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2024 DIGILAW 559 (AP)

A. P. Genco v. Commissioner For Employees Compensation And Assistant Commissioner Of Labour

2024-05-09

VENKATESWARLU NIMMAGADDA

body2024
ORDER : The present writ petition is filed under Article 226 of the Constitution of India seeking following relief: “to issue a writ, order or direction more particularly a writ in the nature of Writ of MANDAMUS declaring the order of the 1st respondent herein i.e., the Commissioner for Employees Compensation and Assistant Commissioner of Labour, Narasaraopet passed in E.C.Case No. 06/2018, dated 31.08.2021 directing the petitioner herein to pay the compensation and making him jointly and severally liable for the amount that was awarded to the tune of Rs.7,64,780/- as bad, illegal, arbitrary opposed to law and pass such other order or orders…” 2. The case of the petitioner in brief is that the petitioner herein is a Power Generation Corporation which undertakes to generate power and includes hydral, thermal and solar power and is responsible for maintaining all the plants in the State of Andhra Pradesh. The 3rd respondent herein by name Sri Gottam Chinna Brahmareddy was awarded contract for the work with regard to the Nagarjuna Sagar Tail Pond Dam (NSTPD) which is the contract for HT and LT supplies, control panels of radial gates, dewatering pumps in the inspection gallery, illumination on main dam and assistance to ADE & AE’s of Electrical Services Sub-Division at N.S.T.P. dam site near Satrasala village. While so, the 2nd respondent’s late husband was engaged by the 3rd respondent being a contractor for the execution of the work as the 2nd respondent’s husband was a skilled contract labour and resident of Balempally Village, Adavidevarapally Mandal, Nalgonda District. 2(i) The 2nd respondent’s husband by name Ramavat Redya Naik attended to the dam gallery for duty and at around 12.30 p.m., it was reported by his colleague that Redya Naik was found unconscious on the floor at the dam gallery site. As per the procedure, initial report in Form-A was sent to the Joint Commissioner of Labour and Assistant Commissioner of Labour, Guntur on 02.11.2016 for information. Thereafter, while undergoing treatment, the husband of the 2nd respondent died. 2(ii) The further case of the petitioner is that the 3rd respondent herein insured in the name of the 2nd respondent’s husband and the particulars of the insured policy is covered by the 4th respondent which shows that the 2nd respondent’s deceased husband was working under the 3rd respondent. Thereafter, while undergoing treatment, the husband of the 2nd respondent died. 2(ii) The further case of the petitioner is that the 3rd respondent herein insured in the name of the 2nd respondent’s husband and the particulars of the insured policy is covered by the 4th respondent which shows that the 2nd respondent’s deceased husband was working under the 3rd respondent. The petitioner is no way concerned with the said insurance policy since the deceased person is working under a contractor, who was entrusted the work as specified in the agreement. Thus, there is no master and servant relationship between the petitioner and the deceased husband of the 2nd respondent. However, the issue in question is that payment of compensation is totally involved in between the 3rd and 4th respondents as the 3rd respondent herein is a contractor and the 4th respondent is the National Insurance Company, who covered the insurance policy of the deceased. But, ignoring the crucial facts borne out by record and without there being any evidence adduced by the 2nd respondent herein, the 1st respondent came to a conclusion basing upon the employment, incident, death etc., of the deceased mentioned in the FIR, post mortem report and as per the admission by the 3rd respondent herein, proved beyond reasonable doubt that the deceased was a workman as per the provisions of the Act. 2(iii) The finding of the Court below is contradictory for the reason that on one side it was held that the deceased is a casual labour engaged by the 3rd respondent. But, on the other side the calculation for the compensation was arrived at Rs.7,64,780/- and the petitioner as well as 3rd and 4th respondents are liable jointly and severally and directed to pay the amount being the principal employer, contractor and insurer as per the provisions of the Employees Compensation Act, 1923. 2(iv) The order of the 1st respondent herein is totally perverse and not supported by any piece of evidence and the very finding that the petitioner herein is the principal employer is ex-facie, illegal and arbitrary and passed without any appreciation of the facts and if allowed to continue the said order, the petitioner would suffer irreparable loss and injury and he will be made liable to pay an amount to the deceased person as a principal employer which is unjustifiable and a wrong order. Aggrieved by the same, the petitioner filed the present writ petition. 3. On the other hand, learned counsel appearing for the 2nd respondent filed counter affidavit, wherein, it is stated as extracted below: “…..The 2nd respondent herein earnestly submit that present Writ Petition is filed Challenging an Order dated 31-08-2021 passed by Respondent No. 1 herein above under the Provisions of Employees Compensation Act, 1923. Act provides an Appeal under Section 30 before this Hon'ble Court only on substantial questions of law on depositing entire amount. I submit that Petitioner to avoid such deposit before this Hon'ble Court filed the present Writ Petition, only to circumvent the payment bypassing statutory appeal provided under the Act, hence I am raising the preliminary objection on maintainability of the present Writ Petition as such Writ Petition shall be dismissed at threshold by allowing the preliminary objection as there is an appeal provided under the Act. It is further submitted that the 2nd respondent herein filed the E.C. Case No.06/2018 on the file of the Court of the Commissioner for Employees Compensation & Assistant Commissioner of Labour, Narasaraopet, against the respondents therein seeking compensation amount of Rs.10,00,000/- for the demise of my husband while working as causal labour on 01-11-2016. The learned Assistant Commissioner of Labour, partly allowed the case and awarded a sum of Rs.7,64,780/-, but failed to grant any interest on the said compensation amount. Further learned Assistant Commissioner of Labour, has not granted total compensation amount as claimed in the EC Case No.06/2018. Therefore, on legal advise, we are constrained to file an Appeal before this Hon'ble Court learned Assistant Commissioner of Labour aggrieved by the Order dated 31-08-2021 passed in E.C. Case No.06 of 2018, on the file of the Court of the Commissioner for Employees Compensation & Assistant Commissioner of Labour, Narasaraopet, in so far as not granting total compensation and the interest thereon, is concerned. It is further submitted that the Writ Petitioner filed Counter Affidavit duly taking very same grounds raised in the present Writ Petition in the Appeal filed by me before this Hon'ble Court. I submit that this Hon'ble Court, by an Order dated 09-02-2024, partly allowed appeal (C.M.A No. 58 of 2022) only to the extent of interest others directions passed by the Respondent No.1 remained same. I submit that this Hon'ble Court, by an Order dated 09-02-2024, partly allowed appeal (C.M.A No. 58 of 2022) only to the extent of interest others directions passed by the Respondent No.1 remained same. It is further submitted that in view of the Orders passed in C.M.A No. 58 of 2022, present Writ Petition has become infructuous. Respondent No. 4 herein above by taking advantage of pendency of present Writ Petition, payment is not paid inspite of this Hon'ble Court direction passed in C.M.A. No.58 of 2022. It is submitted that if at all Petitioner aggrieves by the Orders passed in C.M.A. No.58 of 2022, remedy is elsewhere. Adjudication of the very same issue in the present Case is nothing but resjudicata, as such present Writ Petition shall be dismissed on this ground also…..” 4. Learned counsel for the petitioner submits that the order dated 31.08.2021 passed by the 1st respondent in E.C.No.06/2018 on the file of the Court of the Commissioner for Employees Compensation & Assistant Commissioner of Labour, Narasaraopet cannot withstand either on law or on facts. The finding of the 1st respondent treating the petitioner as an principal employer of the 2nd respondent’s deceased husband is contrary to the facts in hand. It is an admitted fact that the 2nd respondent’s deceased husband was engaged by the 3rd respondent, who entered into agreement with the petitioner for the particular contract. Therefore, there is no employer and employee relationship between the petitioner and the 2nd respondent’s deceased husband. As such, there is neither express contract nor master and servant relationship between the petitioner and the 2nd respondent’s deceased husband. In the absence of any such relationship between the petitioner and the 2nd respondent’s husband, holding that the petitioner is also liable to pay the amount jointly and severally along with the 3rd and 4th respondents is erroneous, contrary to the law of contracts. Hence, the impugned orders dated 31.08.2021 issued by the 1st respondent are liable to be set aside. 5. On the other hand, learned counsel for the 2nd respondent submits that at the outset, the present writ petition is not maintainable since the petitioner is available with an effective efficacious statutory alternative remedy by way of an appeal under Section 30 of the Employees Compensation Act, 1923 before this Court. 5. On the other hand, learned counsel for the 2nd respondent submits that at the outset, the present writ petition is not maintainable since the petitioner is available with an effective efficacious statutory alternative remedy by way of an appeal under Section 30 of the Employees Compensation Act, 1923 before this Court. He further submits that for availing of statutory appeal before this Court, the appellant shall deposit the amount awarded towards compensation. He further submits that to avoid such condition of higher deposit of compensation amount, the petitioner preferred the present writ petition bypassing the scheme of the Act. He further submits that the 4th respondent has already deposited the amount being an insurer. He further submits that since the 2nd respondent herself challenged the orders of the 1st respondent by way of C.M.A.No.58 of 2022 on the file of this Court on the ground that the 1st respondent not awarded compensation as claimed by the 2nd respondent/ applicant therein. In the said appeal, the petitioner herein choose to file counter affidavit and urged all the grounds whatever put forth before this Court by way of writ petition. After hearing all the parties, this Court was pleased to pass an order in C..M.A.No.58 of 2022. The operative portion of the said order reads as follows: “…15. Therefore, having regard to the facts and circumstances of the case, and on considering the judgment of K. Sivaraman’s case (Supra 1) relied upon by the learned counsel for the appellant, this Court is of the considered view that the total compensation payable to the appellant shall stand quantified compensation on which interest shall be paid @ 12%p.a. from the date of accident. Therefore, the compensation so determined is an amount which the claimant is legally entitled to receive on the date of accident. Hence, this Court is inclined to modify the order of the Commissioner dated 31.08.2021, passed in E.C.No.06 of 2018 and directed that the awarded sum will carry interest at the rate of 12% simple interest per annum from the date of accident till its payment. 16. Accordingly, the C.M.A is partly allowed only to the extent of interest. Hence, this Court is inclined to modify the order of the Commissioner dated 31.08.2021, passed in E.C.No.06 of 2018 and directed that the awarded sum will carry interest at the rate of 12% simple interest per annum from the date of accident till its payment. 16. Accordingly, the C.M.A is partly allowed only to the extent of interest. It is made clear that the respondents are directed to pay the compensation amount awarded by the Commissioner along with interest as stated supra within a period of TWO (02) months from the date of receipt of a copy of this order. There shall be no order as to costs..: Therefore, in view of the orders passed in C.M.A.No.58 of 2022, the present writ petition is liable to be dismissed. 6. Learned counsel appearing for the 4th respondent submits that pursuant to the orders of the 1st respondent dated 31.08.2021, the 4th respondent being an insurer, abide by the orders of the 1st respondent while complying the orders, subject to the rights to be enforced against the petitioner. 7. Heard Sri M.Vidya Sagar, learned counsel for the petitioner, Sri Kota Venkata Rama Rao, learned counsel appearing for the 2nd respondent, learned Government Pleader for Labour and Employment for respondent No.1 and Sri T.S.Rayalu, learned counsel appearing for the 4th respondent. 8. On perusal of the material on record, the entire crux of the issue of the present writ petition is in and around Section 30 of the Workmen’s Compensation Act, 1923 (for brevity “the Act”). 9. For better understanding Section 30 of the Act is extracted hereunder: 30. 8. On perusal of the material on record, the entire crux of the issue of the present writ petition is in and around Section 30 of the Workmen’s Compensation Act, 1923 (for brevity “the Act”). 9. For better understanding Section 30 of the Act is extracted hereunder: 30. Appeals (1)An appeal shall lie to the High Court from the following orders of a Commissioner, namely:— (a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (aa) an order awarding interest or penalty under section 4A; (b) an order refusing to allow redemption of a halfmonthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased employee, or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions: Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify: Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties: Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section 10. (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section 10. On perusal of the Section 30 of the Act clarifies that any order of the competent authority under Workmen’s Compensation Act can be challenged by way of an appeal before this Court. Therefore, Section 30 of the Act is an enabling provision by way of statutory appeal, which lies to this Court. Therefore, invoking of extraordinary jurisdiction under Article 226 of the Constitution of India by way of writ petition is nothing but bypassing the procedure as contemplated under Section 30 of the Act. The Statutory appeal under Section 30 of the Act is amenable to the jurisdiction of the Court. Therefore, inviting concurrent jurisdiction by way of extraordinary and appellate jurisdiction and inviting two different judgments cannot be permitted in the same matter, which is nothing but abuse of process of law. Admittedly, the 2nd respondent invoked the jurisdiction of this Court by way of C.M.A.No.58 of 2022 under Section 30 of the said Act. As such, the petitioner is not available with a right for invoking extraordinary jurisdiction of the Court under Article 226 of the Constitution of India. 11. In view of the foregoing discussion, this court is of the considered opinion that the present writ petition is liable to be dismissed as this Court passed final orders in C.M.A.No.58 of 2022 on 09.02.2024 by awarding interest upon the compensation awarded amount of Rs.7,64,780/-. 12. Accordingly, the writ petition is dismissed. There shall be no order as to costs. Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.