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2005 DIGILAW 363 (JK)

Divisional Manager v. Shabir Ahmad Hajam

2005-12-17

MANSOOR AHMAD MIR

body2005
1. This appeal is directed against the award dated 10.10.2001 (hereinafter referred to as impugned award) passed by Assistant Labour Commissioner, District Kupwara, (Commissioner under Workmens Compensation Act) in the claim petition titled as Shabir Ahmad Hajam Vs. Divisional Manager and others. 2. Mr. Aijaz, learned counsel for the appellant, stated that petitioner (respondent No.1 herein) was not the employee of State Forest Corporation thus, the appellant should not have been saddled with the liability. It is stated that the following substantial questions of law are involved in this appeal:- (I) Whether the labourer who is employed by the Contractor for extracting timber from forest is a workman? (II) Whether the appellant is employer? 3. Heard. Considered. It is profitable to reproduce proviso to Section 30 of Workmens Compensation Act herein, which reads as under:- "Provided that no appeal shall lies 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: 4. An appeal against the award passed by Commissioner will lie only when substantial question of law is involved. 5. The important question is whether the plea taken by the appellant in the memo of appeal was taken before the trial court or not? 6. While going through the objections, it appears that appellant has nowhere pleaded that if a contractor engages labourer(s) on the site allotted to contractor the said labourer(s) cannot fall with the definition of Workman and appellant/department cannot be held to be the employer. 7. It appears that petitioner (respondent No.1 herein) was hit by a rolling log and sustained injuries while working in the compartment No.43 at Nai Harai. 8. The trail Court framed issues in the case and examined the witnesses. All the witnesses examined by the parties in the trial court have deposed that the deceased sustained injuries while working in compartment No.43 at Nai Harai. It is not the case of the appellant/non-applicant that the deceased was not working in the compartment and the work was not allotted to the contractor. 9. The perusal of the evidence disclose that petitioner (respondent No.1 herein) was working in the compartment No.43. It is not the case of the appellant/non-applicant that the deceased was not working in the compartment and the work was not allotted to the contractor. 9. The perusal of the evidence disclose that petitioner (respondent No.1 herein) was working in the compartment No.43. It is also proved rather admitted that Contractor had engaged labourers including the respondent No.1 for cutting down trees in the forest compartment No.43. 10. It is profitable to reproduce the definition of `employer given in Workmens Compensation Act herein:- "2(1)(e). "employer" includes any body of persons whether incorporated or no and any managing agent of an employer and the legal representative of a deceawed employer, and, when the services of a 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;" 11. It is profitable to reproduce Section 12(1) of Workmens Compensation Act herein which reads as under:- "12.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 contract 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 workman 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." 12. Section 12 of Workmens Compensation Act mandates that if the State engages a contractor for carrying out the business or any other trade, the State as principal is liable. 13. Gujarat High Court, in case Executive Engineer, Kadana Dam and anr. Vs. Phebiben and others, reported in 1977 ACJ 204, has held that if a workman is employed by contractor in order to construct a dam the State is liable. 13. Gujarat High Court, in case Executive Engineer, Kadana Dam and anr. Vs. Phebiben and others, reported in 1977 ACJ 204, has held that if a workman is employed by contractor in order to construct a dam the State is liable. Similarly if any activity is undertaken in exercise of the trade or business of the Government, the department is employer. It is profitable to reproduce paras 18, 19 and 22 of the judgment herein:- "18. In this case, the Government of Gujarat, through its Public Works Department had undertaken the Kadana Dam Project. Once construction of the dam project was undertaken by the Government of Gujarat through its Public Works Department, it became the business activity of the State Government (vide section 2(2)). In order to execute this work the State Government employed a contractor, namely, Cementation Company Limited. That company is indisputably the contractor. So the first two conditions are satisfied. 19. The controversy is that the work which was given to the contractor was not ordinarily part of the trade or business of the principal and, therefore, the third condition for invoking application of section 12 is not satisfied. There is absolutely no substance in this contention. In view of the provision contained in subsection (2) of section 2. Once the power to build a dam across the river was sought to be exercised by undertaking the Kadana Dam Project, to be executed through the Public Works Department, the activity connected with the execution of the Kadana Dam Project, became the business or trade activity of the State Government and the activity of the Public Works Department is ordinarily the activity of putting up construction, may be roads, may be canals, may be embankment, may be dam. Once it became the activity of the State Government, and in order to carry out this activity, it engaged a contractor, the contractor was engaged for execution of the work, which was ordinarily part of the business activity of the principal. The principal wanted to build a dam, and it is the business activity of the principal. The principal employed a contractor to carry out part of the construction of the dam work which was business activity of the principal. It does appear that the principal, namely, the State Government through its Public Works Department undertook the activity of construction of a dam in exercise of its sovereign function. The principal employed a contractor to carry out part of the construction of the dam work which was business activity of the principal. It does appear that the principal, namely, the State Government through its Public Works Department undertook the activity of construction of a dam in exercise of its sovereign function. But once it decided to perform the duty of carrying out its sovereign function. But once it decided to perform the duty of carrying out its sovereign function, it became the business activity of the Public Works Department through which it decided to construct the dam, and section 2(2) would be attracted. It is universally known that the Public Works Department entrusts its business activity or part of it to a contractor. 22. Having, therefore, examined the case both on principle and authority, it is crystal clear that once the State Government decided to exercise its power of building a dam, through its Public Works Department, acting on behalf of the Government, activity for construction of the dam would be its trade or business activity but more especially business activity. It is not necessary in this connection to cut down the meaning of `business by referring to `trade which precedes it, as was sought to be urged. Both the words have been advisedly used in their wider connotation, and once construction of dam becomes business activity of the Public Works Department, as it is undertaken through that department, one has to ascertain what are the ordinary activities of the Public Works Department. Construction of all sorts of work indisputably is the ordinary activity of the Public Works Department and once such ordinary activity was sought to be carried out through the contractor. Therefore, all conditions for attracting section 23 are satisfied and the Executive Engineer has been rightly held liable for the compensation claimed by the original applicants. 14. In a case reported in 1973 Lab IC 618 it has been held that a Company, carrying on business of building construction had engaged a contractor for transporting building material to the site and the contractor had engaged services of a labourer who died during the course of work, is the employer and the labourer is workman within the ambit and scope of the Act. 15. 15. Keeping in view the above said ratio and the definition of employer given in Section 2(e) of Workmens Compensation Act, I am of the considered view that if a contractor executes the work of Government and engages a labourer in order to do something on site, the said person is workman and the State is the employer in terms of the provisions of Workmens Compensation Act. 16. Viewed thus, I am of the considered view that trial court after appreciating the evidence has rightly passed the award. 17. In view of the above discussion, appeal merit to be dismissed which is accordingly dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated.