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2021 DIGILAW 126 (ORI)

Vice Chancellor, Rabindra Bharati Biswabidyalaya, 56-a, Bt Road, Kolkata v. Jagannath Patra

2021-03-16

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath,J. - This is an appeal at the instance of the employer under Section 30 of the Workmen's Compensation Act, 1923 arising out of judgment passed by the Asst. Labour Commissioner-cum-Commissioner for Workmen's Compensation, Bhubaneswar in W.C. Case No.134 of 2014. 2. Short background involving the case is that legal heirs of the deceased employee filed a case under Employees Compensation Act claiming appropriate compensation for death of the deceased Susanta Patra in course of his duty as a cook in Dr.B.R.Ambedkar Boys Hostel at about 6 P.M on 18.05.2015. It is claimed that while the deceased was pouring hot dal, suddenly his leg slept and he fell down on the Dal Karai and got burnt. Immediately after the accident, he was shifted to the R.G. Kar Hospital for treatment by the help of the students and staff of the Hospital. After 7 days of the incident, on 25.05.2013 at about 10.45 P.M. the treating physician declared him to be dead. A criminal case was instituted by Tala Police Station vide No.525 dtd. 26.05.2013 and P.S. G.D.E. No.2066 dtd.26.05.2013 and Baranagar P.S. G.D.E. No.2345 dtd. 26.05.2013. Vide P.M.No.944 dtd.26.5.2013, postmortem was also conducted on the dead body. The claimants claiming the deceased was 31 years old and was the only earning member of their family, for them sustaining heavy and irreparable loss due to sudden and unexpected death of their sole bread earner, the applicants under the premises that the deceased was getting a sum of Rs.6,000/-per month from the Hostel Superintendent working as a cook in the hostel under the employment of the University, claimed Rs.8,00,000/- as compensation. 2. On receipt of notice, the opposite parties, the present appellants appeared and filed their written statement stating that the deceased was never an employee of Rabindra Bharati Biswabidyalaya in any capacity either as a full time worker or part time or casual or on daily basis or in any other capacity. It is rather claimed by the appellants that the hostel of Rabindra Bharati Biswabidyalaya for boys was running by different vendors, who are given contract to run the hostel from time to time on contractual basis and the Biswabidyalaya is only the signatory in the contract with the vendors and therefore it is claimed that they have no liability in such issue. 3. 3. To establish their case, the claimants have filed the copies of the investigation report regarding the particulars of employment of the deceased, nature of work and circumstances leading to the death of the deceased. Postmortem report, salary slip and some medicine bills were also filed. This apart, the claimants have also examined P.W.1 as one of the witnesses appearing to be father of the deceased. Entering into contest, the appellants-respondents therein contested the case by filing written statement. They also adduced evidence by producing one Balaram Majumdar, who was claimed to be working in the said hostel as Hostel Superintendent and was present at the time of such occurrence as OPW.1. On the basis of claim and counter claim, the Commissioner framed the following issues: 1. Whether the deceased was an employee within the meaning of E.C. Act and working under the Opp. Parties at the time of his accident? 2. Whether the accident arose out of and in course of the applicants employment? 3. Whether the amount of compensation as claimed by the applicants is due, or any part thereof? 4. Whether the Opp. Parties are liable to pay such compensation as is due? If yes, by whom payable. 4. Basing on the materials available on record, the Commissioner came to hold all the issues in favour of the claimants and as a consequence by the final judgment directed the opposite parties, the present appellants to pay compensation a sum of Rs.6,17,850.00 in lump sum and without any interest. It was also directed that failure of deposit of the awarded sum within 30 days from the date of receipt of the order, penalty and interest @ 12% shall also be imposed. 5. Challenging the judgment passed by the Asst. Labour Commissioner-cum-Commissioner for Workmen's Compensation, Odisha, Bhubaneswar in W.C. Case No.134 of 2014, Sri Asok Mohanty, learned Senior Advocate while reiterating the grounds of challenge in the memorandum of appeal submitted that for the employee involved herein was engaged by the contractor, there was no liability with the institution. For there being no establishment by the claimants as to under which contractor the deceased was working, Sri Mohanty, learned Senior Advocate contended that the judgment impugned becomes bad. Sri Mohanty, learned Senior Advocate also challenging the impugned judgment on the premises that there was no employer & employee relationship. For there being no establishment by the claimants as to under which contractor the deceased was working, Sri Mohanty, learned Senior Advocate contended that the judgment impugned becomes bad. Sri Mohanty, learned Senior Advocate also challenging the impugned judgment on the premises that there was no employer & employee relationship. It is also claimed that the deceased cannot be considered as a workman for his nature of work. The impugned judgment was also contested on the premises that the award is not only excess but also exorbitant and therefore computation without any basis. Mr. Mohanty, learned Senior Advocate during course of submission also raised a legal point taking resort to the definition of Manufacturing Process under the Factories Act, 1948 and claimed that the definition having not been extended to the State of West Bengal, where the accident occurred, the impugned judgment also suffers for the claim of the petitioner not being covered under the definition of Manufacturing Process under Section 2 k of the Act, 1948. Taking this Court to the definition of the amendment submitted definition not covering the State of West Bengal involving cause of action involved herein, Sri Mohanty, learned Senior Advocate contended that the impugned judgment remains otherwise bad in law. 6. Sri S.Das, learned counsel appearing for the Claimant Nos.1 and 2 while reiterating the plea of the claimants before the Commissioner, referring to Section 2 (1) (dd) of the Employee's Compensation Act, 1923 contended that the claim was made on the premises of the deceased being an employee and therefore it remains immaterial whether he was a cook or anything else. For the word workman has the definite meaning under the Act, 1923, the case of the claimants is well covered. Adverting to the claim of Sri Mohanty, learned Senior Counsel that the deceased does not satisfy to be involved in a Manufacturing Process as defined under (k) of the Section 2 of the Factories Act, 1948, referring to two decisions in the cases of Idandas Vs. Anant Ramchandra Phadke (Dead) by Lrs., 1982, AIR (SC) 127 and Commissioner of Income Tax, Gujarat Vs. Ajay Printery Private Ltd.,(1965) 58 ITR 811, Sri Das, learned counsel however attempted to extend the coverage of the judgment referred to hereinabove to the case of the claimants. 7. Anant Ramchandra Phadke (Dead) by Lrs., 1982, AIR (SC) 127 and Commissioner of Income Tax, Gujarat Vs. Ajay Printery Private Ltd.,(1965) 58 ITR 811, Sri Das, learned counsel however attempted to extend the coverage of the judgment referred to hereinabove to the case of the claimants. 7. Considering the rival contentions of the parties and going through the materials available on record, this Court finds there is no dispute that there is an accident involving the death of the cook-the deceased here while working in a hostel involving food preparation. He was also at the age of 31 years hardly on the date of incident. This Court noticed here through the evidence of OPW.1 functioning as Hostel Superintendent at the relevant point of time, who in his deposition, while admitting to be the Superintendent of Dr.B.R. Ambedkar Boys Hostel where the deceased was working as a cook since last four and half years. He admitted that the deceased was working in the hostel in the capacity of cook. He also admitted that on 18.05.2013 the deceased after cooking the Dal while keeping the Dal Karai on the floor, he got slept on the floor and suddenly fell down into the Dal Karai. The Superintendent has also admitted the death of the deceased in such process. In the cross examination the Superintendent by the appellants also appears to have stated that he had also admitted that the deceased Sri Patra was working since last 5 years. It is in the premises, there remains no doubt that the deceased was a worker in an University and there also remains master & servant relationship between the both. It is in this contest of the matter, this Court has no hesitation to conclude that the deceased was a worker at the relevant point of time and is well covered by the provisions under the Employees Compensation Act, 1923. For Sri Mohanty, learned Senior Advocate concentrating on the death of employee not involving in any manufacturing process under the definition of Factories Act, 1948, this Court on scan of the judgment referred to by the counsel for the respondents though finds both the judgment stand on different footing but however finds through the decision in the case of Bombay Anand Bhavan Restaurent Vs. Deputy Director, Employees' State Insurance Corporation & another, with another similar case, (2009) 9 SCC 61, the Hon'ble Apex Court held cooking and preparation of food item clarifies manufacturing process. Similarly, through the decision involving 1994 LIC 1213, it has been observed supply of food and breveries to a cricket club must be a sale to its guest and well covered by definition of manufacturing process. In case of Kanwarji Bhagirathmal Vs. Employees State Insurance Corporation, (2005) 118 DLT 759 , it has been observed that the act of Halwai in making of sweetmeats and salted eatables in his shop also involves manufacturing process. For the argument of the claimants that the deceased died while working under the University, being clearly corroborated by the University's own witness OPW 1, who is none else than the Superintendent working at the relevant date in the Hostel, this Court finds, there is right consideration of the issue involved by the Commissioner in deciding W.C. Case No.134 of 2014 leaving no scope for this Court to interfere in the impugned judgment, which is hereby confirmed. For the amount already kept in fixed deposit by order dated 14.10.2015 passed in Misc. Case No.795 of 2015, the deposited amount along with accrued interest be released in favour of the claimants forthwith. Further, this Court since finds the impugned judgment was passed on 31.7.2015 with a direction to deposit the amount within 30 days provided the compensation has not been deposited within 30 days from 31st July, 2015, the claimants are entitled to penalty and interest @ 12% per annum from expiry of 30 days i.e. from 31st July, 2015 till 30th September, 2015. 8. Appeal fails but, however, no costs.