AI Structured Summary
Not yet generated for this judgment
Judgment
K.P. Sivasubramaniam, J.—This appeal is directed against the order of the Deputy Commissioner of Workmen''s Compensation, Madras,
in W.C. No. 43 of 1990. The Management-opposite party is the appellant in the above appeal.
This is one of typical instances of how the beneficial and Welfare legislations are sought to be exploited with total lack of even the basic
evidence to prove the employment of the claimant with the opposite party-management and at the hands of some of the statutory authorities who
have no regard for the fundamentals of a proper judicial proceeding. Such instances only lend credence to the allegation of learned counsel for the
appellant that there is an organised racket which appears to be exploiting the beneficial legislations in a high-handed manner.
The respondents herein filed the claim petition before the Deputy Commissioner stating that Mani aged about 35 years, a workman employed
by the opposite party received personal injury by accident arising out of and in the course of employment resulting in his death on May 24, 1989.
The cause of injury was that on May 24, 1989 when the deceased was working at India Metal Trading Company, Southern Metals and Alloys,
No. 4, Madhavaram High Road, Madras-11, suffered from chest pain after handling heavy metals and subsequently died on the way to hospital
due to heart attack. It was further stated that the monthly wages of the deceased was Rs. 1,000/-and the deceased was over the age of 35 years
at the time of death. Subsequently, by way of amendment, the description of the opposite party was amended and two different establishments
were shown as opposite parties namely, (1) India Metal Trading company represented by Sundaram and (ii) Southern Metals and Alloys
represented by Kanagasabapathy.
In the counter-statement filed on behalf of the opposite parties, it was contended that the deceased Mani was not employed by them and there
was no master and servant relationship between them. Therefore, the application itself was not maintainable and was liable to be dismissed. It was
further contended that there was no basis for the allegation that the deceased had received personal injury by accident arising out of and in the
course of employment on May 24, 1989. The further allegation that the deceased suffered chest pain after handling heavy metals and that on the
way to hospital, he died due to heart attack was also denied. No such event had taken place. Even assuming that the deceased was employed with
the opposite party, it cannot be said that the death had arisen in the course of employment. The further statement as regards the quantum of wages
and compensation as claimed were also denied.
On a consideration of the said contentions and evidence, the Deputy Commissioner held that the claimants had established that the deceased
was employed with the opposite party and the death was also in the course of employment. A sum of Rs. 78,824/- was fixed as compensation.
Hence the present appeal.
Mr. V. Shanmugam, learned counsel for the appellant submits the following points for consideration:
(i) There is absolutely no evidence to establish that the deceased was employed with the appellant. In spite of the appellant having filed Attendance
Registers of both the concerns, the same have been rejected without any basis.
(ii) P.W.2, Damodharan, who was examined to prove the employment did not submit himself for full cross-examination in spite of adjournments.
Notwithstanding the failure of the witness to subject himself to cross-examination the Deputy Commissioner had chosen to accept his one sided
evidence.
(iii) Arumugham who is alleged to be an employee and who is said to have given the First Information Report did not depose in spite of several
subpoenas having been taken, summoning him as a witness for the claimant.
For all these allegations, the only answer by learned counsel for the respondents is that the other employees of both the concerns are not
prepared to depose because of the threat of adverse consequences in antagonising the management and that the finding as to whether the deceased
was employed with the respondent or not, was a pure question of fact which cannot be interfered with the appeal u/s 30 of the Workmen''s
Compensation Act.
I have considered the mutual submissions along with the evidence and the findings of the Deputy Commissioner. Without any hesitation I may
state that there are several circumstances which render the finding of the Deputy Commissioner as totally perverse and without any evidence.
(i) In spite of the claim that the deceased was employed with the appellant for more than 20 years, not a scrap of evidence had been filed by the
claimants. In fact, even the name of the opposite party was not correctly given in the Original Petition and had to be later amended and the
claimants are not sure as to whether the deceased was employed with India Metal Trading Company or Southern Metal Alloys. In fact, the
partners representing both the concerns are different.
(ii) Attendance Registers of both the concerns had been filed containing signatures of the employees on Revenue Stamps for a considerable period
and the registers do not disclose the name of the deceased as one of the employees. The reason for rejection of Attendance Registers is totally
unsustainable. The only ground on which the Deputy Commissioner rejected the Attendance Registers is that they do not contain counter
endorsement by any of the statutory authorities. There is no statutory requirement or obligation to obtain any endorsement by statutory authorities,
if the number of employees is less than the minimum required strength. As stated earlier the register contains signatures of other employees on
Revenue Stamps on different earlier dates and the reason for rejecting the same is not sustainable.
(iii) P.W.2 who claims to be a co-employee did not present himself for completing the cross-examination. But the Deputy Commissioner in utter
disregard of the basic principles of Rules of evidence or fairness and in violation of accepted principles and natural justice had chosen to accept
and rely upon his evidence.
Instead of quoting several authorities for the first principles relating to cross-examination the following extract from
RATANLAL & DHIRAJLAL''S LAW OF EVIDENCE, 17th Edition, Page 332, would be sufficient and appropriate.
Cross-examination: The testimony of a witness is not legal evidence unless it is subject to cross-examination; and where no opportunity has been
given to the appellant''s counsel to test the veracity of the principal prosecution witness or where owing to the refractory attitude of the witness the
Court is constrained to terminate all of a sudden and prematurely the cross-examination of the witness, the evidence of such a witness is not legal
testimony and cannot be the basis of a judicial pronouncement. No evidence affecting a party is admissible against that party unless the latter has
had an opportunity of testing its truthfulness by cross- examination. ""The exercise of this right (cross-examination) is justly regarded as one of the
most efficacious tests which the law has devised for the discovery of truth.......
Therefore, in the absence of cross-examination, there is no evidence at all and the evidence of P.W.2 ought to have been completely rejected.
Acceptance of such evidence is perverse.
(iv) One Arumugham, who claims to be one of the employees and who is alleged to have given the First Information Report and signed in the
inquest report also does not turn up to give evidence in spite of several subpoenas having been taken by the claimants to examine him as their
witness. The appellant denied that Arumugham is employed by them.
(v) The said Arumugham and one Joga Rao who is admittedly an employee of the appellant, are alleged to have signed the inquest proceedings
and are not examined as witnesses. The Deputy Commissioner had placed much reliance on the mentioning of the name of Joga Rao in the inquest
report. The comparison of his signature in the inquest report and the Attendance Register reveals total inconsistency and variation. In the
Attendance Register Joga Rao had signed consistently in Telugu while in the Inquest report, his signature is shown in Tamil and that too in a very
hasty and suspicious manner. Arumugham''s father''s name is given as Munusamy in the inquest report whereas the name and initial of Arumugham
in the Attendance Register of India Metal Company is given as D. Arumugham. The name of another Arumugham in the Muster Roll of Southern
Metals is given as S.V. Arumugham. Such features lead to a strong doubt as to whether the name of the persons given and their signature in the
inquest report are really genuine.
(vi) Even though the claimant states that there are letters to show that the deceased was employed with the management, neither any such letter nor
any other document had been filed in, the evidence; in spite of the claim that the deceased was employed with the appellant for more than 20
years.
The above are only some of the features in the evidence which exhibit the total absence of evidence to support the finding that the deceased was
employed with the appellant and the glaring perversity in the approach of the Deputy Commissioner which cannot at all be sustained. As could be
expected, the learned counsel for the respondent has no other answer except to say that none of the employees are prepared to come forward to
state that the deceased was employed with the appellant. And the only other alternative argument is that u/s 30 of the Workmen''s Compensation
Act, this Court shall not interfere if no substantial question of law was involved and that the evidence under the beneficial legislations ought to be
viewed liberally and not strictly.
Learned counsel for the respondent has relied on the judgment of a Division Bench of this Court in The Managing Director, Dunlop India Ltd.
v. S.G. Krishnakumari, (1992) 1 MLW 624, and the judgment of C.V. GOVARDHAN, J. in The Managing Director, Thiruvalluvar Transport
Corporation, 1997 TLNJ 122.
Both the abovementioned judgments deal with the proof of the cause of death. In those cases, the question of proving the basic fact of
employment of the claimant with the opposite party did not arise. In the judgment reported in Managing Director, Dunlop India Ltd. (supra) the
fact of employment of the deceased with the management was not subject to any doubt and the evidence was only wanting as regards cause of
death and as to whether the death was direct result of any negligence on the part of the deceased. In the judgment reported in Managing Director,
Thiruvalluvar Transport Corporation, the cause of death was heart attack and the question arose as to whether the death was the direct result of
his employment. In such circumstances, learned Judges held that the provisions of the Act should be construed in a broad and liberal manner and
that the evidence was sufficient to establish that the death arose out of and in the course of employment. Therefore, both the: above judgments
have no relevance to the facts of the present case. The principle that beneficial legislation should be construed in a liberal manner does not mean
that a petition should be blindly allowed without even the basic proof of the fundamental fact of employment and as against the Attendance Register
and oral evidence produced by the appellant.
Reference was made to another judgment of C.V. gOVARDHAN, J. in Management, Boys Town Society Vs. V. Palani and Another, . There
also the learned Judge held that the finding as to whether the employee was a workman or not was a question of fact and any appeal u/s 30 of the
Workmen''s Compensation Act was not maintainable. Considering the facts and circumstances of the particular case, R.W. 1, the witness for the
management himself had admitted that the deceased died while setting right the light in the cattle shed and he was electrocuted. Therefore, in the
face of the said admission and the Deputy Commissioner having given the finding that the deceased was a workman under the opposite party, such
a finding was held to be unimpeachable in an appeal u/s 30 of the said Act. There is no such admission by the management in the present case.
I am unable to accept the proposition that Section 30 of the Act disentitles the High Court to go into the evidence, even if the conclusions are
found to be totally perverse and not at all based on any evidence, much less legal evidence. It is settled proposition of law that a finding of fact
based on no evidence and also vitiated by perversity in appreciation of evidence, would certainly amount to a substantial question of law. It would
be an extreme and unsustainable proposition to contend that even basic rules of evidence have no place in proceedings under the Workmen''s
Compensation Act. In fact, equal number of appeals are filed on the side of the workers also and I have myself had occasions to allow appeals in
favour of the workmen against the findings of the Deputy Commissioner holding that they were not employed by the opposite party. The working
class would be equally affected by such a proposition.
The High Court cannot close its eyes to illegal and perverse orders when the authority below seeks to rely on the only available but illegal
evidence namely, the evidence of a witness who refuses to be cross-examined.
Learned counsel for the appellant, in this context, had rightly relied on the following judgments:
(i) In Hyderabad Steel Tubes Pvt. Ltd. v. Aktar Begum, 1996 III LLJ (Suppl) 964, the learned Judge of the Andhra Pradesh High Court had held
that the question as to whether the evidence and conclusions reached by the Deputy Commissioner was reasonable or not had thrown open a
substantial question of law. The learned Judge held as follows in 1996 III LLJ (Suppl) 964:
The only reasonable conclusion that can be drawn from the evidence on record is that the death of Muneeruddin was the result of all from the
crane in the course of employment. No other conclusion is legally possible in the particular circumstances. The Commissioner''s decision, in our
considered, view, was not only not correct, but was so unreasonable that no reasonable authority could ever have come to it."" See Associated
Provincial Picture House Ltd. v. Wednesbury Corporation, 1948 (1) KB 223.
A Division Bench of the Patna High Court in Sumitra Devi v. Executive Engineer, Udar Asthan Irrigation Division, Jahanabad, Gaya, 1997 III
LLJ(Suppl) 1058, held as follows after examining the scope of Section 30 of the Workmen''s Compensation Act:
The meaning and import of the words substantial question of law has been the subject matter of discussion and decision by the various High
Courts and the Apex Court. So far as the question of general public importance and the questions where no final decision has been given by the
High Courts or finally settled by the Supreme Court are concerned, the same have been held to be the questions involving substantial questions of
law. However, such questions will arise only in far and few cases and if Section 30 is interpreted to include only those two situations, in that case,
Section 30 will not serve its purpose especially when Section 30 provides for the first appeal against the judgment of the Commissioner. In my
view, this Section has to be given a liberal meaning. If a question of law arising between the parties is of arguable nature, then that will be a good
ground of appeal u/s 30 of the Act. Apart from the aforesaid ground if the Commissioner while arriving at the finding of fact has overlooked the
material evidence or has applied the law wrongly or his finding is based on no evidence or is based on only conjecture and surmise or has over
looked the statutory provision or misconstrued the same, then such question for the purpose of Section 30 will be said to be the substantial
question of law. However, I would like to add that insufficiency of material in arriving at a finding or reappreciation of evidence on the ground that
a different view is possible on the same set of facts cannot be said to be a substantial question of law. For the purpose of Section 30 of the Act, if
the question of law is fairly arguable or where there is a room for difference of opinion with regard to the question involved, then the question will
be treated as substantial question of law. Thus, in my considered view, it is open to the appellant to challenge the finding of facts duly arrived at by
the lower Court on any of the grounds mentioned above.
Therefore, in the present case, as I am satisfied that the order of the Deputy Commissioner is vitiated by perversity and no evidence, I am
inclined to hold that the order of the Deputy Commissioner is liable to be set aside. However, I am inclined to feel that the claimants may be given
one more opportunity to substantiate their case by letting in proper evidence if any, by examining the appropriate witness and also to allow them to
produce P. W. 2 and to subject himself to complete the cross-examination if his evidence is to be relied upon and also to permit them to file any
documentary evidence available with them to prove the employment of the deceased with the management. The Deputy Commissioner will give
opportunity to both sides to adduce such additional evidence as may be available with both parties. The Deputy Commissioner shall also decide
the merits of the question as to whether the deceased was employed with the appellant or not as well as the issue as to whether the cause of death
had any nexus with the course of the employment or not and come to an independent conclusion without being influenced by any of the
observations contained in this judgment within a period of two months from the date of receipt of this order.
In the result, the above appeal is allowed and remanded to the Deputy Commissioner for Workmen''s Compensation, Madras, in the above
terms. No costs.