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2021 DIGILAW 71 (ORI)

Bansidhara Behera v. Mahadei Sahu

2021-02-18

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath,J. - Since all the appeals indicated hereinabove arise out of a common judgment dated 12.09.2013 involving W.C. Case Nos.4 of 2010 and 5 of 2010 passed by the Commissioner for Employees Compensation, Berhampur, Ganjam and require a common hearing and disposal, the same are taken up together for hearing and disposed of vide this common judgment. It be mentioned here that FAO Nos.432 & 433 of 2013 are at the instance of the owner, whereas FAO Nos.482 & 483 of 2013 are at the instance of the claimants involving same judgment. 2. Undisputed fact remains that the claimants being the wives of deceased persons involving W.C. Case Nos.4 of 2010 and 5 of 2010. On the premises of death of their husbands on drowning of a boat, in which, both the deceased persons were alleged to have moving on the direction of alleged employer/opposite party to attend the work. Involving the death for drowning of the boat, making out a case of employeremployee relationship and that the death has arisen in course and out of employment, W.C. cases were filed seeking appropriate compensation. There appears there is contest in between all these parties. 3. Assailing the impugned judgment on behalf of owner, Sri Das, learned Senior Counsel however taking this Court to the discussion and findings on Issue No.1 submitted that for there was statement of opposite party involving both the cases that there is no master and servant relationship, the accident cannot have any attachment to the opposite party in the proceeding before Commissioner. It is alleged that the Commissioner, however, taking into account 161 statement involving criminal case in involvement of same incident, has come to opine that there is employer-employee relationship and the accident has also a link in course of work and arising out of work. It is alleged that it is in the above wrong finding on the basis of 161 statement, the Commissioner has also come to hold that the claimant's involving both proceedings are entitled to a sum of Rs.1,23,360/- and 1,39,312/- respectively by way of compensation, which required to be paid by owners/appellants. 4. It is alleged that it is in the above wrong finding on the basis of 161 statement, the Commissioner has also come to hold that the claimant's involving both proceedings are entitled to a sum of Rs.1,23,360/- and 1,39,312/- respectively by way of compensation, which required to be paid by owners/appellants. 4. Sri Behera, learned counsel appearing for the claimants, on the other hand, taking this Court to some of the recordings of the Commissioner, more particularly, at page-9 of the judgment, contended that there is admission of the opposite party to the extent that the deceased-husbands of the applicants were working as labourers under the opposite party for building construction work and on 18.08.2008 while they were shifting from Luniyapada to Bhaliyamala through a boat by crossing the river, the boat drowned and the death of the deceased persons has taken place. It is in this recording of the Commissioner, Sri Behera contended that there remains no doubt that there is employer-employee relationship and the death has also caused in course of and arising out of work. It is at this stage of the matter, Sri Das, learned Senior Counsel appearing for Appellant in the two appeals for Respondents in the rest two appeals bringing to the notice of this Court to M.C. No.633 of 2015 and M.C. No.634 of 2015, applications under Order 41 Rule 27 of the Code of Civil Procedure filed in both the Appeals at the instance of owner, prayed for considering the material brought through these Misc. Cases as additional evidence. Reading through the documents, Sri Das, learned Senior Counsel thus attempted to establish that there was in fact no such work involving compensation case being undertaken by the opposite party-Contractor. For the material document not available at the relevant point of time and being obtained in exercising provision under R.T.I. Act filed on immediate receipt of the documents, there is an attempt of the opposite party-employers for additional evidence in filing M.C. Nos.633 and 634 of 2015. 5. Taking into consideration that the findings of Commissioner solely rest on inadmissible evidence through 161 recordings and considering the subsequent material produced by way of additional evidence, this Court finds the document brought by way of additional evidence may be relevant in resolving the dispute. 6. 5. Taking into consideration that the findings of Commissioner solely rest on inadmissible evidence through 161 recordings and considering the subsequent material produced by way of additional evidence, this Court finds the document brought by way of additional evidence may be relevant in resolving the dispute. 6. For material relevancy by way of additional documents filed before this Court for which this Court is of the opinion that the compensation case requires fresh adjudication only undertaking the exercise on the additional documents filed herein. In the process, this Court while not delving much into the additional document and its relevancy at this stage interfering in the judgment in W.C. No.4/2010 and W.C. No.5/2010 sets aside the same and by remitting both the matters to the Commissioner, leaves it open to the Commissioner to proceed for additional evidence on the basis of new documents filed here to arrive at the finding on following issue is being framed by this Court: "For the availability of the document by way of additional evidence, the Commissioner is to ascertain whether the document has bearing on the case at hand and also to have his fresh finding on employee-employer relationship if established on accepting such document?" 7. In the process, this Court while setting aside the judgments impugned herein involving W.C. Case Nos.4 and 5 of 2010 and remits the matter back to the Commissioner for reassessment of the issue involved herein and directs the parties involved herein to bring additional written statement on introduction of new documents filed herein with service of copy on the claimants within two weeks both parties will also be at liberty to lead evidence and rebuttal, if any, lead further submission on the basis of further evidence confining to the document brought by way of additional evidence. There shall be fresh adjudication of the matter on the existing evidence and also taking into consideration the additional evidence to come in the process of adjudication on the issue framed by this Court. Fresh judgment be passed involving all parties and all issues. Both the parties are directed to appear before the Commissioner on 3rd March, 2021 along with the copy of this judgment. Fresh judgment be passed involving all parties and all issues. Both the parties are directed to appear before the Commissioner on 3rd March, 2021 along with the copy of this judgment. The amount already in deposit unless it is released shall be kept in fixed deposit and disbursement of the same shall be dependent on the ultimate outcome in the final adjudication involving W.C. Case Nos.4 and 5 of 2010. It is observed if the amount is already released, there shall be no recovery of the same following the decisions of the Hon'ble Apex Court in Om Parkash Batish Vrs. Ranjit alias Ranbir Kaur and others, (2008) 12 SCC 212 and in Central Mine Planning and Design Institute Ltd. Vrs. Rannu Pasi and another, (2006) 1 SCC 377 . 8. For the disposal of these two appeals with interfering in the impugned judgments and remitting the matters to the Commissioner, the proceeding filed in F.A.O. No.482 of 2013 & F.A.O No.483 of 2013 need not require any further orders and are disposed of in terms of the above direction. 9. For the claimants to suffer on account of remand of the matter after so many years for Appellants bringing additional evidence in High Court, this order is however subject to payment of cost of Rs.5,000/- (Rupees five thousand) to each of the claimant in court below also within two weeks.