FOOD CORPORATION OF INDIA v. RABAT KHAN — 1972 DIGILAW 188 (DEL)

( 1 ) THE food Corporation of India (hereinafter referred to as the Corporation) employed a firm of contractors by name M/s Bhajan Singh Pratap Singh (hereinafter referred to as the contractors) for the purpose of loading and unloading the foodgrain bags in the godowns of the Corporation. One Rahat Khan, (hereinafter referred to as the employee) was one of the labourers who were employed by the contractors in the work of loading and unloading of the foodgrain bags. While engaged in this work on 8. 5. 1968, the employee sustained some injuries which resulted in the loss of two fingers of his left hand. The employee thereupon filed an application under the Workmen s Compensation Act, 1923 (hereinafter referred to as the Act) claiming compensation of Rs. 2,240. 00 making both the Corporation as well as the contractors liable for the said compensation. The Corporation contested the claim of the employee on the ground that he was not an employee of the Corporation but an employee of the contractors and that both under law as well as the terms of the agreement with the contractors, the Corporation was not liable to pay any compensation to the employee. The contractors remained ex parte. ( 2 ) THE following issues were framed by the Commissioner under the Act before whom the application had been filed by the employee : 1. Whether the accident arose out of and in the course of the employment of the petitioner with the respondents or any one of them as alleged ? 2. Whether the petitioner suffered any injuries arising out of and in the course of his employment with respondent No. 2 ? 3. To what amount of compensation, it any, is the petitioner entitled in this petition ? 4. Whether any notice as required under the law had been served upon the respondent ? If not what is the effect thereof ? 5. Whether the petition is bad for misjoinder of the parties ? 6. Relief. The learned Commissioner held all these issues in favour of the employee and by his order dated 6. 9. 1971 directed the Corporation as well as the contractors to pay Rs. 2,240. 00 to the employee. He has further directed that if the amount was recovered from the Corporation, then the Corporation would be entitled to be reimbursed by the contractors for the said amount. 9. 1971 directed the Corporation as well as the contractors to pay Rs. 2,240. 00 to the employee. He has further directed that if the amount was recovered from the Corporation, then the Corporation would be entitled to be reimbursed by the contractors for the said amount. The Corporation has preferred the present appeal against the said order of the learned Commissioner. ( 3 ) A preliminary objection has been raised both by the employee as well as the contractors that this appeal is not maintainable as it is barred by limitation. The order of the learned Commissioner was passed on 6 9-1971 and under sub-section (2) of section 30 of the Act, the appeal has to be filed within a period of 60 days from the date of the order of the Commissioner. The present appeal was filed on 31. 1. 1972. The appeal, therefore, is filed beyond a period of 60 days from the date of the order of the Commissioner. The Corporation has, therefore, filed an application under section 5 of the Limitation Act for condonation of the delay in filing the appeal. ( 4 ) IN this application it is stated that an application for the certified copy of the order of the Commissioner was filed on 9. 9. 1971 and that the certified copy was delivered to the Corporation s counsel on 9. 11. 1971. It is stated that on 10. 11. 1971, the Corporation s counsel forwarded the certified copy along with his opinion to the Assistant Legal Adviser Ministry of Law, Litigation Section, in which he expressed his opinion that this was a fit case for filing an appeal in the High Court against the order of the Commissioner. It is further stated that the Assistant Legal Adviser forwarded the certified copy of the order along with the copy of the opinion of the Corporation s counsel to the Regional Manager of the Corporation on the same day along with his forwarding letter dated 10. 11. 1971 in which it was advised that the appeal could be filed within a period of 90 days from the date of the order of the Commissioner after excluding the time spent in obtaining the certified copy of the order. The Corporation acting on this advice of the Assistant Legal Advisor bona fide believed that the appeal could be filed within a period of 90 days. The Corporation acting on this advice of the Assistant Legal Advisor bona fide believed that the appeal could be filed within a period of 90 days. ( 5 ) THE explanation offered by the Corporation for not filing the appeal within the period of limitation specified under section 30 (2) of the Act is hardly acceptable. In the first instance, it was duty of the counsel for the Corporation while advising the Corporation to file an appeal against the order of the Commissioner to also indicate the period of limitation for filing the appeal. The counsel did not do so. In the second place, it was the the duty of the Assistant Legal Adviser of the Ministry of Law to have examined the position with regard to the period of limitation and to have communicated to the Corporation that the appeal had to be filed within the period of limitation prescribed under sub-section (2) of section 30 of the Act. It is not explained what was the basis of the assumption of the Assistant Legal Adviser that the period of limitation was 90 days. The affidavit of the Assistant Legal Adviser who gave this advice to the Corporation regarding the period of limitation has not been filed. Even after this letter of the Assistant Legal Adviser reached the Corporation s counsel, he still did not file the appeal immediately. The letter of the Assistant Legal Adviser reached the Corporation s counsel on 13. 1. 1972. But he filed the appeal on 31. 1. 1972. There has been no explanation forthcoming for the delay between 13. 1. 1972 to 31. 1. 1972. There is, therefore, no satisfactory explanation for the delay in filing the appeal. On this, ground, the appeal is liable to be dismissed. ( 6 ) EVEN on merits, the Corporation has no case. But he filed the appeal on 31. 1. 1972. There has been no explanation forthcoming for the delay between 13. 1. 1972 to 31. 1. 1972. There is, therefore, no satisfactory explanation for the delay in filing the appeal. On this, ground, the appeal is liable to be dismissed. ( 6 ) EVEN on merits, the Corporation has no case. The liability of the Corporation to pay compensation to the employee arises under section 12 (1) of the Act which is in the following terms : "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 workman employed in the execution of the work any compensation which he would have been liable to pay if that workmen 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. " This section has to be read along with section 13 of the Food Corporations Act, 1964 which describes the functions of the Corporation in the following terms : "function of Corporation (1) Subject to the provisions of this Act, it shall be the primary duty of the Corporation to undertake the purchase, storage, movement, transport, distribution and sale of food-grains and other foodstuffs. " Sub-section (2) of section 13 is not relevant for the purpose of this case. It is not disputed that the Corporation had employed the contractors for the purpose of loading and unloading the foodgrains which was certainly one of the purposes of the Corporation s trade or business within the meaning of section 13 of the Food Corporations Act. " Sub-section (2) of section 13 is not relevant for the purpose of this case. It is not disputed that the Corporation had employed the contractors for the purpose of loading and unloading the foodgrains which was certainly one of the purposes of the Corporation s trade or business within the meaning of section 13 of the Food Corporations Act. It is, however, contended on behalf of the Corporation that the work of loading and unloading of foodgrains during the course of which the employee sustained the injuries was not work which was ordinarily a part of the trade or business of the Corporation. I am unable to accept this contention. It is inevidence that the employee sustained the injuries while the wagons were being shunted. Apart from the fact that the business of the Corporation under section 13 of the Food Corporations Act is to undertake the purchase, storage, movement, transport, distribution and sale of foodgrains, the sole witness examined on behalf of the Corporation, namely, R. W. 1, has admitted in his evidence that the contract of labour handling and transport of foodgrains had been given to M/s Bhajan Singh Pratap Singh and Co. Therefore, the accident occurred not only when the Corporation had engaged the contractors in the course of or for the purposes of their trade or business but also while the contractors were executing a part of the work which was ordinarily part of the trade or business of the Corporation. The Corporation is, therefore, liable under section 12 (1) of the Act to pay compensation to the employee even if the employee at that time was working under the contractors. ( 7 ) THE learned counsel for the Corporation sought to rely upon a decision of the Division Bench of the Bombay High Court in Rabia Mahomed Tahir v. G. I. P. Railway1 in support of his contention that the shunting of wagons for the purpose of loading and unloading the foodgrains was not ordinarily part of the work of the Corporation. The facts of the case before the Bombay High Court were that the G. I. P. Railway had entrusted to a contractor to construct a transmission line to carry electric power to various sub-stations from Kalyan. While engaged in this work, an employee of the contractor met with an accident and died. The facts of the case before the Bombay High Court were that the G. I. P. Railway had entrusted to a contractor to construct a transmission line to carry electric power to various sub-stations from Kalyan. While engaged in this work, an employee of the contractor met with an accident and died. A claim was made against the G. I. P. Railway under section 12 (1) of the Act. This claim was negatived on the ground that the construction of the original works which would be necessary to convey the power to the locomotives was not part of the ordinary trade or business of the G. I. P. Railway. The facts of this case are clearly distinguishable from the facts of the present case. The work of the G. I. P. Railway was the transportation of passengers and not the construction of power stations or transmission lines to carry the electric power to various substations on the railway. But in the present case, the functions of the Corporation did include the movement and transport of foodgrains. This work necessarily implied the shunting of wagons in which the foodgrains were being transported. Therefore, the shunting of wagons while transporting the foodgrains was ordinarily part of the work of the Corporation. ( 8 ) THE learned counsel for the Corporation also referred to the decision of the Supreme Court in Kailash Chandra v. The Union of India1 in which the meaning of the word ordinarily was explained with reference to rule 56 (B) (i) of the Fundamental Rules. In that context, the Supreme Court observed that " ordinarily means in the large majority of cases but not invariably. " For one thing, the Supreme Court was explaining the meaning of the word ordinarily with reference to Fundamental Rule 56 (b) (i) and that meaning cannot be applied to the word occurring in section 12 (1) of the Act. Secondly, even if the meaning given by the Supreme Court is accepted for the purpose of section 12 (1) of the Act, I still do not see how it will help the Corporation s case. The Corporation does in the large majority of cases engage itself in the work of transport of foodgrains which includes the work of shunting of wagons. The Corporation may not invariably engage itself in that work. The Corporation does in the large majority of cases engage itself in the work of transport of foodgrains which includes the work of shunting of wagons. The Corporation may not invariably engage itself in that work. But still it would mean that it is ordinarily a part of the work of the Corporation to transport the foodgrains which includes the work of shunting of the wagons. ( 9 ) ON the other band, the learned counsel for the contractors has referred to a decision of the Calcutta High Court in Great India Trading Co. Pvt. Ltd. v. Md. Taslim2. In that case, the appellant carried on business of transport of goods by boat. They engaged a contractor who supplied boat and crew and did the same work under their own superintendence. The contractor s crew were not paid by the appellant directly nor were they under the control of the appellant. In the course of unloading of the goods from a steamer, a Dandi working on the boat entangled himself in the rope which was thrown from the steamer for the purposes of tying the boat and suffered injury. The Dandi claimed compensation from the appellant. It was held that the appellant was the principal and therefore was liable under sub-section (1) of section 12 of the Act inasmuch as the transportation of goods loaded or unloaded from the steamer was included in the ordinary business of the appellant. The rule laid down by the Calcutta High Court, in my view, is fully applicable to the facts of the present case. Therefore, the Corporation cannot escape its liability under section 12 (1) of the Act to pay compensation to the employee. ( 10 ) IN the result, the appeal is dismissed with costs.