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2024 DIGILAW 318 (HP)

Meera Devi v. State of H. P.

2024-05-06

VIRENDER SINGH

body2024
JUDGMENT : VIRENDER SINGH, J. 1. Appellants have preferred the present appeal, under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) against the order, dated 10.07.2015, passed by the Civil Judge (Senior Division), Mandi, District Mandi, H.P. exercising the powers of Commissioner, under the Act, (hereinafter, referred to as the ‘trial Court’), in W.C. Petition No. 61/2011, titled as Meera Devi and Others vs. State of H.P. and Another. 2. Vide order dated 10.7.2015, learned trial Court has dismissed the petition preferred by the appellants, under Sections 4, 19 and 22 of the Act, seeking compensation on account of the fact that the husband of petitioner No. 1 and father of petitioners No. 2 and 3, had committed suicide on the intervening night of 29.2.2004/1.3.2004, during the course of employment. 3. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 4. Brief facts, leading to the filing of present appeal, before this Court, as emerge from the record, may be summed up, as under: 4.1. Petitioners, being widow, minor daughter and son of deceased Jagdish Kumar, have filed the claim petition, seeking compensation, on the ground that their predecessor-in-interest, Jagdish Kumar had committed suicide on the intervening night of 28.2.2004/1.3.2004, on the site of work place. 4.2. Elaborating their stand, it has been pleaded that Jagdish Kumar was employed as work charge during the year 1981-82, in Sanjay Vidyut Pariyojna, Bhawa Nagar, District Kinnaur. Thereafter, he was regularized and posted as Hydro Mechanic (Foreman). During his career of 22 years, he remained posted in District Kinnaur, H.P. in Electricity Department, however, for some time, he was transferred to Kaja, District Lahaul & Spiti. 4.3. According to the petitioners, Jagdish Kumar was interested for his transfer to his home District Mandi, but, the Department did not relieve him, and kept him throughout his service, in the hard area. Not only this, the respondent-department had also forced him to work beyond his duty hours. Due to the above facts, according to the petitioners, he has taken the extreme step to commit suicide. 4.4. The information regarding the death of Jagdish Kumar was received by the petitioners and they reached on the spot, after two days. Not only this, the respondent-department had also forced him to work beyond his duty hours. Due to the above facts, according to the petitioners, he has taken the extreme step to commit suicide. 4.4. The information regarding the death of Jagdish Kumar was received by the petitioners and they reached on the spot, after two days. Till then, all the formalities were completed by the respondent- department. Postmortem examination was also conducted. At that time, nothing was revealed to them, however, later on, they came to know that Jagdish Kumar had taken the extreme step due to the fact that he was forced to work 24 hours. 4.5. In addition to this, it is the case of the petitioners that Jagdish Kumar was not permitted to meet his family members, as, his leave was not sanctioned. Since, Jagdish Kumar had committed suicide during the course of his employment, as such, they have claimed the compensation. 4.6. In order to buttress their contentions, respondents have relied upon letters dated 29.12.1999 and 6.12.1999. Age of Jagdish Kumar has been pleaded as 44 years at the time of his death and his salary is stated to be Rs. 10,845 per month. Hence, a prayer has been made to allow the petition, by granting the relief, as claimed in the petition. 4.7. Since, the petition had been filed after the prescribed period of limitation, as such, the application under Section 5 of the Limitation Act had also been moved, along with the petition. 5. When put to notice, the case, as set out by the petitioners, has been contested/ controverted by the respondents by filing reply. 6. In the reply, preliminary objections have been taken that the petition is time barred; and petition is not maintainable. 7. On merits, the employment of Jagdish Kumar with the respondent-department has not been disputed. Similarly, the stand of the petitioners qua the posting of Jagdish Kumar, in the hard area, has also not been disputed, but, according to the respondent-department, Jagdish Kumar was a trained Fitter (Hydro Mechanic) and was posted at Rong-Tong Power house at Kaza. 7.1. According to the respondents, the post of Hydro Mechanic was only two places namely Kaza and Sangla. It is their further case that Jagdish Kumar had never requested for his transfer to his native place. 7.2. 7.1. According to the respondents, the post of Hydro Mechanic was only two places namely Kaza and Sangla. It is their further case that Jagdish Kumar had never requested for his transfer to his native place. 7.2. In addition to this, the respondents have also pleaded that Jagdish Kumar was suffering from some pressure of family tension. In this regard, they have relied upon suicide note, as well as, letter written by petitioner No. 1, which was addressed to Jagdish Kumar. The allegations with regard to torture have also been denied. 7.3. It is the further case of the respondents that Jagdish Kumar has not committed suicide during the course of the employment, as the incident had taken place on 29.2.2004/1.3.2004. On that day, he was not on duty being Sunday. His duty hours were from 9.00 a.m. to 5.00 p.m. He was not burdened with excess duties. Rest of the contents of the petition have been denied. 8. The application, under Section 5 of the Limitation Act had also been contested on the same grounds upon which the main petition has been contested. 9. Petitioners have filed rejoinder to the reply filed by the respondent, by denying the contents of the reply, by virtue of which, the petition has been contested. 10. In this case, the application under Section 5 of the Limitation Act was allowed by learned trial Court on 10.7.2012. 11. From the pleadings of the parties, learned trial Court has framed the following issues, vide order dated 10.7.2012: (1) Whether late Jagdish Kumar workman died during the course of his employment, as alleged? OPP (2) Whether the applicants are entitled for compensation as prayed for? OPP (3) Whether the petition in the present form is not maintainable in the eyes of law? OPR 4). Whether late Jagdish Kumar committed suicide, while he was not on duty, as alleged? OPR (5) Relief. 12. Thereafter, the parties to the lis were directed to adduce evidence. Consequently, both the parties have led evidence. 13. After the closure of evidence and after hearing learned counsel for the parties, the learned trial Court has dismissed the petition, vide order dated 10.7.2015, impugned herein. 14. OPR (5) Relief. 12. Thereafter, the parties to the lis were directed to adduce evidence. Consequently, both the parties have led evidence. 13. After the closure of evidence and after hearing learned counsel for the parties, the learned trial Court has dismissed the petition, vide order dated 10.7.2015, impugned herein. 14. Feeling aggrieved from the order dated 10.7.2015, the petitioners have preferred the present appeal, before this Court, mainly, on the ground that the learned trial Court, has failed to appreciate the facts and circumstances of the case, as, Jagdish Kumar has committed suicide, due to the stress and strain, arising out of the circumstances directly attributed to his employment. According to the petitioners, statements of PW-2, PW-3, PW-5, have wrongly been discarded. 15. Learned trial Court is also stated to have not considered the fact that during his entire service career of 22 years, Jagdish Kumar remained posted in District Kinnaur. On the basis of the stand as taken in the petition, the order passed by the learned trial Court has been assailed. 16. The appeal was admitted, by this Court, on the following substantial question of law, vide order dated 27.9.2016: “Whether the impugned award is a result of mis-appreciation and no appreciation of the relevant material on record?” 17. The factual position, with regard to, the employment of Jagdish Kumar with the respondents, his posting in the hard area, as well as, factum of his committing suicide on the intervening night of 29.2.2004/1.3.2004, has not been disputed, in this case. 18. In this background, first and foremost question, which arises for determination before this Court is whether Jagdish Kumar has committed suicide during the course of employment. 19. As per the version of PW-1, Meera Devi, Jagdish Kumar has committed suicide while on duty at power house. The stand of the respondents that Jagdish Kumar has not died during the course of employment is belied from the documents Ex.RX, which is copy of Rapat Rojnamcha dated 1.3.2004, in which, it has specifically been mentioned that Jagdish Kumar, Hydro Mechanic, has been found hanging in the backyard of the power house. 20. Similar facts have been mentioned in the document Ex.PW-2/A, which is copy of Rapat Rojnamcha recorded by SI/SHO of Police Station, Sangla. In this document also, the factual position regarding the suicide of Jagdish Kumar in the power house has been mentioned. 21. 20. Similar facts have been mentioned in the document Ex.PW-2/A, which is copy of Rapat Rojnamcha recorded by SI/SHO of Police Station, Sangla. In this document also, the factual position regarding the suicide of Jagdish Kumar in the power house has been mentioned. 21. Learned trial Court, in this case, has disentitled the petitioners from seeking the compensation by holding that Jagdish Kumar was not on duty, being Sunday and his duty hours were held to be 9.00 a.m. to 5.00 p.m. 22. The suicide note of Jagdish Kumar is on the file as Ex.RW-3/A. In the suicide note, he has not alleged anything against petitioner No. 1 nor against respondents. 23. Respondents have placed on record letter Ex.RW-3/B. From the documents, which have been produced by the respondents, alleged strained relations between petitioner No. 1 and deceased does not prove or probabilize. 24. Jagdish Kumar was permanent resident of District Mandi and was posted in District Kinnaur and it is immaterial that at the time of his death, he was on duty or not. He was in District Kinnaur, on account of his employment with respondents, as such, there is no legal hesitation to hold that the death (suicide), had taken place, during the course of employment. 25. The Employee’s Compensation Act is a beneficial piece of legislation. However, the petition under the Act is to be decided, in accordance with the provisions of the Act. Section 3 of the Act, deals with employer’s liability to pay compensation. Sub-Section (1) of Section 3 of the Act, is reproduced as under: 3. Employer’s liability for compensation: (1) If personal injury is caused to a employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable: (a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days. (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to: (i) the employee having been at the time thereof under the influence of drink or drugs. (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to: (i) the employee having been at the time thereof under the influence of drink or drugs. (ii) the willful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees. (iii) the willful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee. 26. Bare reading of the above provisions make out a case that the impediments, as incorporated in Section 3(1) (b), are applicable in case of injuries. The above impediments are not applicable, in case of death or permanent total disablement. 27. In this case, it has not been disputed that Jagdish Kumar has committed suicide during the intervening night of 29.2.2004/1.3.2004, in the power house at Sangla. In the inquest report, which is on the file, the reason for death has been mentioned as suicide by hanging. 28. In the cross-examination, PW-1, has admitted that she is getting the family pension on account of death of her husband and after the death of her husband, she has also been engaged as daily wager by the respondents. 29. As per the documents, the amount of Life Insurance to the tune of Rs. 30,000/- GPF amounting Rs. 1,41,904, Benevolent Fund amounting Rs. 30,000/- Ex-gratia of Rs. 30,500/- and DCRG of Rs. 1,17,852/- was given to the petitioners, although, these documents have not been exhibited. The documents, which have been produced by the respondents, can be taken into consideration, in order to negate the contentions raised by the respondents. 30. As per the CCS Pension Rules, 1972, which were applicable, on the day when, Jagdish Kumar had committed suicide, the date of death was also to be treated as working day. The relevant Rule 5 of CCS (Pension) Rules 1972 is reproduced as under: “5. Claims to pension or family pension: (1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be. Claims to pension or family pension: (1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be. (2) The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last completed working day and the date of death shall also be treated as a completed working day: Provided that in a case where the Government servant immediately before his retirement or death was absent from duty on leave or otherwise or was under suspension, the day of retirement or death shall be part of such leave or absence or suspension.” (Emphasis supplied) 31. Although, the above proviso to Rule 5 of the CCS (Pension) Rules, was omitted vide notification dated 21.12.2012, but, at the relevant time i.e. 29.02.2004/01.03.2004, it was in force. 32. The term ‘death’ has been used in CCS (Pension) Rules, as well as, under the Act. 33. The term ‘death’ has been defined in Section 2(b) of the Registration of Births and Deaths Act, 1969, which means the permanent disappearance of all evidence of life at any time after live-birth has taken place. 34. As per Section 46 IPC, ‘death’ denotes the death of a human being unless the contrary appears from the context. 35. The Hon’ble Supreme Court in M. Mohan vs. State Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626 , has elaborately dealt with the term ‘suicide’ as appeared in Section 306 IPC. Relevant paragraph 36 to 38, are reproduced, as under: 36. We would like to deal with the concept of ‘abetment’. Section 306 of the Code deals with ‘abetment of suicide’ which reads as under: “306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine.” 37. The word ‘suicide’ in itself is nowhere defined in the Indian Penal Code, however, its meaning and import is well known and requires no explanation. The word ‘suicide’ in itself is nowhere defined in the Indian Penal Code, however, its meaning and import is well known and requires no explanation. ‘Sui’ means ‘self’ and ‘cide’ means ‘killing’ thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 38. In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of I.P.C. 36. In view of the above decision of the Hon’ble Supreme Court, this Court is of the view that the accomplished act of Jagdish Kumar to commit suicide is not an offence, as the legislature has made only the ‘attempt’ punishable in terms of Section 306 IPC. 37. Death includes natural death or unnatural death. Unnatural death includes; homicidal death; Suicidal death; and accidental death. Had the intention of the legislature to exclude the legal representatives of a person, who has committed suicide, from claiming the compensation under the Act, then, the word ‘death’ should have been clarified by mentioning that the person who has committed suicide, his legal representatives are not entitled for any compensation. 38. When the Section is clear and in unambiguous terms, the legislature, in its wisdom, has used the word ‘death’, then, excluding the legal representatives, is nothing but, interpreting the provisions contrary to the object of the Act, which is a welfare piece of legislation or over reaching the legislative intent. 39. Now, coming to the findings of the learned trial Court qua the fact that at the time of committing suicide, Jagdish Kumar was not on duty. These findings are not sustainable in the eyes of law, as held earlier that Jagdish Kumar was resident of District Mandi and was posted in District Kinnaur. 40. The term ‘during the course of employment’ has no where been defined in the Act, however, a liberal construction of this term has to be given, as, the Act is beneficial piece of legislation. The person, who is posted at a particular station, cannot leave the station without prior permission of the employer. 40. The term ‘during the course of employment’ has no where been defined in the Act, however, a liberal construction of this term has to be given, as, the Act is beneficial piece of legislation. The person, who is posted at a particular station, cannot leave the station without prior permission of the employer. It is not the case of the respondents that Jagdish Kumar had proceeded on earned leave and by submitting departure report to the office, he has left the station, after sanction of leave. The employee, who is present, at a particular station, in connection with his duties, cannot be said to be not present, at the place during the course of employment. 41. Jagdish Kumar was regular employee of respondents and his presence at his work place is in relation to his official duties. It is not the case of the respondents that Jagdish Kumar has violated any Rule or Regulation, by entering the premises of Power House, where, he has committed suicide. 42. Jagdish Kumar was employed for doing the work at a particular station and his presence at power house is an action, arising out of his employment. 43. In view the stand taken by the respondents that Jagdish Kumar has committed suicide in the power house and it is not the case of the respondents that Jagdish Kumar has unauthorizedly entered in the premises of the power house. His duty roster has not been placed on record, by the respondents. 44. Duty roster is a document, which, admittedly, will be in the possession of the respondents. When, the duty roster has not been placed on record, then, adverse inference has to be drawn against the respondents that Jagdish Kumar was on duty at the relevant time. No document has been placed on record to demonstrate that Jagdish Kumar was not on duty at the relevant time. 45. The affidavit, filed in evidence, by RW-1, is totally silent about the duty hours of Jagdish Kumar, at the time of his death. Documents Ex.RW-1/B and Ex.RW-1/C, which have heavily been relied upon by the respondents, are not sufficient to prove the duty hours of Jagdish Kumar. 46. In such situation, the plea of the petitioners that Jagdish Kumar was over burdened with work, stood probabilized, as, there was only one post of Fitter/Hydro Mechanic. Documents Ex.RW-1/B and Ex.RW-1/C, which have heavily been relied upon by the respondents, are not sufficient to prove the duty hours of Jagdish Kumar. 46. In such situation, the plea of the petitioners that Jagdish Kumar was over burdened with work, stood probabilized, as, there was only one post of Fitter/Hydro Mechanic. In such situation, the stand of the petitioners that Jagdish Kumar had taken the extreme step due to excess overtime work, taken by the respondents, stood probabilized. 47. Even, RW-1 has also deposed voluntarily in the cross-examination that about 2-3 months prior to his suicide, Jagdish Kumar was mentally disturbed. 48. Respondents have not examined any person, who was looking after the power house or was working in the supervisory capacity to prove/probabilize their stand, as taken in the reply, about the duty timings of Jagdish, as well as, alleged mental disturbance. 49. Jagdish Kumar was at power house, as, he had to be there, due to employment with the respondents. It is not the case of the respondents that the power house was open place, where any person can come. At the cost of repetition, he was holding the post, which was available only at the project site, where, he has committed suicide and one at Kaza. 50. Another stand, which has been taken by the petitioners, in this case, is that respondents had not permitted Jagdish Kumar to avail leave. Petitioner No. 1, while appearing in the witness-box, has specifically stated that the department had deployed her husband on 24 hours duties and he was not permitted to avail the leave. Leave record is with the respondents and to rebut the stand taken by petitioner No. 1, best evidence was the leave record and the applications for leave, submitted by Jagdish Kumar to the respondents. Those records have not been proved by the respondents, despite the fact that the relevant record, in the ordinary course of events, would be with them. 51. Even, in the cross-examination, this witness has admitted that her husband had disclosed that the department has not permitted him to avail the leave. Not only this, she has specifically levelled allegations against Junior Engineer Pratap, who, according to her, had not permitted her husband to take leave or did not sanction the leave. 51. Even, in the cross-examination, this witness has admitted that her husband had disclosed that the department has not permitted him to avail the leave. Not only this, she has specifically levelled allegations against Junior Engineer Pratap, who, according to her, had not permitted her husband to take leave or did not sanction the leave. Not only this, she has deposed in the cross-examination that at the time of incident, her husband was on night duty. 52. Respondents have withheld the best evidence to rebut the stand of the petitioners by not proving the service record, leave record, duty roster of Jagdish Kumar for the relevant time. Withholding the above documents, probabilizes the case of the petitioners that Jagdish Kumar was mentally disturbed, on account of his continuous service, in the hard area, as well as, the department was forcing him to do work beyond the duty hours and not permitting him to avail the leave. 53. No benefit can be derived by the respondents from the suicide note, which is on the file as Ex.RW-3/A, as, nothing has been alleged against the petitioners, by the deceased, in the said suicide note. 54. Another point, which has rightly been highlighted by the learned counsel for the petitioners that when, the department has paid the retiral benefits to the petitioners, then, there was no legal hesitation for the petitioners to claim compensation under the Act for the suicide committed by Jagdish Kumar during the course of employment. The term ‘death’ has been used in CCS (Pension) Rules and the same term has been used by the legislature in its wisdom under the Act. 55. In view of the above, this Court is not in agreement with the findings recorded by the learned trial Court, qua the fact that petitioners are not entitled to any compensation, as, Jagdish Kumar has committed suicide. 56. Suicide comes within the definition of ‘death’ as used by the legislature, in its wisdom, in Section 3 of the Act. The age of Jagdish Kumar is proved as 44 years. Jagdish has committed suicide during the night intervening 29.2.2004/1.3.2004. At the relevant time, following explanation was there in Section 4 of the Act: “4. 56. Suicide comes within the definition of ‘death’ as used by the legislature, in its wisdom, in Section 3 of the Act. The age of Jagdish Kumar is proved as 44 years. Jagdish has committed suicide during the night intervening 29.2.2004/1.3.2004. At the relevant time, following explanation was there in Section 4 of the Act: “4. Amount of compensation: (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: (a) where death results an from the injury : an amount equal to fifty per cent. of the monthly wages of the deceased [employee] multiplied by the relevant factor; or an amount of *[one lakh and twenty thousand rupees], whichever is more. (b) xxx xxx xxx Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b). Explanation I - For the purposes of clause (a) and clause (b) “relevant factor” in relation to [an employee] means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the [employee] on his last birthday immediately preceding the date on which the compensation fell due. Explanation II - Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only [Omitted by Act 45 of 2009]. (c) where permanent partial disablement result from the injury: (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury. (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.” (Emphasis supplied) 57. Although, the salary of Jagdish Kumar, during his life time, proves to be Rs. Although, the salary of Jagdish Kumar, during his life time, proves to be Rs. 10,400/- however, keeping in view the explanation-II, appended with Section 4 of the Act, his monthly wages are to be taken as Rs. 4,000/- for the purpose of assessing the compensation. 58. Keeping in view the age of Jagdish Kumar, 172.52, would be the relevant factor to be applied in this case. Applying the relevant factor, the petitioners are entitled to Rs. 3,45,040/- (172.52 x 2,000), along with interest @ 12% per annum, from due date i.e. 1.4.2004. 59. No other point urged or argued. 60. In view of the above, the substantial question of law framed, in this case, is answered in favour of the petitioners and the appeal is allowed. The petitioners are held entitled to a sum of Rs. 3,45,040/- along with interest @ 12% per annum, from due date i.e. 1.4.2004, from the respondents, jointly and severally. 61. Pending applications, if any, shall also stand disposed of.