions of the Workmen's Compensation Act. If that be theapproach to be made, I am clear in my mind that the

argumentthat the proviso to Section 30 has been interpreted liberally inthe pre-Constitution days is of no significance. The same words,with socio-

economic developments in society, acquire a newemphasis in tune with the changed conditions. It is cleartherefore, that the dynamics of legal

interpretation based onsocial changes which have taken place in the nation's life andgoals demand ………

(Emphasis supplied)

18.The object for enacting the Employeeâ€s Compensation Act as early as 1923 was to ameliorate the hardship of economically poor employees who

were exposed to risks in work, or occupational hazards by providing a cheaper and quicker machinery for compensating them with pecuniary benefits.

Section 12 safeguards the right to compensation when the employer delegates the work to another person. Section 12is intended to secure to an

employee 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.The Actrefers to him as the principal. The main object of enacting Section 12 of the

Act is to secure compensation to the employees who have been engaged by the principal employer through a contractor for the work which the

principal employer is supposed to carry out. If a person substitutes another for himself to do his work, he ought not to escape the liability which would

have been imposed upon him, if he had done it himself. The intention of the Legislature in enacting Section 12 appears to be, that the injured employee

or the dependent of a deceased employee 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 employerâ€s) financial

position. The Employeeâ€s Compensation Act, 1923 is a piece of social beneficial legislation and its provisions have to be interpreted in a manner so

as not to deprive the employees of the benefit of the legislation. Reference be made to Bhutabhai Angadbhai v. Gujarat Electricity Board, 1987 (1)

L.L.N. 156; M.R. Mishrikoti v. Muktumsab Hasansab Asoti, (1972) 2 Mys LJ 449; Koli Mansukh Rana v. Patel Natha Ramji, 1992 ACJ 772;

Payyannur Educational Society v. Narayani, (1996) 72 FLR 709;Public Works Department v. Commissioner, Workmen Compensation,

(supra);Koodalingam v. Superintending Engineer, Project Circle, Public Works Department, Kozhikode, 1994 (2) L.L.N. 779; Sardar Sewa Singh v.

Hindustan Lever Ltd., 1980 (1) L.L.N. 566 and Executive Engineer/Deputy General Manager, Sub Urban Division, DHBVNL, Bhiwani v. Priyanka,

2017 (153) FLR 302 in which the Courts have examined the scope of Section 12.

Section 12 of the Act has, in effect, stretched the contours of the word ""employer wider as to include the person contracting with another person

for carrying out the work of the former. In such cases, the provision enjoins that the principal shall stand substituted as the employer. This is achieved

by the words “where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for

references to the employerâ€. The principal may have a claim for indemnity from his contractor or delegatee but the victim or his dependents are not

to be involved in such disputes.

Section 12 will apply notwithstanding the agreement or contract entered into between the principal and contractor regarding their liability for

payment of compensation under the Act. The agreement or contract between the principal and the contractor shall govern only their inter-se rights

and liabilities, and cannot affect the right of an employee or the dependants of an employee, to get the compensation from the principal or from the

contractor at their option.

Section 12 secures compensation by a speedy process to the employee who cannot fight out his battle for compensation. A person who employs

others to advance his own interest is expected to provide a surer basis for payment to the injured employee than the intermediary, who may often turn

out to be a man of straw, from whom compensation may not be available. This is the purpose for which the claimant is given the option undersection

12 (3)of the Act to claim the compensation either from the principal or from the contractor.

The contractor may not be a man of means or he may be merely a man of straw or it may be that wittingly or unwittingly he may possibly be a

part of an arrangement conceived by the principal to avoid confrontation directly with the employee engaged in the execution of the work. In either

case, the interests of the employee need to be protected and that is what this provision secures to the employee. The principal can seek

indemnification from the contractor if he has been made answerable for the payment of compensation. The right of the principal to be indemnified has

thus been incorporated underSection 12 (2), who has entrusted the work to the contractor stipulating the right of indemnification under the Act.

Section 12 of the Act gives protection to the employee in case of an accident and secures compensation from the persons who can pay, so that

such employee will not be dependent upon a petty contractor(s) who may themselves not be able to pay compensation on account of their financial

inability.

Section 12 is an enabling provision for the benefit of the employee(s) and enacted with the clear objective that the employee(s) should not be

hampered by technicalities or practical difficulties of deciphering the correct employers. A pragmatic method has thus been devised for fixing the

liability of the principal employer and thereby affording speedy relief to the employee for payment of compensation on account of the accident, though

the principal has been invested with the right of indemnifying himself from the contractor who may have employed the employee and may have been

responsible for taking work from him.

The definition of ‗workman‘, as it originally existed in the Workmenâ€s Compensation Act, 1923, excluded the workmen whose employment

was of a casual nature and who were employed otherwise than for the purpose of employerâ€s trade or business. Section 2(1) (n) of the

Workmenâ€s Compensation Act, 1923 was amended by Workmenâ€s Compensation (Amendment) Act, 2000 with effect from 8th December, 2000

whereby the words “other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the

employer‘s trade or businessâ€​ in the definition of ‗workman‘ in Section 2(1) (n) were omitted.

Section 2(1) (n) of the Workmenâ€​s Compensation Act, prior to the Workmenâ€​s Compensation (Amendment) Act, 2000 read as under:

Section 2(1) (n) â€

workman means any person (other than a person whoseemployment is of a casual nature and who is employed otherwisethan for the purposes of the

employer‘s trade or business) who is â€

(i) .........

(ii) employed ****]2 in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of

this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of

the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his

dependants or any of them.

  (Emphasis supplied)

Section 2(1)(n) of the Workmenâ€​s Compensation Act, after the Workmenâ€​s Compensation (Amendment) Act, 2000 reads as under:

Section 2(1) (n) â€

  workman means any person who is â€

(i) .........

(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act

and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the

Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his

dependants or any of them.

(Emphasis supplied)

Workmen†Compensation Act was again amended in 2009 by Workmenâ€s Compensation (Amendment) Act, 2009 with effect from

18thJanuary, 2010 whereby the words workman and workmen, were substituted with the words employee and employees. The Workmenâ€s

Compensation (Amendment) Act, 2009 omitted Section 2(1)(n) that defined workman and replaced it by Section 2(1)(dd) which defined employee,

though the substance of the definition remained the same. The aforesaid amendment also changed the name of the Workmenâ€s Compensation Act

to Employeeâ€​s Compensation Act. Section 2(1)(dd) of the Employeeâ€​s Compensation Act reads as under:

Section 2(1) (dd) â€

employee means a person, who is â€" (i)......... (ii).........

(iii)employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act

and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the

Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his

dependants or any of them;

29.In Govind Goenka v. Dayawati(supra), this Court examined the effect of Workmenâ€s Compensation (Amendment) Act, 2000 and held that, after

the amendment, the workman whose employment is of casual nature and who is employed otherwise than for the purpose of employer's trade or

business, would also be covered within the definition of “workman. Relevant portion of the said judgment is reproduced hereunder:

So far as the definition of workman envisaged inSection2(n)of the said Act is concerned, there has been a drasticchange in the definition of the

workman"" as it stood priorto the amendment and after the amendment. Prior to theamendment, certainly the workman whose employment wasof a

casual nature and who was employed otherwise than forthe purpose of trade or business of the employer would notfall in the said definition. However,

after the amendment ofthe said definition through theAmending Act46 of 2000, theParliament had removed the said mischief which was

thenprevailing and coming in the way of such casual workmenwho met with an accident during the course of theemployment unconnected with the

employer's trade orbusiness. With the amendment of the said definition, nowcertainly the workman whose employment is of casualnature and who is

employed otherwise than for the purposeof employer's trade or business would also be covered within the definition of workman.

(Emphasis supplied)

The principles of statutory construction for social welfare legislations are well settled that the words occurring in statutes of liberal import such as

social welfare legislation and 'Human Rights' legislation are not to be put in procrustean beds or shrunk to Lilliputian dimensions. In construing these

legislations, the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Where

legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions but to

advance the intent.

The proceedings before the Commissioner, Employees†Compensation are in the nature of an inquiry and not a trial. Reference be made to

Sections 20(3) and 21(3) of the Employeeâ€s Compensation Act. The principles relating to the difference between an inquiry and trial discussed in

Mayur Arora v. Amit, 2011 (91) TAC 878 apply to proceedings under the Employeeâ€s Compensation Act. To explain the difference, the procedure

in inquiry is Inquisitorial rather than Adversarial trial. In the Inquisitorial system, the presiding Judge is not a passive recipient of information. Rather,

the Presiding Judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He actively steers the search

for evidence and questions the witnesses, including the petitioner or respondent. Most of the victims of the Employees†Compensation belong to the

lowest strata of the society and, therefore, duty has been cast upon the Commissioner to ascertain the facts which are necessary for passing the

order. To illustrate in a case of death of an employee, the Commissioner may summon the Investigating Officer of the police to ascertain the factum

of the accident. Section 25A of the Employee's Compensation Act imposes a time limit of three months to complete the inquiry relating to the

compensation. Section 25A of the Employee's Compensation Act, 1923 is reproduced hereunder: -

Section 25A - Time limit for disposal of cases relating to compensation. â€

The Commissioner shall dispose of the matter relating to compensation under this Act within a period of three months from the date of reference and

intimate the decision in respect thereof within the said period to the employee.

In case of death of an employee in an accident arising out of and during the course of his employment, the employer is required to deposit the

compensation amount with the Commissioner, Employees†Compensation within thirty days failing which Section 4A(3) of the Employeeâ€s

Compensation Act, 1923 empowers the Commissioner to impose penalty upto 50% of the compensation amount after affording the opportunity to

show cause to the employer. Section 4A(3) is reproduced hereunder: -

Section 4A - Compensation to be paid when due andpenalty for default.-

(1) …………

(2) …………

(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner

shall--

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent. per annum or at

such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by

notification in the Official Gazette, on the amount due; and

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon,

pay a further sum not exceeding fifty per cent, of such amount by way of penalty:

Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to

show cause why it should not be passed.

Explanation.--For the purposes of this sub-section, ""scheduled bank"" means a bank for the time being included in the Second Schedule to the Reserve

Bank of India Act, 1934 (2 of 1934).

(3A) The interest and the penalty payable under sub-section (3) shall be paid to the [employee] or his dependant, as the case may be.

Summary of Principles

33.1The Employees†Compensation Act, 1923 is a piece of social beneficial legislation and its provisions have to be interpreted in a manner so as not

to deprive the employees of the benefit of the legislation.

33.2The object for enacting the Employees†Compensation Act even as early as 1923 was to ameliorate the hardship of economically poor

employees who were exposed to risks in work, or occupational hazards by providing a cheaper and quicker machinery for compensating them with

pecuniary benefits.

33.3Section 12 safeguards the right to compensation when the employer delegates the work to another person.Section 12is intended to secure to an

employee 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.The Actrefers to him as the principal.

33.4The main object of enacting Section 12 of the Act is to secure compensation to the employees who have been engaged by the principal employer

through the contractor for the work which the principal employer is supposed to carry out by his own employees. If a person substitutes another for

himself to do his work, he ought not to escape the liability which would have been imposed upon him, if he had done it himself.

33.5The intention of the Legislature in enacting Section 12 provision appears to be that the injured employee or the dependent of a deceased employee

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 employerâ€​s) financial position.

33.6Section 12 of the Act has, in effect, stretched the contours of the word ""employer wider as to include the person contracting with another person

for carrying out the work of the former. In such cases, the provision enjoins that the principal shall stand substituted as the employer. This is achieved

by the words where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to

the employerâ€. The principal may have a claim for indemnity from his contractor or delegatee but the victim or his dependents are not to be involved

in such disputes.

33.7Section 12 will apply notwithstanding the agreement or contract entered into between the principal and contractor regarding their liability for

payment of compensation under the Act. The agreement or contract between the principal and the contractor shall govern only their inter-se rights

and liabilities, and cannot affect the right of the employee or the dependants of the employee, to get the compensation from the principal or from the

contractor at their option.

33.8Section 12 shall apply even in cases of several tiers of employers or petty contractors. It is a matter of common knowledge that contractors in

turn employ other petty contractors working under their direction and an employee may be actually employed by one of these aforesaid persons and in

such a case, there may be no direct privity of contract between the principal and the employee in the last analysis. The employee has, for all practical

purposes to deal with an immediate employer but when it comes to lodging a legal claim for compensation on account of an accident, he is concerned

with the principal employer and not the immediate employer qua the employee. 33.9In case of the multiplicity of immediate and indirect or remote

employers/contractors, Section 12 relieves an employee of the difficulty of ascertaining with precision as to who should be deemed to be the actual

employer liable for compensation under the Act. The purport of Section 12 is to create a deemed employer-employee relationship between the

principal employer and the employee of the immediate employer who is brought in by the principal employer as his contractor.

33.10Section 12 secures compensation to the employee who cannot fight out his battle for compensation by a speedy process. A person who employs

others to advance his own interest is expected to provide a surer basis for payment of the injured employee than the intermediary, who may often turn

out to be a man of straw, from whom compensation may not be available. This is the purpose for which the claimant is given the option undersection

12(3)of the Act to claim the compensation either from the principal or from the contractor.

33.11The contractor may not be a man of means or he may be merely a man of straw 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 employee engaged in the execution of the work. In either

case, the interests of the employee need to be protected and that is what the provision secures to the employee. The principal can seek

indemnification from the contractor if he has been made answerable for the payment of compensation. The right of the principal to be indemnified has

thus been incorporated underSection 12(2), who has entrusted the work to the contractor stipulating the right of indemnification under the Act.

33.12Section 12 of the Act gives protection to the employee in case of an accident and secures compensation from the persons who can pay, so that

such employee will not be dependent upon a petty contractor(s) who may themselves not be able to pay compensation on account of their financial

inability.

33.13Section 12 is an enabling provision for the benefit of the employee(s) and enacted with the clear objective that the employee(s) should not be

hampered by technicalities or practical difficulties of deciphering the correct employers. A pragmatic method has thus been devised for fixing the

liability of the principal employer and thereby affording speedy relief to the employee for payment of compensation on account of the accident, though

the principal has been invested with the right of indemnifying himself from the contractor who may have employed the employee and may have been

responsible for immediately taking work from him.

33.14If the person who employs contractor is allowed to evade his liability by raising the defence that only the contractor or the intermediary should

pay the compensation, then Section 12 will become redundant.

33.15This interpretation finds support from the amendment of Section 2(1)(n) of the Act (vide Workmenâ€s Compensation (Amendment) Act, 2000)

by including casual employees and employees employed other than for the purposes of employer's trade or business in the definition of employee.

33.16The definition of employee envisaged in Section 2 (1) (n) of the said Act has undergone drastic change. Prior to the amendment, an employee

whose employment was of a casual nature and who was employed otherwise than for the purpose of trade or business of the employer; did not fall in

the said definition. However, after the amendment of the said definition through theAmending Act46 of 2000, the Parliament had removed the said

mischief which was then prevailing and coming in the way of such casual employee who met with an accident during the course of the employment

unconnected with the employer's trade or business. With the amendment of the said definition, now an employee whose employment is of casual

nature and who is employed otherwise than for the purpose of employerâ€​s trade or business is certainly covered within the definition of employee.

33.17Applying the rules of literal and purposive interpretation, superior purpose and felt necessity, this Court is of the view that the casual employees

and employees employed otherwise than for the purposes of the employerâ€s trade or business are entitled to all the benefits of the Employeeâ€s

Compensation Act including that of Section 12 of the Act. This Court agrees with the view taken by this Court in Govind Goenka v. Dayawati

(supra).

33.18The proceedings before the Commissioner, Employees†Compensation are in the nature of an inquiry. The principles relating to the difference

between an inquiry and trial are discussed in Mayur Arora v. Amit, (supra).

Findings

The deceased, Ajay was working for the appellant in his factory at Village Ranhola, Nangloi, Najafgarh Road, Delhi on 17th September, 2004

through the contractor, Suresh when he was attacked by Mahinder, Radhey Shyam and Dinesh which resulted in injuries which subsequently, resulted

in his death.

The deceased, Ajay was working for the appellant through the contractor, Suresh and the appellant, being the principal employer, is liable to pay

the compensation to respondents No.1 and 2 under Section 12 of the Employeeâ€​s Compensation Act. All the ingredients of Section 12 are satisfied in

the present case and the appellant, being the principal, is liable to pay the compensation to respondent no.1 with the right to recover the same from the

contractor. This case is squarely covered by the principles laid down in the judgments discussed above.

The death of Ajay due to the aforesaid attack is an “accident†for the purpose of Employeeâ€s Compensation Act. Reference be made to the

judgment of Supreme Court in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC) and to the judgments of this Court in United India

Insurance Co. Ltd. v. Kamlesh, (2017) 4 LLJ 522, Ram Niwas Gupta v. Bindu Singh, (2017) 241 DLT 1 and Star Press v. Meena Devi, (2017) 239

DLT 357 in which this Court has extensively examined the law with respect to the liability of the employer to pay compensation in cases of accidental

murder. Applying the principles laid down in the above mentioned judgments, the death of Ajay is held to be an accident. In the present case, the

dominant purpose of the assailants was not to kill the deceased; the deceased did not in any way added to the peril; the deceased could not and did not

contemplate his assault, and it was an unforeseen and untoward happening and therefore, an accident. There is a casual connection between the

employment and the accidental attack as the deceased was working in the factory when he was assaulted during the course of his employment.But

for his employment, the deceased would not have been at the place of accident, where he was at the time when he was assaulted and accident

occurred in the course of the employment of the deceased.

Since the proceedings under the Employees†Compensation Act are in the nature of an inquiry, this Court summoned the Investigating Officer of

FIR No.868/2004, P.S. Nangloi who produced the record which was examined by this Court. This Court also summoned the record of the criminal

case relating to FIR No. 868/2004 which was examined by this Court as part of the inquiry. This Court is satisfied that respondent No.1 and

2 are entitled to the compensation of Rs.3,27,705/- and funeral charges of Rs.2,500/- along with interest @ 12% per annum w.e.f. 30th October, 2004

for the reasons stated hereinabove.

The appellant has misused the process of law by raising false claims. The appellant has shamelessly resorted to falsehood. The appellant has no

respect for truth and this case warrants prosecution as well as imposition of penal costs on the appellant. The particulars of the false claims of the

appellant are as under:-

38.1. The appellantâ€​s contention that no incident took place in his factory on 17th September, 2004 is absolutely false and is rejected.

Respondents No.1 and 2 have duly proved that the incident took place inside the appellantâ€s factory. The site plan on record shows that the incident

has taken place inside the appellantâ€​s factory, which has been accepted by the Sessions Court as well as the High Court.

38.2. The appellantâ€s plea that incident dated 17th September, 2004 took place in the fields of the Village Ranhola and was caused by outsiders, is

false and rejected. Respondent No.1 and 2 have duly proved the place of incident as well as the name of the accused persons. The Sessions Courts

as well as the High Court have accepted the place of incident as well as the name of the accused persons.

38.3. The appellantâ€s plea that the deceased, Ajay did not die due to the alleged assault is also false. It has been duly proved by the claimants and

also held by the Sessions Courts as well as by the High Court that the deceased, Ajay died because of the injuries in accident.

38.4. Piariya Devi appeared in the witness box as PW1 on 02nd September, 2009 when an opportunity to cross-examine her was given to the

appellant who sought an adjournment which was declined by the Commissioner on the ground that Piariya Devi, aged about 80 years had come from

Motihari, Bihar and it was not possible for her to appear again. The Commissioner recorded her statement on the basis of the Court questions. The

appellantâ€s representative stated that he does not want to ask any question from PW1. The appellant did not cross-examine PW1, Piariya Devi

despite opportunity granted and the un-rebutted testimony of PW1 constitutes sufficient proof of the respondentâ€s case. In that view of the matter,

the appellant have raised a false plea before this Court that PW1 did not appear for crossexamination and no opportunity of cross-examination was

afforded to the appellant.

38.5. The appellant filed the photocopy of the affidavit bearing the name of the deceased, Ajay Kumar, father of Manish Kumar to contend that Ajay

Kumar has not died and is still alive. The affidavit appears to have been filed in some school to secure the admission of Manish Kumar in second

standard in 2009. The contents of the affidavit with respect to the name of the deponent are certainly not correct but to contend that Ajay Kumar is

alive is the height of the false claim that can be raised by a litigant. Â

38.6. Mohan Lal (brother of the deceased) filed the affidavit before the Commissioner to depose that Ajay Kumar was also known as Mahavir

Prasad. This Court is satisfied that Ajay Kumar and Mahavir Prasad are one and same person. The appellantâ€s plea that Ajay Kumar and Mahavir

Prasad are two different persons, is false and is rejected.

38.7. The appellantâ€s submission disputing relationship of Mohan Lal (brother of the deceased) and Manish Kumar (son of the deceased) is frivolous

and is rejected.

38.8. The appellantâ€s plea that respondent Nos.1 and 2 have filed a false claim and are liable to be prosecuted under Section 340 of the Cr.P.C., is

the limit of frivolous submissions that can be raised by a litigant. The appellant has raised false claims before this Court and is liable to be prosecuted

under Section 209 of the Indian Penal Code.

38.9. This Court is pained to note that the appellant has interfered with the administration of justice by raising false claims to frustrate the lawful claim

of respondent Nos.1 and 2.

According to the appellant, the deceased was working through the contractor of the appellant. However, the appellant never produced relevant

records of his factory such as name of the contractor(s), nature of work done by contractor(s), amount paid to the contractor(s), salary slips,

attendance register or name of workers employed by contractor(s) which are mandatory under Contract Labour (Regulation and Abolition) Act, 1970

as 30-35 workers were working in the appellantâ€​s factory on the date of the incident.

The appellant has not even disclosed the aforesaid relevant facts in this appeal. The relevant portion of this appeal are reproduced hereunder:

That the petitioner is a Citizen of India residing at Village Ranhola, Delhi and has been basically an Agriculturist. In the small portion of his

agricultural land the petitioner has kept an open Godown for collection of empty Plastic Bottles purchased through the Scrap Dealers. The said

Godown isnamed as M/s. Lakra Enterprises where Paper Labels andCaps of the Plastic Bottles are being removed and then aftercleaning the Plastic

Bottles are sent for re-processing/furtherprocessing to the actual users. The entire job of removing theLabels/Rappers and Caps from the Bottles and

cleaning ofbottles are done through Contractor. The appellant neveremployed any Labour/Worker nor engaged any person for thejobs narrated

hereinabove.

 xxx  xxx xxx

7.… As far as documents are concerned, the appellant hadclearly stated that he never employed anybody for his workand he got the work done

through Contractor and as such hedid not file any document. The appellant had further stated that E.P.F., E.S.I., Bonus, Leave, Gratuity were not

applicable to his company because no workman was ever engaged by him and also that no Attendance Register was applicable on him. The Appellant

further denied that any incident took place inhis factory premises... The engagement of the Contractor isalso apparent from the F.I.R. in which the

complainant ShriMohan Lal has also clearly stated engagement of a Contractorfor work and Shri Ajay, deceased doing work under theinstructions of

the Contractor. In the subsequent portion ofthe F.I.R., the complainant Shri Mohan Lal has further statedthat the Contractor had got settlement done,

meaning therebythat the deceased Shri Ajay was working under the contractorand the Contractor was the main person and a settlement(naturally

between the fighting persons) was also got done bythe Contractor. The Learned Commissioner (sic) under Workmen‘s Compensation Act failed to

appreciate that in such a situation there was no role of the appellant in the employment of Shri Ajay (sic), deceased nor in connection with his work

i.e. carrying of alleged Balli/Fatte from one factory to the other which he was doing under the instructions of the Contractor and he had no role in the

fight between ShriAjay on one hand and alleged Shri Mahender, Radhey Shyam,Dinesh and Chintu on the other hand and that the appellanthad no role

in settlement of their dispute which was also gotdone by the Contractor.

(Emphasis Supplied)

Making false claim is an offence under Section 209 of the Indian Penal Code

Raising a false claim before the Court is an offence under Section 209 of Indian Penal Code which is reproduced here under:-

“Section 209 - Dishonestly making false claim in Court â€" Whoever fraudulently or dishonestly, or with intent to injure or annoy any person,

makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may

extend to two years, and shall also be liable to fine.

In H.S. Bedi v. National Highway Authority of India, 2016 (155) DRJ 259, this Court examined the scope of Section 209 of the Indian Penal Code

and held as under:

15.1 Section 209 of the Indian Penal Code makes dishonestly making a false claim in a Court as an offence punishable with imprisonment upto two

years and fine.

15.2 The essential ingredients of an offence under Section 209 are: (i) The accused made a claim; (ii) The claim was made in a Court of Justice; (iii)

The claim was false, either wholly or in part; (iv) That the accused knew that the claim was false; and (v) The claim was made fraudulently,

dishonestly, or with intent to injure or to annoy any person.

15.3 A litigant makes a ‗claim‘ before a Court of Justice for the purpose of Section 209 when he seeks certain relief or remedies from the Court

and a ‗claim‘ for relief necessarily impasses the ground for obtaining that relief. The offence iscomplete the moment a false claim is filed in Court.

15.4 The word claim in Section 209 of the IPC cannot be read as being confined to the prayer clause. It means the claim to the existence or non-

existence of a fact or a set of facts on which a party to a case seeks an outcome from the Court based on the substantive law and its application to

facts as established. To clarify, the word claim would mean both not only a claim in the affirmative to the existence of fact(s) as, to illustrate, may be

made in a plaint, writ petition, or an application; but equally also by denying an averred fact while responding (to the plaint/petition, etc.) in a written

statement, counter affidavit, a reply, etc. Â Doing so is making a claim to the non-existence of the averred fact. A false denial, except when the

person responding is not aware, would constitute making a claim in Court under Section 209 IPC.

15.5 The word ‗claim‘ for the purposes of Section 209 of the Penal Code would also include the defence adopted by a defendant in the suit. The

reason for criminalising false claims and defences is that the plaintiff as well as the defendant can abuse the process of law by deliberate falsehoods,

thereby perverting the course of justice and undermining the authority of the law. Â

15.6 Whether the litigant‘s ‗claim‘ is false, is not considered merely from whatever he pleads (or omits to plead): that would be to elevate form

over substance. To make out the offence, the Court does not merely inspect how a litigant‘s pleadings have been drafted or the case has been

presented. The real issue to beconsidered is whether, all said and done, the litigant‘s actionhas a proper foundation which entitles him to seek

judicialrelief.

15.7 Section 209 was enacted to preserve the sanctity of theCourt of Justice and to safeguard the due administration of lawby deterring the deliberate

making of false claims. Section 209was intended to deter the abuse of Court process by all litigantswho make false claims fraudulently, dishonestly, or

with intentto injure or annoy.

15.8 False claims delay justice and compromise the sanctity ofa Court of justice as an incorruptible administrator of truth anda bastion of rectitude.

15.9 Filing of false claims in Courts aims at striking a blow atthe rule of law and no Court can ignore such conduct which hasthe tendency to shake

public confidence in the judicialinstitutions because the very structure of an ordered life is put atstake. It would be a great public disaster if the

fountain ofjustice is allowed to be poisoned by anyone resorting to filing offalse claims.

15.10 The Courts of law are meant for imparting justicebetween the parties. One who comes to the Court, must comewith clean hands. More often

than not, process of the Court isbeing abused. Property-grabbers, tax-evaders, bank-loandodgers and other unscrupulous persons from all walks of

lifefind the Court-process a convenient lever to retain the illegalgains indefinitely. A person, who's case is based on falsehood,has no right to approach

the Court. He can be summarilythrown out at any stage of the litigation.

15.11 The disastrous result of leniency or indulgence ininvoking Section 209 is that it sends out wrong signals. Itcreates almost a licence for litigants

and their lawyers to indulge in such serious malpractices because of the confidencethat no action will result.

15.12 Unless lawlessness which is all pervasive in the society isnot put an end with an iron hand, the very existence of acivilized society is at peril if

the people of this nature are not shown their place. Further if the litigants making false claimsare allowed to go scot free, every law breaker would

violate thelaw with immunity. Hence, deterrent action is required to uphold the majesty of law. The Court would be failing in itsduties, if false claims

are not dealt with in a manner proper andeffective for maintenance of majesty of Courts as otherwise the Courts would lose its efficacy to the litigant

public.

(Emphasis supplied) Imposition of costs

False claims and defences are really serious problems. It is a matter of common experience that Court's otherwise scarce time is consumed or

more appropriately, wasted in a large number of uncalled for cases. It is the duty of the Courts to see that such wrong doers are discouraged at every

step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs of all these years long litigation. Imposition of actual,

realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of filing false cases.

The Supreme Court and this Court have time and again held that heavy costs should be imposed in frivolous cases and in appropriate cases,

prosecution be ordered to maintain purity and sanctity of judicial proceedings.

In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, the Supreme Court has held that the Courts have to take into consideration the

pragmatic realities and have to be realistic in imposing the costs. Relevant portion of the said judgment is reproduced hereunder: Â

……..We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would

be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is

no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or

more appropriately wasted in a large number of uncalled for cases.

 xxx xxx xxx

The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the

existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.

  xxx xxx xxx

C. Imposition of actual, realistic or proper costsand or ordering prosecution would go a long wayin controlling the tendency of introducing

falsepleadings and forged and fabricated documents bythe litigants. Imposition of heavy costs would alsocontrol unnecessary adjournments by the

parties.In appropriate cases the courts may considerordering prosecution otherwise it may not bepossible to maintain purity and sanctity of

judicialproceedings.

While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to

actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the

lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges

towards typing, photocopying, court fee etc.

The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest

and defend the litigation in various courts. The Appellants in the instant case have harassed the Respondents to the hilt for four decades in a totally

frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years.

On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned

order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees Two Lakhs only). We are

imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.

(Emphasis supplied) 46. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (2012) 5 SCC 370, the Supreme Court held that heavy

costs and prosecution should be ordered in cases of false claims and defences.

Relevant portion of the said judgment is reproduced hereunder: Â

This Court in a recent judgment in Ramrameshwari Devi (supra) aptly observed at page 266 that unless wrongdoers are denied profit from

frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no

incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more

appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be

minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268 that imposition of actual, realistic or

proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and

forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In

appropriatecases, the Courts may consider ordering prosecutionotherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

 (Emphasis supplied)

47.In Subrata Roy Sahara v. Union of India (supra), the Supreme Court stressed the need for imposition of costs in frivolous litigations. Relevant

portion of the said judgment is reproduced hereunder: Â

191……………. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and

senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part.

He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his.

He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for

no fault of his. Should a litigant not be compensated for what he has lost for no fault?

   (Emphasis Supplied)

Ethics in litigation â€" Duty not to deceive or mislead

The most basic obligation of the litigant and his lawyer is not to deceive or mislead the Court. This responsibility extends to every function

including the presentation and interpretation of facts, drafting of pleadings and documents, legal argument and other submissions or communications

with the Court. The duty not to intentionally mislead or deceive is only the bare minimum required of the advocate and solicitor. As an officer of the

Court, he is expected to advance the public interest in the fair administration of justice even if this would jeopardise his client's interests. Hence, he is

required to inform the Court of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable

towards the contention for which he argues. In the same context, he is prohibited from advancing submissions, opinions or propositions which he

knows to be contrary to the law. He is bound not to make any statements which are inaccurate, untrue and misleading.

In D.P. Chadha v. Triyugi Narain Mishra, (2001) 2 SCC 221, the Supreme Court held as under:-

... A lawyer in discharging his professional assignment hasa duty to his client, a duty to his opponent, a duty to the court, aduty to the society at

large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand, more so, when

there are conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a party to any deception, design or fraud. While

placing the law before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to

persuade an exposition which would serve the interest of his client so long as the issue is capable of that resolution by adopting a process of reasoning.

However, apoint of law well settled or admitting of no controversy must notbe dragged into doubt solely with a view to confuse or misleadthe Judge

and thereby gaining an undue advantage to the clientto which he may not be entitled. Such conduct of an advocatebecomes worse when a view of the

law canvassed by him is notonly unsupportable in law but if accepted would damage theinterest of the client and confer an illegitimate advantage on

theopponent. In such a situation the wrong of the intention and impropriety of the conduct is more than apparent...

(Emphasis supplied)

50.This Court is of the view that the appellantâ€s counsel did not fairly state the facts but presented them in such a way as to mislead the Court as to

true facts and thereby, abused the process of law. This matter was heard on various dates when the counsel for the appellant raised highly

irresponsible and frivolous pleas and mislead this Court on law as well as on facts. The appellantâ€s counsel did not disclose the material facts fairly

and truly and stated them in a distorted manner and thereby, misled this Court. The appellantâ€s counsel have attempted to overreach and mislead this

Court by false and untrue statements and withholding true information which would have a bearing in this matter. The appellantâ€s conduct to mislead

the Court not only injured the respondent Nos.1 and 2 but also caused serious damage to this institution. The appellant has no respect for truth and has

polluted the fountain of justice with tainted hands. The appellant has interfered with the administration of justice and has attempted to impede,

undermine and obstruct the free flow of the holy stream of justice. The law does not require the Court to sit back with folded hands and fail to take

any action in the matter. However, the appropriate order in this regard shall be passed after hearing the appellantâ€​s counsel.

Conclusion

On 17th September, 2004, the deceased Ajay @ Mahavir Mehto was assualted which resulted in his death. The death of Ajay is an

“accident†for the purpose of compensation under the Employees†Compensation Act. The deceased was working for the appellant, through the

contractor at the time of accident and the accident arose out of and during the course of employment of the deceased. All the ingredients of Section

12 of Employeeâ€s Compensation Act are satisfied in the present case and the appellant, being the principal, is liable to pay the compensation of

Rs.3,27,705/- along with interest @12% per annum to respondent no.1 with the right to recover the same from the contractor. Â

The appellant has deposited Rs.3,27,705/- with the Commissioner, Employeeâ€s Compensation out of which 2/3rd amount has already been

released to respondents No.1 and 2 and the balance 1/3rd amount is lying with the Commissioner. The Commissioner, Employeeâ€s Compensation is

directed to release the balance amount to respondents No.1 and 2 by transferring the same to their savings bank account near the place of their

residence in Bihar.

The appellant is directed to deposit the balance award amount with the Registrar General of this Court within two weeks. The amount already

deposited shall be first adjusted towards the interest and thereafter, towards the principal in terms of Order XXI Rule 1 of the Code of Civil Procedure

and the principles laid down by this Court in Brijesh Kumar Verma v. Aurangjeb, FAO 345/2016 decided on 24th April, 2018. The computation of the

interest shall be filed on affidavit before the next date of hearing.

Section 4-A(3) of the Employeeâ€s Compensation Act provides for penalty upto 50% of the compensation amount if the compensation due under

the Act is not paid within one month it fell due. In the present case, the compensation was not paid to respondent no.1 and 2 when it fell due.

However, the Commissioner, Employeeâ€s Compensation has not imposed penalty under Section 4-A (3) of the Employeeâ€s Compensation Act.

This Court is empowered to take up the proceedings for imposition of penalty. Â

Issue show cause notice to the appellant to show cause as to why the penalty be not imposed under Section 4-A (3) of the Employeeâ€s

Compensation Act. Let the reply to the show cause notice be filed within two weeks.

This case warrants imposition of heavy cost on the appellant for instituting this frivolous litigation and, therefore, cost of Rs.2,00,000/- is imposed

on the appellant. The cost be deposited by the appellant with the Registrar General of this Court within two weeks.

This Court is of the prima facie view that the appellant has raised false claims before this Court and therefore, a show cause notice is hereby

issued to the appellant to show cause as to why a complaint be not made against him under Section 340 Cr.P.C. for raising false claims under Section

209 IPC. Reply to the show cause notice be filed by the appellant within two weeks.

The appeal is disposed of in the above terms. List on 16th October, 2018 for considering the reply of the appellant to the show cause notices

mentioned in para 55 and 57 above as well as hearing in terms of paragraph 50 above. The appellant shall remain present in Court on the next date of

hearing.

Mr. Kirti Uppal, President of High Court Bar Association and Mr. Sanjoy Ghose, Additional Standing counsel for GNCTD are appointed as

amicus curiae to assist this Court in this matter.

Copy of this judgment be sent to Mr. Kirti Uppal, President of the Delhi High Court Bar Association; Mr. Sanjoy Ghose, Additional Standing

counsel for GNCTD and Mr. Sajiv Kakra, Advocate for compliance by State Bank of India.

Mr. Sanjoy Ghose, Additional Standing counsel for GNCTD shall circulate the copy of this judgment to all the Commissioners, Employeesâ€

Compensation.

Mr. Sanjoy Ghose, Additional Standing counsel for GNCTD shall ensure the compliance of paragraph 52 by the Commissioner, Employeesâ€

Compensation.

The record of the criminal case relating to FIR No.868/2004 be returned back.

The record of the Commissioner, Employeesâ€​ Compensation be also returned back forthwith.

Dasti.