Dismissed

K.N.Prasad, v. P.R.Gigi

Kerala HC20 Jan 2020MFA (ECC)/20/2019

Case brief

AI extract

What is this about?

High Court of Kerala set aside an interlocutory appeal challenging a correction order by the Employees Compensation Commissioner. The Commissioner had rectified a clerical error in its original final order that mistakenly identified the contractor as liable instead of the principal employer. Affirmed.

What did the court decide?

Appeal dismissed; corrigendum order of the Employees Compensation Commissioner confirmed.

K.N.Prasad, Vs P.R.Gigi — Pension and Retirement Benefits | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941

¶5

MFA.No.20 OF 2019

¶6

AGAINST THE ORDER IN ECC 82/2014 (WCC No.75-2008) DATED 11-08-2017 OF EMPLOYEES COMPENSATION COMMISSIONER, IDUKKI

¶7

APPELLANT/1st OPP: PARTY:

¶8

K.N.PRASAD, AGED 44 YEARS, S/O.NANDANAN, KOLLAMAVUKUDIYIL HOUSE, MANIPPARA P.O., IDUKKI DISTRICT, PIN-685602.

¶9

SRI.BABU JOSEPH KURUVATHAZHA SRI.P.T.ABHILASH

¶10

RESPONDENTS/APPLICANT & 2ND OPP:PARTY:

¶11

1 P.R.GIGI, S/O.RAMAKRISHNAN, PALAMOOTTIL HOUSE, MANIPPARA P.O., IDUKKI DISTRICT, PIN-685602.

¶12

2 THE SECRETARY, KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.

¶13

SRI.N.SATHEESH, SC

¶14

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MFA.No.20 OF 2019

'CR'

JUDGMENT

This appeal has been filed by the first respondent in ECC No.82/2014, on the files of the Court of the Employees Compensation Commissioner, Idukki, Peermade, as per which it has made certain corrections to its Final Order issued earlier. The appellant asserts that the impugned order has been issued without competence and thus prays that it be set aside.

¶20

None of the facts are in dispute in this appeal and I, therefore, do not deem it necessary or requisite to record the same or to evaluate it.

¶21

The sole contention of the appellant, who has filed this appeal against the order, dated 11.08.2017, in the aforementioned ECC, is that the Employees Compensation Commissioner does not obtain any jurisdiction to modify or review his own original order; and therefore, that the order impugned, which does so, is untenable and illegal.

¶22

When I examine the original Final Order of the Employees Compensation Commissioner, it is luculent that the liability to pay the workman has been cast on the appellant,

¶23

MFA.No.20 OF 2019

¶24

¶25

since the work, during which the workman had been injured, was contracted by him from the Kerala State Electricty Board (KSEB). Ineluctably, this has been ordered in conformity with Section 12(2) of the Employee's Compensation Act, 1923 (for short 'the Act'); which is manifest from the said order, which records in page 10 thereof, while answering issue No.1, as under:

¶26

“As per Section 12 of the Workmen's Compensation Act, the compensation is to be paid by the principal employer at the first instance and the contractor shall indemnify the principal employer.”

¶27

However, in the operative portion of the said order, the contractor, namely the appellant herein, was directed to pay the amounts awarded to the workman/applicant; while the second opposite party, namely the KSEB, was directed to indemnify him. Noticing this error, brought to its notice by the KSEB through an interim application, the Employees Compensation Commissioner issued the impugned order correcting the original order, thus directing the KSEB, being the principal employer, to pay the compensation and interest awarded to the workman/applicant at the first instance and to then seek indemnity from the appellant/first opposite party, as per Section 12(2) of the Employee's Compensation Act.

¶28

MFA.No.20 OF 2019

¶29

¶30

It is this order that has been challenged by the appellant on the assertion that the Employees Compensation Commissioner does not obtain jurisdiction to make corrections in its Final Order under Rule 32 of the Workmen's Compensation Rules, 1924 (for short, 'the Rules').

¶31

When I assess the afore contentions of the appellant, I must certainly first examine the provisions of Section 12 of the Act as also Rule 32 of the Rules, for which purpose, I reproduce the same as under:

¶32

“Section 12 of the Employee's Compensation Act.

¶33

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 contracts 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 (employee) employed in the execution of the work any compensation which he would have been liable to pay if that (employee) 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 (employee) under the employer by whom he is immediately employed.

¶34

(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 (employee) could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify

¶35

MFA.No.20 OF 2019

¶36

¶37

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 (employee) 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.

¶38

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

¶39

Rule 32 of the Workmen's Compensation Rules, 1924

¶40

Judgment - (1) The Commissioner, in passing orders, shall record concisely a judgment, his finding on each of the issues framed and his reasons for such finding.

¶41

(2) The Commissioner, at the time of signing and dating his judgment, shall pronounce, his decision, and thereafter no addition or alteration shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission.”

¶42

It is perspicuous from Section 12 of the Act that where the principal is found liable to pay compensation, he shall be entitled to be indemnified by the contractor, though the employee is not prevented from recovering compensation from the contractor directly instead of the principal. It is, therefore, without doubt that the liability to pay the workmen is on the contractor, while the principal is enjoined to pay the same at the first instance and then recover it from the contractor, which obviously, is intended to help the claimant/employee.

¶43

MFA.No.20 OF 2019

¶44

¶45

There can be, therefore, no contest to the position in law that the final obligation to pay the compensation is on the contractor and not on the principal employer; and in the case at hand, through the afore extracted conclusions, the Compensation Commissioner has correctly found it to be so. However, when the operative portion of the Final Order was settled, the following directions were mistakenly issued:

¶46

“The first opposite party being the principal employer of the applicant shall pay the amounts awarded above to the applicant and the second opposite party being the immediate employer of the applicant shall indemnify the first opposite party.”

¶47

As is unmistakable from the afore directions, the Compensation Commissioner clearly erred in directing the first opposite party - who is, in fact, the contractor - to pay the amounts awarded to the applicant and directed the second opposite party - which is the KSEB/principal employer - to indemnify him. This certainly is contrary to the mandate of Section 12(2) of the Act and can only be seen to be an inadvertent mistake, since the Commissioner mistook the first opposite party to be the principal employer, though he is concededly the contractor. When this obvious mistake was brought to the notice of the Commissioner by the KSEB

¶48

MFA.No.20 OF 2019

¶49

¶50

through an interlocutory application, the Commissioner invoked his powers under Rule 32 of the Rules and issued the impugned order, correcting the original Final Order in the following manner:

¶51

“The 2^nd opposite party being the principal employer of the applicant shall pay the amounts awarded above to the applicant and the 1^st opposite party being the immediate employer of the applicant shall indemnify the 2^nd opposite party.”

¶52

Corollary corrections were also made to the body of the said order.

¶53

In the afore scenario, it becomes irrefutable that the Commissioner had only corrected the Final Order, the errors in which had occurred solely on account of accidental slip or omission. This is beyond doubt because through out the Final Order, the Commissioner has found the contractor to be responsible for the compensation but when the final directions were issued therein, it inadvertently mistook the first opposite party, being the appellant herein, to be the principal employer and thus issued the afore extracted directions, which can be nothing but an obvious error.

¶54

That said, as is limpid from the stipulations of Section 32 of the Rules, the Commissioner is prohibited from adding or altering his judgment but not in correcting a

¶55

MFA.No.20 OF 2019

¶56

¶57

clerical or arithmetical mistake arising from an accidental slip of omission. The error in the final order of the Commissioner, as seen above, is certainly only a clerical one, which arose from an inadvertent slip on account of mistakenly construing the appellant, who was the first opposite party before it, to be the principal employer, which admittedly he is not. Further, it is indubitable that the objective of Rule 32 of the Rules, authorising the Commissioner to make corrections of clerical or arithmetical mistakes in its judgment arising from any accidental slip of omission, is to mitigate the unintended rigor, of such errors on the part of the Court, to fall on the parties; and therefore, is a necessary concomitant to discharge its statutory obligations within the frame work of the Act.

¶58

Thus, in the afore factual and legal scenario, this Court is left without any doubt that the Commissioner has acted well within its powers in having issued the impugned order, which otherwise would have led to a travesty of injustice; and I consequentially, dismiss this appeal, confirming the said order, however, without making any order as to costs.

¶59

Sd/- DEVAN RAMACHANDRAN

stu

JUDGE

MFA.No.20 OF 2019

K.N.Prasad, v. P.R.Gigi

Case brief

What is this about?

What did the court decide?

K.N.Prasad, v. P.R.Gigi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

P.M.Joy Vs P.v.Johny

Bincy Jose, Vs Muhammad Sabir

Jayaprakash Vs Thankamma

K. John Vs John Joseph

M.K.Chellappan Vs P.N.Prasad

Kavitha K Karunakaran Vs Girijakumari Ayyappan