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2005 DIGILAW 361 (JK)

Ex. Engineer v. Ab. Rehman Naikoo

2005-12-17

MANSOOR AHMAD MIR

body2005
1. This appeal is directed against the award dated 10.05.2005 (hereinafter referred to as impugned award) passed by Assistant Labour Commissioner, District Baramulla (Commissioner under Workmens Compensation Act) in claim petition titled as Abdul Rehman Naikoo Vs. Executive Engineer. 2. Heard. Mr. Beigh, learned counsel for the appellant, argued that the appellant is not liable and cannot be saddled with the liability because the claimant/respondent No.1 is the permanent employee of the department. Mr. Beigh also argued that notice in terms of Section 10 of Workmens Compensation Act has not been served, thus the claim petition is not maintainable. 3. While rebutting the arguments Mr. Qadiri, learned counsel for the claimant/respondent No.1, argued that claimant/respondent No.1 is a permanent employee of the department which is admitted by the appellant. The Lineman is a workman in terms of Section 2(n) and Schedule IInd, Clause 9 and 19 of the Act. And further argued that the department had knowledge of the accident, thus there was no need to serve notice. That no substantial question of law is involved in the appeal, therefore, the appeal merits dismissal. 4. Considered. In terms of Section 30 of Workmans Compensation Act, (hereinafter referred to as the Act) the aggrieved party can not file appeal against the award, unless substantial question of law is involved in the appeal. It is profitable to reproduce proviso to Section 30 of the Act herein;- "Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause(b), unless the amount in dispute in the appeal is not less than three hundred rupees:" 5. While going through this provision of law, one comes to an inescapable conclusion that substantial question of law must be involved in the appeal. The perusal of the appeal and record disclose that substantial questions of law are involved in this appeal which are framed as under;- (1) Whether for want of notice in terms of Section 10 of the Act, the claim of the respondent no.1 is liable to be rejected? (2) Whether the claimant is workman in terms of Section 2(n) of the Act? I deem it proper to dwell on these points one by one. (2) Whether the claimant is workman in terms of Section 2(n) of the Act? I deem it proper to dwell on these points one by one. It is profitable to reproduce proviso 4 to Section 10 clauses (a) and (b) herein, which reads as under:- "10.Notice and claim.-(1) [No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within [two years] of the occurrence of the accident or in case of death within [two years] from the date of death:] ................ [Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the [entertainment of a claim]- (a) if the claim is [preferred] in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place were the accident occurred, or (b) if the employer [or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed] had knowledge of the accident from any other source at or about the time when it occurred:] 6. This provision of law mandates that notice is must but defect or irregularity in a notice shall not be a bar. If the employer had the knowledge of the accident in terms of proviso 4 to Section 10 clause (a) and (b) of the Act, then there is no need to comply with the mandate of Section 10 of the Act. 7. In terms of parawise reply dated 14.11.2003 the appellant has admitted that they have paid under rules all the expenses which claimant/respondent no.1 has spent for his treatment. The said parawise reply was submitted by appellant to respondent vide letter No.3108-10/EDS dated 14.11.2003 while as the accident had occurred on 5th July, 2002. 7. In terms of parawise reply dated 14.11.2003 the appellant has admitted that they have paid under rules all the expenses which claimant/respondent no.1 has spent for his treatment. The said parawise reply was submitted by appellant to respondent vide letter No.3108-10/EDS dated 14.11.2003 while as the accident had occurred on 5th July, 2002. Thus, the appellant had the knowledge of the said accident. Accordingly, there was no need to serve notice in terms of Section 10 of the Act. 8. I have laid my hands on a judgment reported in AIR 1959 Allahabad 586 Makhan Lal Marwari,appellant V. Audh Behari Lal, respondent. It is profitable to reproduce para-10 of the said judgment herein, which reads as under;- "10. To my mind, therefore, the present case firstly feel within the exception which provided that want of notice shall not be a bar to the entertainment of a claim where the employer had knowledge of the accident etc. Secondly since all the relevant information had been given to the appellant otherwise, the sending of a written notice letter, (later?) would have had no larger effect than compliance of a formality. The Commissioner was not unjustified in holding that there was not sufficient cause for not sending notice. The appellants contention with regard to section 10 either cannot prevail." Bombay High Court in case Deep Metal Industries Vs. B. D. Gaikward, reported in 1996 ACJ page 78 has also returned the same finding. The same ratio has been laid down by Orissa High Court in 1995 LAB.I.C 2750. 9. Now question is whether the respondent no.1/claimant is a workman. The appellants in the memo of appeal have admitted that claimant/respondent no.1 is a permanent employee of Power Development Department. Section 2 (1)(n) defines the workman. Serial (ix) and (xix) of Schedule II reads as under;- "The following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is- "(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 standard or fittings and fixtures for the same; (xix) employed, otherwise than in a clerical capacity, in the generating, transforming transmitting or distribution of electrical energy or in generation or supply of gas;" 10. While reading the sr.no. While reading the sr.no. ix and xix of the Schedule (2) of the Act, the lineman is an employee of the appellants. 11. Section 2(1)(n) and Schedule II of the Act nowhere mandates that lineman who is a permanent government employee is not a workman. 12. The argument of learned counsel for the appellant that the claimant/respondent no.1 being permanent employee of the Government of Jammu & Kashmir and a member of services of Jammu & Kashmir Power Development Department does not fall within the definition of workman is devoid of any force. 13. Viewed thus the appeal is dismissed. Impugned award is upheld. Send down the record.