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Madhya Pradesh High Court · body

2010 DIGILAW 110 (MP)

RAJSHREE MINERALS v. KARMAVIR SINGH

2010-01-27

SANJAY YADAV

body2010
Judgment Sanjay Yadav, J. ( 1. ) Challenge in the present appeal filed under Section 30 of Workmens Compensation Act, 1923 is to award dated 20,2.2007, whereby, the Commissioner Workmens Compensation has allowed the application under Section 22 and awarded compensation of Rs.2,40,972/- inclusive of the interest and penalty in lieu of death of one Afsar Ali. ( 2. ) The appeal was admitted on the following substantive question of law: "Whether the learned Commissioner for Workmen Compensation- Labour Court, Sagar committed grave error in holding the decased Afsar Ali to be a workman defined under Section 2 (1) (n) of the Workmen Compensation Act, 1923. If so, its effect." ( 3. ) The facts briefly are that deceased Afsar Ali during the course of his employment wherein he was detailed to carryout the work of construction of sheds/quarters for the employees M/s Rajshree Minerals and Chemicals Pvt. Ltd, the appellant herein, on 13.11.2002 fell down from the wall and succumbed to injuries. The legal representative of the said deceased, respondent herein, filed a claim petition before Commissioner, Workmens Compensation for an amount of Rs.3,27,705/- on the anvil that the death was in course of and arising out of employment. The claim was duly contested by the appellant herein on the ground that said Afsar Ali was not the workman and the death was not arising out of and in course of employment. ( 4. ) The claimant in support of his case examined herself and one of the co- worker Anisa (AW 2) who in her deposition categorically stated that Afsar Ali was engaged for the purpose of construction of building/quarters for the workers and was engaged for welding purpose. She further stated that on 13.11.2002 at about 10.30 a.m. when said Afsar Ali was carrying out the welding work, fell down from the wall and later on he died due to the injuries sustained. The fact that Afsar Ali was working for the Rajshree Minerals and Chemicals is also borne out from the statement of Abdul Rehman (N.A.W 1) who stated that, Afsar Ali worked as a Helper on the said date. Furthermore, A.W. 2 and A.W. 3 (Mukesh Jain) the owner of factory also admitted the fact that Afsar Ali was engaged for welding purpose. ( 5. Furthermore, A.W. 2 and A.W. 3 (Mukesh Jain) the owner of factory also admitted the fact that Afsar Ali was engaged for welding purpose. ( 5. ) Commissioner, Workmens Compensation taking into consideration the entire evidence on record and holding that Afsar Ali was a workman and died due to accident arising out of and in course of his employment awarded a compensation of Rs.2,40,972/- including the interest. ( 6. ) Questioning the legality of the award, it is contended by learned counsel for the appellant that merely because Afsar Ali was engaged to carry out some construction work, will not itself be sufficient unless criteria as is prescribed under the Act of 1923 and schedule therein are fulfilled. ( 7. ) To substantiate his submission, learned counsel for the appellant, placing reliance on evidence of various witnesses submits that, Afsar Ali fell down from the height of 8 feet and succumbed to the injuries. It is contended that unless a person engaged for the construction work of any building which is designed to be or is or has been more than one story in height above the ground or 12 or more from the ground level of the Apex of the roof cannot be construed as workman under 1923 Act. It is contended that the above condition having not been fulfilled the Commissioner, Workmens Compensation fell into patent error in holding that workman was a workmen under the Act of 1923. It is urged that the Commissioner, Workmens Compensation lost sight of the fact that Afsar Ali fell down from the height of 8. It is, therefore, contended that there being a perversity of finding the award is liable to be set aside. ( 8. ) Learned counsel appearing for respondents, however, submits that there is no evidence on record that the construction work wherefor Afsar Ali was engaged was designed to the height of 8 only. It is contended that the servant quarters were being constructed and the services of Afsar Ali was taken for the purpose of Welding of iron pipes at roof level. It is contended that the Tribunal, therefore, did not commit any error in holding that Afsar Ali was a workman. ( 9. ) Considered the rival submissions and perused the record. It is contended that the servant quarters were being constructed and the services of Afsar Ali was taken for the purpose of Welding of iron pipes at roof level. It is contended that the Tribunal, therefore, did not commit any error in holding that Afsar Ali was a workman. ( 9. ) Considered the rival submissions and perused the record. Section 2 (1) (n) defines Workmen in the following terms: (n) "workman" means any person who is - (i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ia) (a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. ( 10. ) Sub-clause (ii) of clause (n) of Sub-section 1 of Act of 1923 stipulates that workman would be a person employed in any such capacity as is specified in Schedule II. In the instant case admittedly Afsar Ali was engaged for the construction purpose. ( 10. ) Sub-clause (ii) of clause (n) of Sub-section 1 of Act of 1923 stipulates that workman would be a person employed in any such capacity as is specified in Schedule II. In the instant case admittedly Afsar Ali was engaged for the construction purpose. As such Clause 8 of Schedule II would be attracted which stipulates: "(viii) employed in the construction, maintenance, repair or demolition of - (a) any building which is designed to be or is or has been more than one story in height above the ground or twelve feet or more from the ground level to the apex of the roof; or (b) any dam or embankment which is twelve feet or more in height from its lowest to its highest point; or (c) any road, bridge, tunnel or canal; or (d) any wharf, quay, sea-wall or other marine work including any moorings of ships;" ( 11. ) Sub clause (a) of clause (VIII) of Schedule II thus requires that building in which a person is employed for the purpose of construction, maintenance, repair or demolition must be designed to be or is or has been more than one story in height above the ground or twelve feet or more from the ground level to the apex of the roof. ( 12. ) In the case at hand, clear it is from the evidence on record that the staff quarters were being constructed and for that the structural work was in progress wherein Afsar Ali was engaged for the purpose of Welding, The appellant employer has not brought on record the design of the quarter which were being constructed as would have justified the stand that Afsar Ali was not a workman under Section 2 (1) (n) of the Act of 1923 and the Schedule II there under. ( 13. ) The claimant having discharged the onus of proof regarding Afsar Ali being engaged for the construction work, the burden of proof was shifted on the appellant employer. The Supreme Court while noting distinction between burden of proof and onus of proof in A. Raghavamma and another v. A. Chenchamma and another ( AIR 1964 SC 136 ) was pleased to observe: "(12).............. The Supreme Court while noting distinction between burden of proof and onus of proof in A. Raghavamma and another v. A. Chenchamma and another ( AIR 1964 SC 136 ) was pleased to observe: "(12).............. There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgment, of the lower Courts, therefore, only pertains to the domain of appreciation of evidence. We shall, therefore, broadly consider the evidence not for the purpose of revaluation, but to see whether the treatment of the case by the Courts below is such that it falls in the category of exceptional cases where this Court, in the interest of justice, should depart from its usual practice." ( 14. ) In the case at hand since the appellant has failed to prove that the construction/building wherein the workman was engaged was designed to be or has been less than one story in height above the ground or less than 12 feet the Tribunal, therefore, did not err in holding that Afsar Ali was a workman. ( 15. ) In the result appeal fails and is hereby dismissed. Appeal dismissed.