Sanjay Construction Industries vs Shantwan Tembhe & Ors.

Heard.

In the present appeal, challenge is to the judgment and order dated 08.03.2018 passed by the Commissioner under the Employees Compensation Act, Labour Court, Amravati in WCA No.7/2008, whereby the compensation has been awarded at the tune of Rs.2,33,568/- in favour of the respondents.

The present respondents filed a claim application under the provisions of Workmen’s Compensation Act, in the capacity of legal representatives of deceased Namita. As per the submission of the respondents, deceased Namita, who was the resident of village Utawali, Taluka Dharani, District Amravati, was doing work as a labour in the construction work of road carried out by the appellant company as well as in other work, which time to time given to her by the appellant. It is their contention before the Commissioner that she was receiving Rs.80/- per day and salary of Rs.2400/- per month.

On 22.12.2001, the deceased was engaged as a labour in a Gittikhadan, situated at village Utawali, Taluka Dharani, district Amravati. While she was working as a labour, due to mishap in the Khadan, the stones fell down on her and she died in an accident arising out of and during the course of employment. It is also stated by them that at the time of incident, deceased was working under the instructions and employment of present appellant at Gittikhadan and immediately after the accident, her father-in-law has reported the same to the police station.

The police authority immediately visited the spot and prepared the spot panchanama and inquest panchanama of the incident. The said police papers were placed on record at exhibits 34 to 37. From these documents, it is established that during the work of excavation of hills at the instance of appellant which was going on with due permission of Tahsildar, mishap took place and death was caused to deceased.

According to respondents, after the accident, on 19.10.2004, they have issued legal notice to the appellant and specifically stated that the deceased was working with them on a daily wages basis and on 22.12.2001, due to mishap happened in Gittikhadan, she caused death and, therefore, the compensation should be paid to the legal representatives of the deceased.

The present appellant did not respond to the legal notice and, therefore, the present respondents preferred the application under the provisions of Workmen’s Compensation Act before the Labour Court, Amravati.

The present appellant has vehemently opposed the application. It was his contention that Gittikhadan Utawali belongs to the Revenue Department. Therefore, the Revenue Department was a necessary party. They further alleged that there is no relationship between employer and employee and it is the burden of the respondents to first establish the relationship and then only their application can be entertained by the Court. As such, the whole claim made by the present respondents was denied.

In the background of above said factual position, on behalf of present respondents, the husband of the deceased Shantwan Ashok Tembhe entered into the witness box and stated that the deceased, who was 36 years old, was working on a daily wages basis with the appellant and died during the course of employment. Hence, he is entitled for the compensation in the matter.

During his evidence, the document exhibit-42 was produced, which was the list issued by the Naib Tahsildar granting thereby permission to extract Gitti from Khadan at Mouza Diya Shivar. In the said list, the name of the appellant at Serial Nos.6 to 11. Hence, it is the submission of the respondents that at the relevant time, appellant was operating Gittikhadan and, therefore, for the death during the course of employment of the deceased, appellant is responsible for the compensation.

On behalf of appellant, Rushabhkumar Swarupchand Jain has been examined before the Labour Court. In his cross-examination, he has specifically admitted that whenever he is in need of stones for road, he used to obtain permission from the Tahsildar for extracting stones. He also admitted that Mouza Utawali, Taluka Dharni, there was a Khadan of appellant and he has obtained the permission to extract the stones from Survey No.126 of Mouza Diya, Taluka Dharani. He further admitted that all works of appellant construction company are done under his signature. He further admitted that he received the information of mishap in Khadan and the police machinery has prepared the spot panchanama and inquest panchanama. He further admitted that he knows that the deceased was wife of respondent No.1 and he further admitted that applicant had been asking to him to pay the compensation.

In light of this evidence, which was brought on record before the Commissioner, the Commissioner has decided the application on merits. The learned Commissioner by considering the admissions, which he has given in the cross-examination and on perusal of police papers i.e. spot panchanama and inquest panchanama reached to the conclusion that the accident was caused during the course of employment and thereby the appellant held responsible to pay the compensation of Rs.2,33,568/-.

The appellant challenged the said judgement of the Commissioner before this Court by way of present appeal. This Court on 14.10.2025 framed the following substantial question of law in the matter:

In the present matter before considering the submission of the parties, it is necessary to be recorded that the compensation claimed by the applicant under the Employee’s Compensation Act is a piece of beneficial legislation. Here, the proceedings are to be considered as like of proceedings in a Motor Accident case. Strict proof is not required to prove the employee-employer relationship. The theory of beyond reasonable doubt is not applicable in such cases considering the object and statement of the act. Hence, keeping in mind the intention of the legislature, this matter is required to be decided on the basis of the document and evidence made available by the parties.

In the present case as stated earlier, the appellant before the Commissioner has admitted that as per Exhibit- 42, the Tahsildar has granted permission in favour of the appellant for excavation of mouza Diya Shiwar. Appellant in his cross-examination admitted that whenever he needs of stones for the construction of road, he used to obtain permission from Tahsildar for extracting the stones from Khadan. If the appellant is doing this regular business, it is presumed that he maintained the record of the employees, who are employed by him and possessed their attendance role, pay register to demonstrate the name of employees and how much amount he used to pay to them towards labour charges. If appellant is coming with a case before this Court raising the issue of employee-employer relationship, in my opinion, he has to first produce the said record and demonstrate that as per his record, name of deceased was nowhere found and hence, on that ground, he is denying the employee-employer relationship in the matter.

It is further pertinent to note that from the evidence, particularly admissions of the appellant in his cross-examination, it is clear that the dead body of the deceased Namita was found at Gittikhadan. The police machinery has given the information to the appellant about the mishap in Khadan. Accordingly, the police have prepared the spot panchanama. In the this entire process, it is nowhere clarified by the appellant, how the dead body of the deceased was found in Khadan, which is owned by him or run by him under the permission of the Tahsildar. At the time, why he did not disclose the police authorities, that deceased was not her employee and should have disowned the fact that work of Khadan was not carried out as his instance. But, nothing is came on record from appellant.

It is further pertinent to note that if appellant has denied the fact that deceased was not working under him, he could have pointed out or placed on record the permission granted by the Tahsildar to run or carry out work at Gittikhadan, which would have clarified the period, during which he was permitted to carry out the work. And from that document, the conclusion could have been drawn in the matter that as appellant was not having control over Khadan at relevant time, therefore, he cannot be held responsible for compensation. But, the appellant did not place on record any documentary evidence in that regard on record.

In my view, in such facts and circumstances, the judgement delivered by the Coordinate Bench in the case of Bharti Axa General Insurance Co. Ltd versus Manohar Atmram Pardhi & Ors reported in 2020 SCC Online Bombay 11790 is relevant in the matter. The observation of this Court in paragraph 7, 8 and 9 is relevant, which is reproduced as under:

The appellant in support of his submission has relied upon the judgment of the Hon’ble Supreme Court of India in case of Balwant Rai Saluja and another Vs. Air India Limited and others, (2014) 9 SCC 407. According to me, the said judgment in respect of labour law where the issue of salary and other factors were considered under the different Act. Here, the case is under the provisions of Workmen’s Compensation Act. Therefore, the intention of the legislature in both these acts is different and therefore, according to me, the view taken by the Coordinate Bench as referred above seems to be more pragmatic in the facts and circumstances of the case.

Hence, considering the aforesaid reasons, I am of the opinion that the appellant failed to discharge his burden to produce the relevant documents on record of which he was the custodian and, therefore, he cannot be allowed to take the benefit of the same and, accordingly, I hold that the deceased was working as daily wages employee, therefore, appellant is responsible to pay the compensation as determined by the Labour Commissioner in the matter.

In the present case, one aspect which needs to be recorded that deceased and present respondents are from a tribal area that is Dharani, district Amravati. In a tribal area, most of the labourers used to work on a daily wages basis and being uneducated are not aware of their rights and consequences of the legal proceedings. Therefore, considering the fact that deceased was of the tribal area. It is not expected that the legal representative of such a lady to establish the strict facts and the law in the matter. Those persons who are belongs to Tribal area and having no source of earning than doing the labour work needs to be considered sympathetically in view of the object and statement of the Workmen’s Compensation Act. Hence, considering these aspects, the respondents are entitled for the compensation in the matter. In the circumstances, I proceed to pass the following order.

No order as to the costs.