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2009 DIGILAW 608 (JK)

Union Of India v. State

2009-12-04

MOHAMMAD YAQOOB MIR

body2009
1. In order to put the record straight and in view of the position of the deceased Porter being "Workman" as settled by this Court in the judgment rendered in CIA No. 127/2004 captioned Union of India and Ors v. State of J&K and Ors, the petition with the consent of learned counsel for the parties is taken up for final disposal at its admission stage. 2. Judgment dated 22.9.2007 passed by Commissioner under Workmens Compensation Act, 1923 in the case titled Taj-ud-din Khan v. Union of India & Ors, is sought to be quashed. 3. The judgment passed in ex-parte on 22.9.2007 has not been challenged before the appellate authority as permissible under Section 30 of Workmens Compensation Act, obviously for the reason of being late in initiating action against the judgment. Realizing the rigour of applicability of the Limitation Act, the petitioners have chosen to invoke the writ jurisdiction of this Court. 4. The important question which has been raised and around which entire controversy revolves is as to whether "Porter" is covered by the definition of "Workman" as defined under Workmens Compensation Act but before determining the said controversy, it shall be quite relevant first to notice precisely the facts: 5. A 20 year old boy, namely, Nasrullah Khan (son of respondent No.2) admittedly was employed by 26 Madras Ex 268 Inf. Bde. 396 Fd. Coy of 260 Engineering Regiment. The said deceased one among 13 Porters was doing fencing repairs in line of control. On 28th of June, 2005, while moving from ten Baikha to Shalabhato, they came under terrorist firing. In the exchange of fire said boy sustained injuries and died on spot. 6. The position of the deceased having been employed and the position of his death in the employment of the petitioners is admitted. Now the question is as to whether the claim petition of his father (respondent No.2) before the Authority under the Workmens Compensation Act was tenable on the count of deceased Porter being "Workman" as defined under Section 2 (1) (n) of the Workmens Compensation Act, same stand already dealt with in the judgment captioned Union of India & Ors. v. State of J&K and Ors passed in CIMA No. 127/2004 dated 7.3.2009 as one of the identical question arose for consideration. v. State of J&K and Ors passed in CIMA No. 127/2004 dated 7.3.2009 as one of the identical question arose for consideration. Para 5 of the said judgment is reproduced herein-below:- "The position of the deceased porters being workmen as defined under Section 2(1)(n) of the Workmens Compensation Act is further supported by the communication bearing No. 45332/2/MP-4(civ)(d)/l 90/ 07/D(civ) Government of India, Ministry of Defence New Delhi, dated O9.O4.2007, copy of which has been placed on record wherein it is shown that the porters and Drivers of Civil owned animals(Yak/ Pony/ Donkey and Mule) are to be governed by the terms and conditions for the purpose of compensation under Workmens Compensation Act subject to certain limit. It clearly indicates that the porters are the workmen so are entitled to the compensation under the Workmens Compensation Act irrespective of the maximum of Rupee two lakhs as incorporated in the communication." 7. Applying the said ratio to the present case, the contention of the counsel for the petitioners that Porter is not a Workman is answered in negative as the porter falls within the definition of "Workman" as defined under Section 2(1)(n) of the Workmens Compensation Act. 8. The next contention raised is that as per Section 3 of the Act, compensation is allowable only when a person is "Workman" and the death has occurred in the course of employment. 9. This contention is answered by the petitioners themselves as in para 3(i) of the petition it is specifically pleaded that the deceased (porter) was employed and he died in the course of employment when he was working in connection with fencing repairs in the line of control, so death during the course of employment is not open to challenge as per the own admission of the petitioners. 10. The next contention is raised to the effect that the Authority under Workmens Compensation Act has passed the award without recording reasons and without discussing the statements of the witnesses. 11. This argument on the face of it has no basis because when it is admitted that the deceased (porter) was an employee and died during the course of employment, no evidence was required to be discussed vis-a-vis the said factual position. 11. This argument on the face of it has no basis because when it is admitted that the deceased (porter) was an employee and died during the course of employment, no evidence was required to be discussed vis-a-vis the said factual position. Additionally under Workmens Compensation Act, which is a beneficial piece of legislation extending full protection to the "Workman", recording of judgment is not required to be at par with the judgment recorded by the Civil Court, still the Authority concerned has recorded that on the face of record there is no dispute about the accident having occurred during and in the course of employment on 28.6.2005. 12. Next it is contended that the next kin of the deceased has received ex-gratia relief, after accepting the same, petition for compensation under Workmens Compensation Act should not have been entertained. 13. This contention is not supported by any law i.e. learned counsel has not been able to show any law which prohibits the kin of the deceased in claiming compensation in addition to the ex-gratia relief paid to him because the compensation is awardable irrespective of the limit of ex-gratia relief. Learned Authority after having taken note of all the factual aspects has worked out the amount of compensation strictly while adhering to Section 4(a) read with Schedule IV of the Workmens Compensation Act, 1923. The compensation awarded to the tune of Rs.3,11,970 is quite reasonable. After all a young boy of 20 years of age has been deprived of enjoying so many summers of his life and the respondent father has also been deprived of a young son. That position cannot be measured in terms of money and any amount of compensation shall be too less. To hold it reasonable is because it is strictly awarded as per the structured formula prescribed by Schedule IV of the Workmens Compensation Act. 14. The awarded amount has been deposited by the petitioners in the Registry of this Court, same shall be released in favour of the respondent No.2 after proper identification. 15. In view of stated position, petition fails so is dismissed.