Jharkhand State Electricity Board Now Jharkhand Bijli Vitran Nigam Ltd. through MD Shabir Ansari Vs Balki Devi

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(L) No. 3233 of 2022

Jharkhand State Electricity Board (now Jharkhand Bijli Vitran Nigam Ltd), through Sub Divisional Officer cum Assistant Electrical Engineer, Electric Supply, Sub.Division, Kanke, Ranchi, namely Md. Shabir Ansari, aged about 46 years, S/o Md. Shamsuddin Ansari having its office at Kanke, P.O. & P.S.. Kanke, District - Ranchi.

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Residential Address: Petarwar, P.O. & P.S.. Petarwar, District. Bokaro, Jharkhand … … Petitioner

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Versus Balki Devi, wife of late Lakhan Kumar, resident of Village – Hochai, P.O. & P.S. – Ormanjhi District - Ranchi … … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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... For the Petitioner : Mr. Mrinal Kanti Roy, Advocate : Mr. Chandan Tiwari, Advocate For the Respondent :

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06 /13.03.2024 This writ petition has been filed for the following relief:

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“ 1. That the instant writ application has been directed against the Award dated 30.11.2021 passed by Dhruva Chandra Mishra, the learned Presiding Officer Labour Court, Ranchi in W.C. Case No. 01/2010 (Annexure.3), whereby and whereunder the learned Presiding Officer has been pleased to hold the deceased as skilled person who was entitled to monthly wage of Rs. 2979/- per month and ordered for payment of a sum of Rs. 7,31,362/- as compensation to claimant namely Balki Devi by depositing the said amount within 60 days.

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And/or

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For issuance of such other writ, order or direction as may appear just and proper for doing conscionable justice to the petitioner and in the interest of justice.”

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The learned counsel for the petitioner has submitted that the impugned order is perverse as the findings recorded by the learned Presiding Officer, Labour Court Ranchi that there was employer-employee relationship between the petitioner and the husband of the respondent (deceased) is based on no evidence. The learned counsel has submitted that no documentary evidence was produced to establish the relationship; there is neither any appointment letter nor any document to show any payment to the deceased person and, therefore, no liability could be fastened upon the petitioner for the purposes of payment of compensation under the Employee's Compensation Act, 1923. The learned counsel has also submitted that the case was earlier dismissed for default by the learned court vide Order dated 08.03.2016 and thereafter there has been no order for restoration of the case but ultimately the case proceeded and the impugned order has been

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passed. However, during the course of argument, it is not in dispute that the petitioner had participated in the proceedings and both the parties led evidences and contested the matter resulting in passing of the impugned order.

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2. The learned counsel has placed the impugned order and has submitted that the petitioner is primarily aggrieved by the adjudication relating to issue no.(iii).

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3. After hearing the learned counsel for the petitioner and going through the impugned award, this Court finds that the case of the applicant (respondent-wife of the deceased) in short has been recorded in paragraph no.3 of the impugned order. It was her case that her husband was employed by the present petitioner in their establishment, as Electrician-Helper, since last seven years before his death and on 29.04.2007 he received personal injury by the accident, arising out and in course of the employment, resulting in his death. On 29.04.2007 at about 3:00 pm, the opposite party no.2 before the learned court, namely, the Sub-Divisional Officer, Kanke Electric Sub-Division, Jharkhand State Electricity Board, Kanke [hereinafter referred to as SDO, Kanke] called her husband for repairing electric wires on electric pole at Chaurigram, Kanke; assuming that the electric line was off, he climbed on the pole and started repairing at the top but suddenly electricity flowed in the wire resulting in electric burn and he fell down on the ground and died on the spot. The occurrence of the above accident was reported to Kanke Police Station on 30.04.2007.

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It was the case of the wife of the deceased before the learned court that the monthly salary of her husband was Rs.2400/- and his age was about 42 years at the time of occurrence and demanded compensation from the writ petitioner but it was not paid and then she filed the case stating that her husband died in course of his employment under the writ petitioner as Electrician – Helper and prayed for compensation. The petitioner was the opposite party no.1 and SDO, Kanke was the opposite party no.2.

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4. The impugned order reveals that the notices were issued to the opposite parties by the learned court and in response to the notice initially the SDO, Kanke [the Sub-Divisional Officer, Kanke Electric

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Sub-Division, Jharkhand State Electricity Board, Kanke, who had instructed the deceased to climb up the electric pole for repair] had appeared and filed a show cause on 12.01.2011 and later on the opposite party no.1 appeared on 15.06.2011 and adopted the show cause filed by the SDO, Kanke. The case of SDO, Kanke, has been recorded in paragraph no. 4 of the impugned award which is quoted as

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under:

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“4. The case of the opposite parties, (as revealed from show cause filed by opposite party no.2) in short is, that the present case is false, frivolous, misconceived and is not maintainable under the Workmen Compensation Act. The applicant has got no locus standi to institute the above case against opposite parties. Further, case of the opposite parties is, the applicant’s husband Lakhan Kumhar/Lakhan Mahto was never employed under any capacity under Jharkhand State Electricity Board or erstwhile Bihar State Electricity Board. Since Lakhan Kumhar / Lakhan Mahto was not an employee/electrician under the opposite party, the alleged contention of sustaining burn injury in course of his employment, is entirely false and frivolous statement. The opposite parties are not responsible for any alleged accident, took place with Lakhan Kumhar/Lakhan Mahto. If there had been any such occurrence, the said Lakhan Mahto himself was responsible for the same. Further case of the opposite parties is that opposite party no.1 has got his full establishment for maintenance of electrical lines and thus under no stretch of imagination it can be inferred that applicant’s husband was called for repair of the line. It might be possible that applicant’s husband at this own risk and responsibility made attempt to climb on the electric pole for repair and thereby sustained injury on private hire for which opposite party cannot be held liable for his death. Further, it has been pleaded that for the unauthorized act of applicant’s husband, opposite party cannot be held responsible for the compensation, particularly in a situation, when they had not engaged the deceased for any job to be carried out at village Cahurigram. The opposite parties have denied payment of any salary to the deceased and further denied knowing the age and family background of the deceased. The opposite parties have denied contents of applicant’s petition and prayed to dismiss her claim.”

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5. The show cause was filed by SDO, Kanke and was adopted by the writ petitioner but SDO, Kanke, who was the authority under whose instructions the deceased climbed up the pole never deposed before the learned court. The specific case of the claimant was that the deceased was doing the work of repair on the electricity line under the instruction of SDO, Kanke.

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6. On the basis of pleadings of the parties, the following issues were framed:

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“(i) Whether the claim application is maintainable?

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(ii) Whether the deceased died due to an accident?

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(iii) Whether the applicant is entitled to any compensation, if so, from whom and to what extent?

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(iv) Whether the applicant is entitled for any relief/reliefs as

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sought for?

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7. The applicant-wife of the deceased examined altogether five witnesses including herself as CW-5 and as many as six documents were exhibited. The details of the persons who deposed as witness has been recorded in Paragraph No. 6, which is quoted as under:

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“6. To prove her case, the applicant has examined five witnesses as follows:-

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CW 1	Mahesh Kachhap	Electrician/Resident of Village Mahuatoli, P.S. Kanke, District Ranchi
CW 2	Ram Prasad Mahto	Private Electrician/ Resident of Village Hochi, P.S. Ormanjhi, District Ranchi
CW 3	Shankar Mahto	Private electrician/Resident of Village Hochi, P.S. Ormanjhi, District Ranchi
CW 4	Ram Tahal Mahto	Son of the deceased, Resident of Village Hochi, P.S. Ormanjhi, District Ranchi
CW 5	Balki Devi	Wife of the deceased, Resident of Village Hochi, P.S. Ormanjhi, District Ranchi

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Besides, applicant has filed following documents: -

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Exhibit 1 – Photocopy office order dated 20.10.2004 (marked

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with objection)

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Exhibit 2 – Photocopy death certificate.

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Exhibit 3 – Photocopy letter dated 08.06.2007 issued by Incharge

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Officer, Social Security/SDM Ranchi to C.O., Ormanjhi

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Exhibit 4 – Photocopy postmortem report.

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Exhibit 5 – Photocopy First Information Report.

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Exhibit 6 – Photocopy of newspaper.”

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8. So far as the opposite party no.1/petitioner is concerned, only one witness, namely Mohammad Sabir Ansari, Assistant Engineer, Electricity Supply Division, Kanke was examined as OPW-1 and no documentary evidence was adduced. The finding with regard to issue no.(ii), i.e. whether the deceased died due to an accident, has been recorded from para 9 to 11. The learned court recorded the finding after scrutinizing the materials on record in Para 9, 10, and 11 as follows:

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“9. On scrutiny of oral evidences, available on the case record, I find that claimant has examined herself and produced altogether four witnesses. They all have deposed that on 29.04.2007, Lakhan Mahto (deceased) was doing repair in electric wire upon direction of Assistant Engineer, Electricity Sri Ramnath Ram, by climbing on the pole, and in that course, he received injuries by electrocution and died on the spot. I find nothing in their cross-examination to discredit their testimonies on the point of manner, place and time of accident & injuries to the deceased. I further find that Opposite Party witness namely Md. Sabir

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Ansari has deposed that till May 2011, he was posted at Barhi Anchal and further deposed that he has not knowledge about happenings taken place before the year 2017. Thus, O.P. witness also, is not competent to dispute manner of accident & death to the deceased Lakhan Mahto. 10. Exhibit – 4, is the Postmortem Report of the dead body of the deceased Lakhan Mahto, which proves electric burn on the dead body. In Exhibit – 4, the Medical Officer has found antemortem injuries and electric burn and opined cause of death due to combined effect of electrocution and head injury. Therefore, in Exhibit – 4 also, there are sufficient corroboration of applicant’s case. Exhibit – 2 is the death certificate which confirms death of the deceased on 29.04.2007.

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11. In view of above discussions, there is no doubt that Lakhan Kumhar @ Lakhan Mahto, died on 29.04.2007 due to electrocution. Thus, death of deceased due to an accident is proved. Accordingly, this issue is decided affirmative and in favour of the claimant.”

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9. The learned counsel for the writ petitioner has not disputed the factum of the accident of the husband of the applicant and death arising out of the aforesaid accident even during the course of hearing and therefore, there is no argument in connection with issue no.(ii) as decided by the learned court.

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10. So far as issue no.(iii) is concerned, the learned court in paragraph no.12 has recorded that it was necessary to determine whether the deceased was workman/employed under opposite parties and injury to him was caused by accident arising out of and in course of his employment under opposite parties.

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11. The learned court recorded that admittedly no written appointment letter of the deceased was brought on record and there was no document showing payment of wages/salary etc. to the deceased by the then Jharkhand State Electricity Board, now the writ petitioner, and at the same time the learned court was of the view that for application of the provision of Workman Compensation Act no written appointment letter is required, if by other evidences, relationship of employer and workman between the deceased and opposite parties are established and proved.

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12. Admittedly, the incident had taken place on 29.04.2007. The learned court took into consideration the definition of section 2(1)(n) of Workman Compensation Act which stood prior to amendment act no.45 of 2009 which defines “workman” and was of the view that there was no requirement of permanent employment and written appointment letter to prove that the deceased was a workman and was of the view that a mere contract of employment, whether expressed or

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implied, oral or writing, employed in the work in any capacity shown in Schedule II of the Act is sufficient.

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13. The learned court further referred to Schedule II and has observed that list of persons who are subject to provision of Section 2(1)(n) are included in the definition of workman and the list included a person employed in setting up, maintaining, repairing or taking down any telegraph or telephone line or post or any overhead electric line or cable or post or standard of fitting and fixtures for the same.

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14. The learned court considered the definition of “employer” under section 2(e) and also took into consideration the term ‘managing agent’ as defined under section 2 (f).

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15. The learned court also recorded and was of the view that if the opposite party no.2 employed any person for managing trade and business of opposite party no.1, then opposite party no.2 shall be the employer under the definition of the aforesaid Act. The learned court recorded findings with regard to the provision of law and employeremployee relationship from paragraphs 14 to 19 and thereafter discussed all the witnesses in various sub paragraphs of paragraph no.20 and 21 and recorded its findings in various sub paragraphs of paragraph 22 and ultimate finding with regard to issue no.(iii) in paragraph 23 favouring the applicant.

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16. The learned court considered the examination and crossexamination of the witnesses and recorded as follows: –

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With regards to the evidence of C.W-1 after discussing his examination and cross examination it has been recorded that-

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“Therefore, from the evidence of this witness, it is established that Junior Engineer and Assistant Engineer of Electricity Board kanke were employing private electrician also for the trade and business of the board.” ………………Therefore, PW 1 has proved employment of the deceased in the department for doing work of electrician and further proved that at the time of accident the deceased was working under the direction of Assistant Engineer Electricity Sri Ramnath Ram. Although this witness has stated that deceased was getting payment of Rs. 1000/- per month from security agency and not from electricity board but there is no variation in the evidence of this witness on the points that- (i) that Junior Engineer and Assistant Engineer of Electricity Board kanke were employing private electrician (ii) the deceased also was employed for the work of electrician & (iii) at the time of accident, the deceased was doing repairing work of electricity wire upon direction of the then Assistant Engineer Electricity namely Sri Ramnath Ram.”

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CW2 is an Electrician and deposed that deceased was posted as a Guard in Jharkhand State Electricity Board, at Kanke Anchal but he was used in doing work of electrician. Further, he deposed that, he (this witness) and deceased, both were doing work as electrician in the electricity Board. He supported the case with regards to the incident. He deposed that monthly salary to workers were given by Assistant Engineer Ramnath Ram and

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upon his instruction, work order in writing were issued. This witness has been duly cross examined. This witness has stated that after death of deceased, the electricity board paid Rs. 10000/- and except that, no other benefit has been given to the wife and family of the deceased. The learned court also recorded that there was no suggestion to this witness that the deceased was never employed in the electricity board by Engineers of the department for doing work of electrician. With regard to CW3 it has been recorded that he deposed on the same lines as has been deposed by CW1 and CW2. This witness was a private electrician and was employed with the deceased in the Electricity Board. CW4 is the son of the deceased who also supported the case the opposite parties did not cross- examine this witness hence his entire testimony remained uncontroverted.CW5 - Balki Devi @ Balkhahiya is wife of the deceased who has fully supported the case and was cross examined. The learned court recorded that there was no cross examination of witness on the point of accident, manner of injury and death of the deceased. Further, there was no cross examination of the witness on the point that after the accident, the department had provided vehicle for taking the dead body to the house and paid Rs. 10000/- for cremation of the dead body. The opposite parties have asked question only about appointment letter, written order to climb on electricity pole and paper of salary, from this witness to which she answered in affirmative but at the same time the learned court found that this witness is an illiterate, rustic lady, having no knowledge of documents, so mere answering in affirmative about documents to her husband, her evidences, on others facts cannot be thrown out. It was also recorded that the opposite parties did not asked any question on facts which she has stated in her examination in chief.

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17. The learned court also considered the evidence of opposite

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party no.1/petitioner in paragraph no.21 as follows:

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“21. Opposite parties have examined one witness namely Md. Sabir Ansari. This witness has deposed that he is posted in Jharkhand Urja Vikas Nigam Ltd., Electricity Supply Division Kanke since 18.08.2017. He denied appointment of Late Lakhan Kumhar @ Lakhan Mahto in the Jharkhand State Electricity Board and further denied employee employer relationship of the deceased with the department. He denied any paper regarding payment of salary to the deceased in the office. In cross examination in para-10, this witness has stated that he has examined papers up to till the year 2011 and found no paper of Lakhan Kumhar in the employment register. Further, he denied his posting in Kanke Anchal on the day of accident i.e. 29.04.2007. In para-14 he has stated that official of the department used to issue work order. In para- 15, this witness has denied knowing information/ happenings taken place in the department before 2007.”

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18. Ultimately, the learned court recorded its findings on appraisal and scrutiny of the evidences in paragraph no.22 and conclusion at pare 23 as follows: -

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“23. Thus, on appraisal of oral as well as documentary evidence, I find that although there was no letter of appointment as well as documentary proof regarding payment of wages or salary to the deceased by the electricity board, but there are consistent oral evidences of witnesses about employment of the deceased at the time of accident in repairing electric wires on climbing electric poles upon direction of the then Engineer, Electricity namely Sri Ramnath Ram. Apart from oral evidences of claimant/applicant witnesses, documentary evidences Exhibit-3, letter of SDO, Ranchi to Circle Officer, Ormanjhi proves connection of the deceased with the department and Exhibit-1, Exhibit- 5 and Exhibit-6 supports the claimant's case. Therefore, I am of the view that injury to the claimant's husband by electrocution in course of his employment under

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opposite parties is established and proved in this case which resulted in death of the deceased and therefore, applicant being wife and dependent within the meaning of Section 2(d)(i) of the Act, is entitled compensation from opposite parties. Accordingly, this issue is decided affirmative and in favour of applicant.”

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19. This Court finds that the learned court has meticulously examined the evidences placed before the court and has clearly recorded a finding by referring to the evidence of CW1 that from the perusal of evidence of this witness, it is established that Junior Engineer and Assistant Engineer of Electricity Board, Kanke were employing private electrician for the trade and business of the board. This Court also finds that there is consistent evidence on record that the deceased was doing the repair work under the direction of the Assistant Engineer Sri Ramnath Ram and during the course of such work he received injuries by electrocution and died on the spot. This Court also finds that there is consistent evidence that after the incident, some money was also given by the opposite parties to the wife of the deceased for the purposes of cremation of the deceased.

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20. The accident in the present case is of the year 2007 and accordingly it is governed by the Workmen’s Compensation Act, 1923. The definition of employer, managing agent, wages and workman are quoted as under: -

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"employer" includes anybody of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship means such other person while the workman is working for him;

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"managing agent" means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business, but does not include an individual manager subordinate to an employer;

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"wages" includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment;

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"workman" means any person (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 business) who is-- (i) a railway servant as defined in section 3 of the Indian Railways Act, 1890 (9 of 1890), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii) employed in any such capacity as is specified in Schedule II.

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(2) The exercise and performance of the powers and duties of a local authority or of any department [acting on behalf of the Government]

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shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department. [(3) The [State Government], after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add to Schedule II any class of persons employed in any occupation which it is satisfied is a hazardous occupation, and the provisions of this Act shall thereupon apply [within the State] to such classes of persons:

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Provided that in making such addition the [State Government] may direct that the provisions of this Act shall apply to such classes of persons in respect of specified injuries only.]

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21. The relevant provision for the purposes of the present case as mentioned in Schedule-II, the following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that Act that is to say any person who is

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(iii) employed for the purpose of making, altering, repairing, ornamenting;

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(i) employed otherwise than in clerical capacity or on a railway in connection with operation maintenance

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(ix) employed in setting up, maintaining, repairing or taking down any telegraph or telephone line or post or any overhead electric line or cable or post or standard or fittings and fixtures for the same.

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22. The definition of employer includes any managing agent of the employer when the services of workmen are temporarily lent or let on hire to another person by the person with whom the workman has entered into contract of service and the definition of Managing Agent clearly means any person appointed or acting as representative of another person for the purpose of carrying of such other person’s trade or business.

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23. In the present case, there is enough evidence on record that the deceased person had taken up the work for repair of electric wire under the direction and instructions of SDO, Kanke and further there is enough evidence that the deceased was employed in the department for doing the work of electrician. It has been proved that the Assistant Engineer used to employ the deceased and others for the work of electricity department and on the basis of these facts, a finding has been recorded that from the evidence of the witnesses, it was established that Junior Engineer and Assistant Engineer of the Electricity Board, Kanke were employing private electricians for the

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trade and business of the Board and the deceased was one such employee.

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24. On the face of the aforesaid finding, this Court is of the considered view that the Assistant Engineer was acting on behalf of the Electricity Board while engaging the deceased for the purposes of repair of electricity wire and certainly such work was for the trade and business of the Electricity Board and therefore, the relationship of employer and employee between the Electricity Board and deceased stood established when seen in the light of definition of employer, workman and managing agent.

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25. This Court finds that there is uncontroverted evidence on record that the electricity board used to employ the private electrician also for the trade and business of the board and the manner of the incident and the fact that the deceased was working under the instructions of the officer of the electricity board has also been duly proved before the learned court. The conduct of the Electricity Board in providing some financial help to the wife of the deceased has also been duly established; there is consistent evidence that the deceased used to work for the Electricity Department for the purposes of repair of the electricity lines.

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26. This Court finds that the aforesaid finding of the learned court in paragraph 23 of the impugned award is based on due appreciation of materials on record. In view of the aforesaid findings, there is no merits in the argument of the petitioner that the relationship of employer and employee was not established before the learned labour court. This Court finds that the impugned award is well discussed and based on evidences on record and findings are based on appreciation of evidences. There is no scope of reappreciation of evidences on record and coming to a different finding. There is no perversity or illegality with respect to the findings recorded by the learned court in the impugned award. In absence of any perversity, the impugned order does not call for any interference.

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27. Accordingly, this writ petition is hereby dismissed.

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(Anubha Rawat Choudhary, J.)

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Saurav

Jharkhand State Electricity Board Now Jharkhand Bijli Vitran Nigam Ltd. through MD Shabir Ansari v. Balki Devi

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Jharkhand State Electricity Board Now Jharkhand Bijli Vitran Nigam Ltd. through MD Shabir Ansari v. Balki Devi

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