Partly allowed

The Executive Director, Vitthalrao Shinde Co-Op. Sugar Factor Ltd. and Anr. v. Mandabai Ambadas Sable and Ors.

Bombay HC14 Aug 2012FA/930/2012

Case brief

AI extract

What is this about?

This judgment addresses an appeal against a Workmen's Compensation Award. While upholding the compensation amount and interest due to sufficient evidence of workman's earnings, the High Court set aside the penalty clause. The Court found the Commissioner failed to apply mind and give reasons for the penalty, remitting the matter for a fresh decision in accordance with natural justice principles re

What did the court decide?

The penalty portion of the award is set aside and the matter is remitted to the Commissioner Workmen's Compensation to decide the liability of penalty; the award regarding compensation and interest is

The Executive Director, Vitthalrao Shinde Co-Op… — Writ and Judicial Review | Bombay HC (2012)

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1 fa 930.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 930 OF 2012

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The Executive Director, Vitthalrao Shinde Co-op. Sugar Factory Ltd., Gangamai Nagar, Pimpalner, Tq. Madha, Dist. Solapur.

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The Chairman, Vitthalrao Shinde Co-op. Sugar Factory Ltd., Gangamai Nagar, Pimpalner, Tq. Madha, Dist. Solapur. .. Appellants Versus

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Mandabai W/o Ambadas Sable, Age : 31 Years, Occu. : Agril.,

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Jalindar S/o Ambadas Sable, Age : 11 Years, Occu. : Education,

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Varsha D/o Ambadas Sable, Age : 9 Years, Occu. : Education,

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Dipali D/o Ambadas Sable, Age : 7 Years, Occu. : Education, Resp. Nos. 2 to 4 are minor U/G of their mother i. e. respondent No. 1.

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2 fa 930.12

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Govind S/o Maroti Sable, Age : Major, Occu. : Labour,

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Ushabai W/o Govind Sable, Age : Major, Occu. : Labour, All R/o Katon, Tq. Patoda, Dist. Beed.

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Somnath S/o Vithal Ghoepode, Age : Major, Occu. : Household, R/o Katon, Tq. Patoda, Dist. Beed.

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The Manager, New India Insurance Company, Division Office, Adalat Road, Aurangabad. .. Respondents

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Shri Anil M. Gaikwad, Advocate for Appellants. Shri S. G. Chapalgaonkar, Advocate for Respondent Nos. 1 to 4, 6 Shri Mukul Kulkarni, Advocate for the Respondent No. 8.

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CORAM : S. V. GANGAPURWALA, J. DATE : 14TH AUGUST, 2012.

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ORAL JUDGMENT :

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. The appellants and respondent Nos. 1 to 6 are the contesting parties. Shri Kulkarni, the learned counsel appears for the respondent No. 8. With the consent of all the parties the matter is taken up for final hearing.

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3 fa 930.12

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Shri Gaikwad, the learned counsel for appellants submits that the deceased was not a direct employee of the present appellants, but was employed by the respondent No. 7. In view of that the appellants not being the principal employer are not liable for alleged amount of compensation. The learned counsel further contends that the Commissioner Workmen's Compensation has considered the salary at Rs. 4,000/- per month. The same was without any material on record. There is nothing on record to show that the deceased was earning Rs. 4,000/- per month by transportation of sugar cane. Merely, on the basis of presumption the Commissioner Workmen's Compensation has construed the income of the deceased at the rate of Rs. 4,000/- per month. The same is erroneous.

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According to the learned counsel the appellants were never issued with the show cause notice in respect of the penalty. As no show cause notice was issued regarding the liability of penalty, the Commissioner Workmen's Compensation did not have the jurisdiction to award the penalty against the present appellants. Sec. 4-A(3) of the Workmen's Compensation Act (hereinafter referred as to the "Said Act" for the sake of brevity) has not been considered in its proper perspective. The learned counsel relies on the judgment of learned Single Judge of this

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4 fa 930.12

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Court in a case of Udhav Rangnathrao Pawar Vs. Sheshrao Ramji Jogdand and anr. reported in 2009(5) Bom. C. R. 523 .

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Shri Chapalgaonkar, the learned counsel submits that the Commissioner had framed necessary issue with regard to the penalty also. In view of that, it cannot be said that the appellant was not put to notice. The Court has rightly awarded penalty. The learned counsel further contends that even as per Sec. 12 of the Said Act, the principal employer is liable to pay the compensation amount. The appellants cannot dispute this position. The learned counsel submits that it is matter of record and the weight slips of the sugar cane have been produced which shows that the deceased was transporting 2 to 3 metric ton of sugar cane per day. In view of that the Commissioner has properly construed the evidence on record.

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With the assistance of learned counsel I have gone through the judgment and award. Sec. 12 of the Said Act reads as under :

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Workmen's Compensation Act

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" 12 . Contracting

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(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for

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5 fa 930.12

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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 principal 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.

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(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 a pay compensation or to indemnify a principal under this section be 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.

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

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6 fa 930.12

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(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. "

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The Commissioner has observed that the deceased was transporting 2 to 3 metric ton of sugar cane in his bullock-cart every day and has considered that the earning as Rs. 4,000/- per month same appears to be just and proper. The Commissioner on the basis of evidence has arrived at plausible conclusion. The said conclusion cannot be said to be perverse. In view of that, there is no reason to interfere with the award passed by the Commissioner in respect of compensation amount.

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The interest would also follow the cause. In view of that, there is also no ground to interfere with the grant of interest, though in normal course the interest should have been awarded at the rate of 12%. However, the same seems to have been accepted and not assailed. As such, I am not inclined to disturb the same also.

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So far as, the penalty is concerned, it does not appear that notice was given but an issue was framed to that effect. However,

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7 fa 930.12

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perusing the judgment delivered by the Commissioner, it does not appear that the Commissioner has applied his mind while making appellants liable to pay penalty. In para 16 of the said judgment, the Commissioner in two lines only has dealt with the aspect of penalty and has imposed liability of penalty upon the appellants. The said observations of the Commissioner reads as under :

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"These respondent failed to provide the compensation amount within statutory period after the accident, they are also liable to pay penalty of 50% of the compensation amount Rs. 1,94,640/-".

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In view of the above, it would be clear that there is no application of mind on the part of Commissioner while imposing penalty. No reasons are also given.

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In view of that, the award to the extent of penalty is set aside and the matter is remitted to the Commissioner Workmen's Compensation to the extent of deciding the liability of penalty.

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In the light of the fact that, the matter is remitted only for the purpose of deciding the issue of penalty, the condition of issuing show cause notice shall be deemed to have been waived

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8 fa 930.12

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as the parties are already put to notice that the matter is remitted only in respect of issue of penalty.

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The parties shall appear before the concerned Commissioner, Workmen's Compensation on 03rd September, 2012. In view of the fact that, all the parties except the respondent No. 7 are present before the Court, the Commissioner need not issue any separate notice to the parties concerned. The Commissioner may issue notice to the present respondent No. 7 by R.P.A.D. and by regular service. The Commissioner may afford opportunity to the parties to adduce evidence if they choose to in respect of question of penalty. The Commissioner shall decide the said proceedings expeditiously and preferably within a period of four (4) months from the date of appearance. The issue with regard to payment of compensation and interest has attained finality. The claimants shall be entitled to withdraw the amount of compensation and interest, as the matter is remitted back only on the question of penalty.

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Sd/[ S. V. GANGAPURWALA, J. ]

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bsb/Aug. 12

The Executive Director, Vitthalrao Shinde Co-Op. Sugar Factor Ltd. and Anr. v. Mandabai Ambadas Sable and Ors.

Case brief

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What did the court decide?

The Executive Director, Vitthalrao Shinde Co-Op. Sugar Factor Ltd. and Anr. v. Mandabai Ambadas Sable and Ors.

Case brief

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What did the court decide?

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