Western Coalfields Ltd. and Others vs Bhagwan and Others

U.C. Maheshwari, J.

This appeal is directed by the appellants u/s 30 of the Workmen''s Compensation Act, 1923, for short, The Act" being aggrieved by the order dated 26.08.2006 passed by the Workmen''s Compensation Commissioner, Labour Court, Chhindwara awarding the claim of the respondents No. 1 and 2 against the appellants and respondent No. 3 jointly and severally for the sum of Rs. 204.741/- along with interest @ 6% P.a.

The facts giving rise to this appeal in short are that the respondents 1 and 2 - filed the claim contending that their son Ranjit aged seventeen years was working under the respondent No. 3, the registered Contractor of the appellants supplying the labour as per their requirements. On dated 12.06.2002 said Ranjit was sent to the Vishnupuri mine No. 2 by respondent No. 3 as per requirements of the appellants where under the employment of the appellants and the respondent No. 3 he was shorting the coal stones. While discharging such duty he was caught hold by the conveyor belt, resultantly, he died on the spot. After the accident his dead body was seized from such mine and sent to the hospital where its postmortem was carried out. On receiving the information at Police outpost Rawanwadha the same was recorded in the Rojnamchasanha on which a criminal offence was registered against the appellants and the respondent No. 3. The deceased was earning Rs. 2400 per month. On account of his untimely death the respondents No. 1 and 2 suffered the mental agony and also deprived from the dependency. In spite giving the notice of such accident the compensation has not been paid by the appellants and the respondent No. 3. With these averments the claim was preferred for Rs. 8 lacs along with the interest.

In reply of the respondent No. 3 all the averments made in the claim petition are denied. In addition it is stated that the deceased was involved in the theft activities and with intention to commit the theft he entered in such prohibited area where he was caught hold by the conveyor belt and consequently died. The deceased was never employed in such mine for the alleged work. In such premises the prayer for dismissal of the claim is made.

In reply of the appellants the averments of the claim petitions are denied. The deceased was neither employed by them nor the alleged contract was given to the respondent No. 3. The claim is preferred on the false pretext. In addition, it is stated that the deceased was never deployed by them in such mine. In the existing law the minor person could not be engaged for such work. Thus, there was no question to engage the deceased for such work. The entrance of the outsiders in mining areas are strictly prohibited whereas the deceased entered as trespasser in such area. The appellants were not present on the spot, the accident was known to them after it occurred. Thus, they are not liable to indemnify any compensation to the claimants. With these averments the prayer for dismissal of the claim is made.

In view of the pleadings of the parties as many as five issues were framed by the labour court on which the evidence was recorded. On appreciation the aforesaid claim was allowed for the above mentioned sum against the appellants and the respondent No. 3 by holding their joint and several liability to indemnify the same. The same is under challenge in this appeal.

Earlier vide order dated 16.03.2007 this appeal was admitted on the following substantial questions of law which are to be answered by this court:

(i) Whether the deceased having age below 18 years could be engaged as a mine laborer in terms of Indian Mines Act 1952 ?

(ii) Whether the claimants have proved that there was any privity of contract of employer and employee between the deceased and the appellants ?

Shri P.S. Nair, learned Sr. Adv. assisted by Smt. Tulika Gulati, counsel for the appellants argued that in view of the provision of Section 40 of the Mines Act 1952 the person below eighteen years of the age could not be allowed or employed by them to work in such mine for shorting the coal near the conveyor belt. Such provision was never violated by the appellants in any manner. By elaborating his arguments he said that the alleged contract to supply the employees was neither given to the respondent No. 3 nor the deceased was engaged for the alleged work in their mine. In this premises he said that in the lack of evidence showing any privity of contract between the appellants, respondent No. 3 and the deceased, the approach of the labour court holding the deceased was working in their mine under employment is not sustainable and prayed to set aside the impugned order by answering the aforesaid question in their favour by allowing this appeal.

Responding the aforesaid arguments Shri Anil Lala learned appearing counsel for the respondents No. 1 and 2 by justifying the impugned order said that the same is based on proper appreciation of the evidence and is in conformity with law. Section 40 of the aforesaid Mines Act gives the mandate to the employer like the appellants not to engage the persons below the age of eighteen years for the alleged work, but the same does not prohibit the claimants from their rights to get the compensation it their minor son was employed by the appellants in such mine and died while discharging the duty under such employment. Thus, by taking advantage of said provision the appellants can not escape from their liability. He further said that in the regular course of the business the appellants company keeps the muster register and payment scroll of the employees working in their mine but in order to prove their defence the same is neither produced nor proved on record. The same are withheld by them. It gives the sufficient circumstance to draw an inference against the appellants that the deceased was working under their employment as labour and died while discharging the duty in such mine. Therefore, in any case the appellants, the principle employer for whom the deceased was working and respondent No. 3 - the Contractor are liable to indemnify the claim. In this premises the impugned order does not require any interference at this stage and prayed for dismissal of the appeal.

Having heard, after examining the record and perusing the impugned order, I am of the considered view that the subordinate labour court has not committed any error in passing the impugned order.

Coming to the first question, as per deposition of the parents of the deceased the respondents No. 1 and 2 namely Bhawan (PW-1), the father and Smt. Balabai (PW-3), the mother, the deceased was seventeen years of the age. The same is mentioned by the duty doctor who carried out the postmortem of the corpus of Ranjit at CHC, Parasiya. In such premises it is held that the deceased was seventeen years of the age.

So far provision of Section 40 of the Mine Act 1952 is concerned, I agree with the appellant''s counsel that the person below the age of 18 years can not be employed for the mine work but such Section gives mandate to the employer not to engage such person for mining work. But it does not deprive the person like the claimants to claim the compensation, if their minor son was employed and permitted to work by the appellants in such mining and died while discharging the duties. In such circumstance merely on this ground that the law does not permit the appellants to engage the minor persons for such work, this inference could not be drawn that the deceased was not working under the employment of the appellants and the respondent No. 3. Therefore, argument of the appellants'' counsel in this regard is hereby failed.

In order to examine the question whether the deceased was working and discharging the duties under the employment of the appellants are concerned, I would like to examine the evidence led by the parties. Vikram son of Baldeo (PW-3) the eye witness of the incident while recording his deposition, categorically said that on the date of the accident he was working in the same mine with the deceased Ranjit. While shorting the coal stones Ranjit was caught hold by the conveyor belt, sustained the injuries and succumbed to it on the spot. On going through his cross-examination, I have not found any substance destroying the aforesaid version stated in chief. Therefore this witness appears to be reliable and gives circumstance to draw an inference that the deceased Ranjit was discharging the duties under the employment of the appellants. Such evidence has not been rebutted on behalf of the appellants or respondent No. 3 even after examining the respondent No. 3 Mohd. Jaaweer Khan (DW-1) and the official of the appellants T. Arun (NAW-1).

Such evidence would have been rebutted by the appellants only by producing their muster register and the payment scroll to show that the deceased was not employed by them on such date. On producing the same, it would have been ascertained from such record whether the deceased was working in such mining on the date of the accident. The non-production and withholding such record gives sufficient circumstance to draw adverse inference against the appellants holding that the deceased was duly employed by the appellants. Such question is answered by the Apex Court in the matter of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, in which it was held as under:

Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to reply upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to reply upon the abstract doctrine of onus of proof

Therefore, in view of the aforesaid the first question is answered accordingly and it is held that the deceased was below eighteen years of the age but was employed by the appellants and the respondent No. 3 for the aforesaid work.

Coming to the second question regarding privity of the contract between the appellants respondent No. 3 and deceased are concerned, as per the case of the claimants the deceased was working with the respondent No. 3 - the contractor and as per requirements of the appellants he was sent to the aforesaid mine for the alleged work by the respondent No. 3 where while discharging the duties under such employment in the mine of the appellants he died due to the alleged incident. It is undisputed fact on record that his dead body was recovered from the conveyor belt of the mine. It shows that the deceased was carrying out the work of the appellants under their employment. Accordingly, the appellants were the principle employer of the deceased. Mere on the ground that the deceased was initially employed by the respondent No. 3 and was sent to such mine, it could not be inferred that the deceased was not under the employment of the appellants.

For the sake of arguments, if it is deemed that the deceased was not directly employed by the appellants but through respondent No. 3 even then by virtue of Section 12 (1) of the Act the appellants being principle employer for whom the deceased was working can not escape from their liability to indemnify the claim of respondents No. 1 and 2, although they may recover the same from the respondent No. 3 by virtue of Section 12 (2) of the Act if their contract permits. Such provision is read as under:

Contracting

(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 contract 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, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principle, were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately 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 workman 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 the workman 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.

On earlier occasion this question is answered by this Court in the matter of Surajbai Vs. Cement Corporation of India Ltd and another reported in 1991 (1) T.A.C. 140 in which it was held as under:

It is now no longer in dispute that the respondent No. 2 was engaged as a contractor by the respondent No. 1 for undertaking construction work. These facts would sufficiently establish that respondent No. 1 was the ''principal employer'' in relation to the deceased Amardas and the respondent No. 2 were his immediate employers. Section 12 of this Act would make the principal liable to pay compensation under the Act in case it is established that the contractor was engaged by him in any part of the work which is ordinarily part of the trade or business of the principal. Since the respondent No. 2 was engaged by the respondent No. 1 for the purposes of his trade or business to execute the work with his business, the requirement of this section would be more than satisfied. The submission of the learned counsel for respondent No. 2 that they were not engaged in the course of or for the trade or business of respondent No. 1 ignores the broad language used in this provision. It is not necessary that the contractor should be employed in the course of principal employer''s trade or business, and may be engaged for the purposes of his trade or business. The provision would, therefore, make the deceased an "employee" of respondent No. 1, even though he was not directly employed by them.

Such question again answered by this court High Court M.P. in the matter of Administrator of the City Indore Nagar Palika Nigam Vs. Ram Singh, S/o Saula Bhil and another in which was held as under:

7............................................................................

The words used in section 12(1) of the Workmen''s Compensation Act are not the work which is ordinarily part of trade and business of the principal but the emphasis is that the principal shall be held liable if the work which was carried on is ordinarily part of the trade or business of the principal. As such if the work which was carried on is ordinarily a part of the trade of the principle or business of the principal then in either case the principal shall be liable

In a Gujrat High Court judgment in Bai Mani and Others Vs. Executive Engineer, Irrigation Project, Division Six, , the Gujrat High Court has held that construction of a canal is ordinarily a part of the business of this State and, therefore, the State was held liable to pay the compensation to the labourer of the contractor as principal. In a resent judgment of the Bombay High Court in Sarjerao Unkar Jadhav Vs. Gurindar Singh and another, , it was held that when the Electricity Board gave a contract for painting the electric poles and the workman employed by the contractor was injured while painting poles, it was ordinarily a part of business of the principal, that is the electricity Board and, therefore, the principal was held liable for compensation. Therefore, in view of the fact that the activity of construction of a badminton hall of the Municipal Corporation was ordinarily a part of the business of the Corporation, the Corporation has rightly been held liable jointly and severally with the contractor to pay the compensation and I see no ground for interfering with the finding of the lower Court on this point.............

Such question was also answered by the High Court of Orissa in the matter of Managing Director, Orissa State Warehousing Corporation, Bhubaneswar Vs. Smt. Gitarani Seal and another reported in 1991 LAB. I.C. 2476 in which was held as under:

The other aspect is the employment with the contractor in terms of Section 12. Any person, which obviously includes a Corporation, who engages contractor in the course or for the purposes of his trade or business contracts with any other person for the execution by or under the contractor of the whole or any part of such work incurs the liability in respect of the workman vis-a-vis the contractor. The liability in such an event passes on to the principal employer. But law gives protection to the principal employer in terms of sub section (2) of the Section 12. Where the principal employer is liable to pay compensation he is entitled to be indemnified by the contractor. In view of the conclusion by the Commissioner that the deceased was a workman under the present respondent No. 2 and the appellant was the principal employer, I do not find any scope for taking a different view in the matter. The appeal, therefore, deserves dismissal which I direct. It is, however, made clear that the appellant is entitled to be indemnified by respondent No. 2 in terms of sub section (2) of Section 2 of the Act. No costs".

Although on behalf of the appellants a decision of the Division Bench of the Kerala High Court in the matter of Easow Easow Vs. Rajan Kallikppara Thekkeveetil and Another reported in 1999 I LLJ 53 has been cited. Such case was decided on appreciation of the evidence in following terms :

As seen above, the oral evidence does not give any clear picture as to the relationship between the claimants and the respondents. It is not possible to find as employer employee relationship between the claimants and the appellant on the basis of the evidence

In the aforesaid it was held that in the available circumstance it is not possible to spell out about employer and employee relationship between the claimants and the appellants and in such premises the concerned appellant was exonerated from the liability. But in the case at hand the relationship between the deceased and appellants as employee and employers have been found to be proved, hence such citation is not helping to the appellants.

In view of the aforesaid it is held that the deceased was working in the mine of the appellants under their employment and they being the principle employer along with respondent No. 3 - Contractor are liable to indemnify the claim of the respondents No. 1 and 2 jointly an severally. Accordingly, aforesaid both the substantial questions of law are answered against the appellants. In such premises, I have not found any error, illegality, irregularity or perversity in the impugned order of the labour court, hence the same does not require any interference at this stage.

Therefore, by affirming the impugned order this appeal is hereby dismissed. There shall be no order as to the costs.