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2006 DIGILAW 806 (MP)

State of M. P. v. Dharmadevdas

2006-07-04

A.K.GOHIL, SUBHASH SAMVATSAR

body2006
JUDGMENT Gohil, J. -- 1. Appellant State has filed this appeal under section 30 of the Workmen's Compensation Act, 1923 challenging the award dated 1.2.2000 passed by the Commissioner for Workmen's Compensation, Gwalior in Case No. 7/WCA/1996 (Fatal). 2. Brief facts of the case are that one Makravada Dam situated at Guna belongs to the appellant State of the Fisheries Department. The State has given the said dam on royalty basis to respondent No. 3 for fishing purposes. One Mithilesh was employed by the said contractor for fishing purposes. On 5.2.1995 when the deceased was involved in fishing activities in the said dam, the boat turned turtle and the deceased drowned and thereafter, parents of the deceased filed a petition before the Commissioner for Workmen's Compensation claiming compensation. The Commissioner found that the accident took place during the course of the employment, therefore, the respondents are jointly and severally liable for payment of compensation and awarded compensation of Rs. 83,192/along with six percent interest and fifty percent penalty thereon against which State has filed this appeal under section 30 of the Workmen's Compensation Act, 1923 (hereinafter, referred to as the 'Act'). 3. Appeal under section 30 of the Act can only be filed when substantial questions of law are involved in the appeal. We have perused the substantial questions of law framed by the appellant and according to us only substantial question of law involved in the appeal is whether the relationship of employer and employee is established between the appellant State and the deceased and whether the appellant State is liable for payment of compensation. 4. On the aforesaid question of law, we have heard learned counsel for the parties and perused the evidence on record. We have also perused the findings recorded by the Commissioner for Workmen's Compensation Act. The Commissioner has recorded a finding that the deceased was employed by respondent No.3 who was an agent of the appellant State and he died during the course of employment. He was employed for fishing purposes and he died during the course of employment. 5. Shrimati Ami Prabal, Deputy Advocate General submitted that the State is not liable as the Government does not come within the purview of "employer" or "managing agent" as defined under section 2 (1) (e) and 2 (1) (f) of the Act. 6. In reply learned counsel for the respondent supported the award. 7. 5. Shrimati Ami Prabal, Deputy Advocate General submitted that the State is not liable as the Government does not come within the purview of "employer" or "managing agent" as defined under section 2 (1) (e) and 2 (1) (f) of the Act. 6. In reply learned counsel for the respondent supported the award. 7. For ready reference, both the definitions are reproduced below: ""employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased 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 apparenticeship, means such other person while the workman is working for him. "managing agent" means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business, but does not include an individual manager subordinate to an employer." From bare reading of the aforesaid definitions, it is clear that the definition of "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased 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. According to the definition of "managing agent", it means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business, but does not include an individual manager subordinate to an employer. 8. Reading of these two definitions, makes it clear that respondent No.3 was the contractor and he employed the deceased for the purposes of fishing. The contract was given for fishing purpose by the Department on royalty basis. The word "Royalty" has been defined by the Full Bench of the Gauhati High Court and as per Justice Hansaria, J., as he then was, defined generally, Royalty means a share of the produce or profit reserved by the owner for permitting another to use the property'. (See Baghmari Tea Co. Ltd. v. Divnl. Forest Officer, reported in AIR 1989 Gauhati 90). (See Baghmari Tea Co. Ltd. v. Divnl. Forest Officer, reported in AIR 1989 Gauhati 90). Primary purpose of the Department is also to regulate fishing activities in the State as well as the auction tanks for fishing purposes under the contracts either on royalty basis or on some other terms and conditions. It is an admitted position on record that the appellant Department is engaged in the business and trade activities and for that purpose contract was given to respondent No.3. Therefore, the Department will come within the purview of "Principal Employer" and the contractor will come within the purview of "employer and agent" of the Principal employer and if the contractor engages services of other persons to execute the work, then the appellant being the Principal employer shall also be liable for the compensation. Therefore, from the aforeaid definitions it is clear that status of the appellant is of Principal employer and being the Principal employer is liable for payment of compensation. It is not the case in which lease was granted like mining or other leases where only contractors are made liable. Thus, we hold that the finding recorded by the Commissioner for Workmen's Compensation holding the appellant and respondent No.3 jointly and severally liable for payment of compensation does not call for interference. We answer the question accordingly. 9. No other substantial question of law is either raised or involved in the appeal. 10. In view of the above, the appeal filed by the appellant State being· devoid of any merit and substance is dismissed.