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2014 DIGILAW 767 (DEL)

Raj Vidya Kender v. Mohan Lal Maurya

2014-03-05

VALMIKI J.MEHTA

body2014
Judgment : Valmiki J. Mehta, J. (Oral) 1. Respondent has been served way back for 11.9.2013. Today we are in March, 2014 i.e. six months after. An adjournment is asked for on behalf of the respondent for reading the case file. I refuse to grant the same, inasmuch as, it is necessary that counsel must not seek adjournment only for convenience on the ground that they are not prepared although they had sufficient time. This attitude is responsible for unnecessary pendency in courts. Besides, the facts of this case as stated below will show that the prayer for adjournment is not benign. 2. This first appeal is filed by the appellant (alleged employer) against the impugned order of the Commissioner dated 25.7.2013 which has allowed the claim petition filed by the respondent under the Employee’s Compensation Act, 1923. 3. The case as put up by the respondent was that he was appointed by the appellant since October, 2004 for doing flour kneading work and on 2.12.2004, at about 9.30 a.m when he was working on an electronic machine of flour kneading on the directions of Sh. Palaiji Junior of Sh. Prakashnandji, the respondent met with an accident as his right hand came under the machine. It is pleaded that respondent would not have worked on the machine unless there was pressure put by Sh. Palaiji Junior and Prakashnandji. On account of the accident allegedly arising out of and in the course of employment the claim petition was filed. I may note that the period of limitation for filing of a claim petition is two years as per Section 10 of the Act, and since the accident happened on 2.12.2004, the claim petition had to be filed ordinarily on or before 2.12.2006, but the claim petition was filed on 5.5.2008 i.e after a delay of over one year and five months. 4. The Commissioner has allowed the claim petition by holding that there is a relationship of employer and employee and that the accident took place on account of the respondent working in the course of his employment. 5. Before me, counsel for the appellant has urged that respondent was only a Sewak and not an employee, much less a paid employee. The Commissioner has allowed the claim petition by holding that there is a relationship of employer and employee and that the accident took place on account of the respondent working in the course of his employment. 5. Before me, counsel for the appellant has urged that respondent was only a Sewak and not an employee, much less a paid employee. Respondent was specifically directed not to work on any electronic machine without supervision, but he did so in spite of instructions to the contrary and which consequently caused him injury. Reliance is placed on behalf of the appellant/employer which is a nonprofit making society, upon Section 3(1) proviso (b) (ii) of the Act that where there is a willful disobedience and thereafter the employee suffers an accident, the employer (assuming the appellant to be an employer) cannot be held liable. Counsel for the appellant also argues that the Commissioner has wrongly held that the appellant had not raised any pleading of respondent having been directed only to work on an electronic machine with supervision inasmuch as in para 4 of the reply on merits of the counter-affidavit of the appellant this aspect is specifically stated and this fact was also categorically proved as per para-9 of the affidavit filed by the witness of the appellant namely Sh. Vijendra Singh. Para-4 of the reply on merits and para-9 of the affidavit by way of evidence filed on behalf of the appellant read as under:- Para-4 of the Reply “That the contents of this para are wrong and denied. It is submitted that the petitioner’s only aim to stay with the respondent was for free food and accommodation and since he was not showing any interest in performing any duties assigned to him as a sewak, he was kept as a helping man in the kitchen as per this request and was given strict instructions to not operate any machine without anybody supervision. However, the petitioner while fiddling with the flour kneeding machine switched on the motor when no body was around which led to the accident.” Para 9 of the affidavit by way of evidence “That it is reiterated that there was never an employee-employer relationship between the Petitioner and the Respondent. The Petitioner was never appointed as a sweeper by the Respondent. The Petitioner was never paid any salary either as claimed or otherwise. The Petitioner was never appointed as a sweeper by the Respondent. The Petitioner was never paid any salary either as claimed or otherwise. There was no employer-employee relationship between the present parties and the issue of appointment letter does not arise at all. Since the Petitioner was not doing any duties assigned to him diligently, he was assigned the job of a helping hand in the kitchen as per his request. The Respondent did not specifically engage him for flour kneading work as claimed. In fact the Petitioner’s only aim to stay with the Respondent was for free food and accommodation and since he was not showing any interest in performing any duties assigned to him as sewak, he was kept as a helping man in the kitchen as per his request and was given strict instructions to not operate any machine without anybody supervision. However, the Petitioner while fiddling with the flour kneading machine switched on the motor when nobody was around which led to the accident.” 6. Learned counsel for the appellant argues that there would be grave injustice upon the appellant which is a nonprofit making society if the illegal actions of the respondent in seeking unjustified compensation under the Act are permitted to cause huge monetary loss to the appellant of a sum of Rs.2,40,527/- alongwith interest at 12% per annum simple from 1.1.2005. 7. It is also argued on behalf of the appellant that no doubt provision for condonation of delay should be read liberally, however, the sufficient cause which is given has to be carefully examined once there is a delay not only of few days or few weeks or few months but delay is of as many as two years and five months, otherwise the whole purpose of providing a limitation period will be lost and vested rights which are acquired on expiry of limitation will be lost. 8. In my opinion, the contentions as raised on behalf of the appellant have merit and need to be accepted. Firstly, the Commissioner was wholly unjustified in holding that the appellant had raised no pleading of the respondent having been directed not to work without supervision on an electronic machine. The relevant para of the pleading of the appellant before the Commissioner as also the relevant para of the affidavit by way of evidence have already been reproduced by me above. The relevant para of the pleading of the appellant before the Commissioner as also the relevant para of the affidavit by way of evidence have already been reproduced by me above. There is no reason for me to disbelieve this stand of the appellant inasmuch as the prior paras of the pleadings show that the appellant had found that the respondent herein was neither willing to learn any work nor he was showing any interest but was very casual in his approach. The respondent was allowed to stay with the appellant as a sewak only because of his circumstances that he was a family man and was being trained. Appellant has specifically pleaded the casualness with which the respondent used to do work, and which aspect is reiterated in the affidavit by way of evidence filed on behalf of the appellant by Sh. Vijendra Singh. 9. Accordingly, once the respondent has worked in spite of specific instructions to the contrary, hence in terms of Section 3(1) proviso (b) (ii) of the Act only he is solely responsible for his illegal conduct, and the appellant-non profit making society cannot be burdened with liability of lacs of rupees. 10. I also hold that the Commissioner has erred in holding that there is a relationship of employer and employee, inasmuch as, the appellant has specifically pleaded that at no point of time respondent was ever employed and never any payment of any nature whatsoever was made to the respondent because the respondent was only a sewak and he was taken in the Ashram for giving him training and in fact free boarding and lodging was also provided. I agree with this contention of the appellant that there was no relationship of employer and employee because respondent has failed to prove that any payment whatsoever in the nature of salary or that any other payment was made by the respondent to the appellant. 11. Also, in my opinion, there was no ground of condonation of delay of a long period of one year and five months in filing of the claim petition because if the case of the respondent was that because of illiteracy and poverty he could not approach the Commissioner in time, this was a ground which was available within even two years of limitation for filing of the claim petition. No facts have been pleaded and proved to show as to efforts made by the respondent within the period of two years or immediately and thereafter for availing of legal process and that he could not do so only on account of his illiteracy and poverty. Therefore, a self serving statement of illiteracy and poverty cannot help the respondent to get a delay of over one year and five months condoned in the facts of the present case because circumstances before two years and after two years remain the same without any change and no specific endeavours of seeking benefit of judicial process/legal process was pleaded and proved by the respondent as not being available within two years. 12. In view of the above, the appeal is allowed, and the impugned order of the Commissioner dated 25.7.2013 is set aside. Parties are left to bear their own costs. 13. The amount which is deposited by the appellant before the Commissioner be released to the appellant alongwith accrued interest thereon if any and which be done by the Commissioner within a period of four weeks from receipt of a copy of this judgment.