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1995 DIGILAW 560 (ALL)

Shakti Industries v. Suresh Chandra Sharma

1995-05-08

R.B.MEHROTRA

body1995
R. B. MEHROTRA, J. ( 1 ) SRI Ramjit Singh son of Sri Ram Chandra resident of Ahirhada. P. S. Harduaganj. Aligarh who figures as respondent No. 3 in this Writ Petition filed the case under Section 22 of Workmens compensation Act, before the Workmens Compensation Commissioner. In the said case Sri ramjit Singh who will be referred to as respondent No. 3 for sake of convenience, alleged that on July 28. 1984 he was employed as worker in the Shakti Industries. Ramghat Road, harduaganj. (the petitioner factory ). During the course of employment in the factory, his right hand got amputated as a result of the hand getting enmeshed in the machine. The respondent No. 3 also alleged that he was working on the pay Rs. 300/- per month with the Shakti Industries, for the compensation for respondent No. 3 laid a claim of Rs. 25,200/- before Workmens compensation Commissioner/ Additional District Magistrate (City), Aligarh Tribunal. ( 2 ) SHAKTI Industries contested the above case by filing written statement and raised the objections as under:-1. That respondent No. 3 was not posted in any capacity with the petitioner nor was working in the factory of petitioner. 2. That Additional District Magistrate (City) has no jurisdiction to hear the petition of respondent no. 3. ( 3 ) THAT the Additional District Magistrate, Aligarh was not nominated as Workmens compensation Commissioner by State Government under the provision of Section 20 of the workmens Compensation Act and there is no Gazette notification regarding the appointment of additional District Magistrate. Aligarh. The petitioner insisted before the Workmens compensation Commissioner that in the case filed by the respondent No. 3 the preliminary objections be decided before entering into the merit of the controversy. The Workmens compensation Commissioner did not accede to the preliminary objection raised, consequently the petitioner instituted Writ Petition No. 8359 of 1985. This Court by its order dated April 16. 1987 dismissed the writ petition and while dismissing the writ gave direction with regard to preliminary objections that Workmens Compensation Commissioner can decide these points after taking the desired evidence, hence the Workmens Compensation Commissioner should decide the case on merits. Consequently the Workmens Compensation Commissioner. Aligarh by virtue of his judgment dated March 3, 1989 awarded a sum of Rs. 25,200/- in favour of respondent No. 3 to be paid by the petitioner. Consequently the Workmens Compensation Commissioner. Aligarh by virtue of his judgment dated March 3, 1989 awarded a sum of Rs. 25,200/- in favour of respondent No. 3 to be paid by the petitioner. Aggrieved by the aforesaid judgment, this writ petition has been filed before this Court. 3. I have heard at great length Sri Satish Chaturvedi for petitioner and Sri Devendra Dhama for respondents. ( 4 ) THE learned counsel for petitioner has raised 4 points in support of the petition.-1. That under the provision of Section 20 of Workmens Compensation Act, Additional District magistrate (Executive) Aligarh, A. D. M. Executive has been appointed as Compensation commissioner, while respondent No. 1. Additional District Magistrate (Nagar) is not Additional district Magistrate Executive and on this basis raised the argument that Additional District magistrate, Aligarh has no right to hear the claim of respondent No. 3. 2. Second objection raised is that the notification regarding the appointment of Additional district Magistrate (Nagar) Aligarh is not published in Government Gazette. 3. The third objection raised by the learned counsel is that it is not proved from the evidence led by the parties that respondent No. 3 was employed in the petitioners factory on the date of accident, the conclusion of fact drawn by the Compensation Commissioner is against the tenor of evidence. 4. The fourth objection is that the claim of respondent No. 3 is barred by time under Section 10 of the Act. ( 5 ) THE Compensation Commissioner by his judgment dated March 3, 1989 on the basis of evidence led by the parties held that respondent No. 3 was working in the factory of the petitioner and as a fact held that as while working at the machine the right hand of respondent no. 3 got amputated as a result of accident by the machine and on the above basis concluded that the respondent No. 3 is entitled to compensation from the petitioner. 3 got amputated as a result of accident by the machine and on the above basis concluded that the respondent No. 3 is entitled to compensation from the petitioner. ( 6 ) REGARDING the jurisdiction of the Tribunal, the Compensation Commissioner has made a comment that in this district there are separate Additional District Magistrate Executive for the rural and Urban Area and it will be presumed that both the officers are vested with the powers of Compensation Commissioner under the provisions of Workmens Compensation Act and in this sequence made a comment that the accident took place on July 28, 1984 and the claim was filed on November 22, 1984, that there is no question of the claim being barred by time. ( 7 ) IN the perspective of the above factual conclusions, the arguments raised by the petitioner are being dealt with in the same sequence as raised by the learned counsel for the petitioner. ( 8 ) THE Directory of Government orders paragraph 303 enumerates different Government orders by virtue of which in different districts Additional District Magistrate (Executive) have been nominated as Compensation Commissioner under the provisions of Workmens Compensation act by the State Government and in the aforesaid paragraph it has been mentioned that additional District Magistrate (Executive) Aligarh is the Compensation Commissioner under the provisions of the Act. ( 9 ) THE sole point for determination is whether the Additional District Magistrate (Nagar) Aligarh can be held as Additional District Magistrate (Executive) under the provisions of the Act. ( 10 ) IN this very connection this court held in its judgment dated April 16, 1987 in the previous writ petition of the petitioner that on the day the claim was filed by the claimant on that day who was the authority competent to work as Compensation Commissioner is a finding to be imparted by the Compensation Commissioner. In that connection the Compensation Commissioner on the evidence came to the conclusion that there are separate Additional District Magistrate for city, and rural area in the district as Additional District Magistrate (Executive) and on that basis held that the Additional District Magistrate (Executive) who was appointed for the city has been designated as Workmens Compensation Commissioner. In that connection the Compensation Commissioner on the evidence came to the conclusion that there are separate Additional District Magistrate for city, and rural area in the district as Additional District Magistrate (Executive) and on that basis held that the Additional District Magistrate (Executive) who was appointed for the city has been designated as Workmens Compensation Commissioner. In this sequence from the respondent side a question-answer was obtained from the District Magistrate, Aligarh in which it was mentioned that the Additional District Magistrate (Executive) Nagar works as Workmens compensation Commissioner, as denoted by the distribution of powers No. 498/7753 dated august 1987 the certified copy of the same was filed as Annexure-3, the correctness of which has not been disputed. From the above discussion it is manifest that Additional District magistrate (Nagar) is Additional District Magistrate Executive and he had been sanctioned as workmens Compensation Commissioner under the provision of Section 20 (1) of the Act by the state Government, so the first objection raised by the petitioner is devoid of force. Accordingly it is rejected. ( 11 ) SO far as the second point is concerned Additional District Magistrate (Executive) has been nominated as Workmens Compensation Commissioner and the same is published in government Gazette. That Government order is published in U. P. Gazelle Part 1 dated August 27, 1960 (See 1960 Allahabad Law Times Part 5 Page 120) ( 12 ) IN this way the second objection raised by the learned counsel for the petitioner is also without force. ( 13 ) THE arguments raised by the learned counsel for the petitioner on other points have been dealt by the Workmens Compensation Commissioner by his judgment after discussing the appropriate evidence. The petitioners counsel has in connection With third argument mainly insisted on this that the on the day it is alleged that the hand of respondent No. 3 got cut by the machine of petitioner by that day the machine of the petitioner had not started working, so there was no question of the hand of the claimant being amputated by the machine. In this connection detailed discussion is there in the judgment of the Compensation Commissioner and has recorded a finding of fact that respondent No. 3 was working with the petitioner on the day of accident, in reality the start of the factory work or the start of machine is not relevant to the question at hand. In the Act the definition of workman is in the Act and in view of that definition, any person will be deemed to be worker of another, power to working to be deemed as worker, perusal of the provision of the aforesaid entry the definition of worker is an all embracing definition including any worker doing manual work barring a clerk of Railway Service. In reality even before the start of factory the cleaning of machine etc. is started, and in that connection the hand of the respondent No. 3 can get amputated by machine even otherwise there is no justification to interfere with the finding of fact recorded by the Compensation Commissioner. The compensation Commissioner has dealt with the other point raised by the petitioner and after consideration gave the judgment. I am in complete agreement with the said judgment, accordingly all the points raised by the petitioner are devoid of force. ( 14 ) FROM the above discussion it is clear that there is no force in any of the points raised by the petitioner and the writ petition is also liable to be dismissed on merits. ( 15 ) THE writ petitioner in para 8 of the writ petition has made a false statement that the appointment of respondent No. 1 as Workmens Compensation Commissioner was not published in Government Gazette while the reality is that the appointment of respondent No. 1 as workmens Compensation Commissioner is published in Government Gazette description of which has already been given in this judgment. It is clear that by making false assertion, the petitioner was successful in obtaining interim order in his favour. The writ petition is liable to be dismissed on this sole ground. It is clear that by making false assertion, the petitioner was successful in obtaining interim order in his favour. The writ petition is liable to be dismissed on this sole ground. The petitioner can be hauled up for filing false affidavit under provision of Section 193 IPC but under the circumstances of the case, I do not deem it expedient to do so, however, on account of this defect, I decide it proper to dismiss the petition with cost (High Court Procedure of High Court Act, 1869), Section 3 and by utilising the powers vested under Article 226 of the Constitution under the circumstances of the case. I impose special cost of Rs. 10,000/- on the petitioner and the respondent No. 3 will be entitled to realise this on strength of this judgment. Apart from this on account of the stay of operation of the impugned order during the pendency of this writ the respondent is entitled to get interest at the rate of 12 per cent per annum from the petitioner. According to above direction the petitioners petition is dismissed with Rs. 10,000-as cost. ( 16 ) UNDER the mandatory provision of Section 7 Official Language Act the Registrar of the court is directed to get a copy of the judgment translated into English through a competent person within a month, after getting approved by court get copy issued as per rules on application of parlies. Without annexing English translation of a copy of this judgment, copy be not issued to parties nor the copy of judgment be sent down to court below without the translation. . .