1
37
S.B. CIVIL WRIT PETITION NO.4090/2005.
Bhilwara Spinners Limited, Bhilwara
Vs.
Workmen's Compensation Commissioner, Bhilwara & Ors.
Date of Order :: 5th August 2008.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Arun Bhansali, for the petitioner.
Mr. Sandeep Sarupariya, for the respondents Nos. 2 to 6.
.....
BY THE COURT:
Having heard learned counsel for the petitioner and
having perused the material placed on record, this Court is
unable to find any reason to consider any interference in the
impugned order dated 30.05.2005 (Annex. 6) as passed by the
Workmen’s Compensation Commissioner, Bhilwara (‘the
Commissioner’); and this Court is clearly of opinion that this
writ petition, being totally bereft of substance, deserves to be
dismissed with costs.
The claim for compensation has been made before the
Commissioner by the dependents (wife and minor children) of
late Pokhar Balai, while joining one Shanker Lal and another
Pusa Lal Choudhary as the non-applicants Nos.1 and 2 with
the present petitioner as the non-applicant No.3. The
claimants have averred in their claim application (Annex.1)
that the deceased Pokhar Balai was employed as a tractor
2
driver with the non-applicants Nos. 1 and 2 and was supplying
water at the works of the non-applicant No.3; and have alleged
that thiswise, the deceased was in employment of all the three
non-applicants. It has been averred that during the course of
such employment, the victim met with his untimely end for an
accident that occurred within the premises of the non-applicant
No.3 (the present petitioner) on 12.05.2002.
While stating the age of the victim at 40 years, and his
monthly income at Rs. 4,000/-, the claimants have sought
compensation in the sum of Rs. 3,78,340/- against all the non-
applicants. The non-applicant No.3 (the present petitioner) has
filed a reply (Annex.2) to the claim application, with the
submissions, inter alia, that the victim was not in its
employment nor died during the course of any such
employment. According to the petitioner, it was found during
investigation, that while water was being supplied from the
tractor, the deceased sustained fatal injuries while attempting
to reach the upper branches of a tree with a long iron rod that
came in contact with 33 KV electricity line.
The petitioner also moved an application (Annex.3) on
06.04.2004 with the submissions that the deceased was not in
its employment and hence, the claim application was not
maintainable against it; and prayed that such an objection was
required to be decided at the first. The application was replied
3
on behalf of the claimants with the submissions (Annex.4)
that the application was not maintainable and that the non-
applicant No.3 was liable as being the principal employer. On
22.04.2005, the learned Commissioner proceeded to frame
the following issues (Annex.5) for determination of the
questions involved in the matter:
“(1) आय मतक प खर बल ई द न क 12-5-02 क
अप र सखय 1 व 2 क टक र पर ननय ज!त ह
अप र सखय 3, क ससर न म$ प न% क& सपल ई करत
समय क य’ क (र न क य’ क क रण उतपनन र – ‘ न
क पररण मसवरप र
– ‘ न गसत ह !न क
पररण मसवरप द न क 27-5-02 क मतय- क प प ह-आ
ह3 एव अप र सखय 1 व 2 मतक क ननय !क
ठक र व अप र सखय 3 म-खय ननय !क क रप म$
कम’क र कनत प7नत’ अन8. क अनतर’त म-आव! व
श सत% हत- नयतव 8%न ह3 ?
(2) यद ह त मतक आन;त अप र सखय 1, 2
अरव अप र सखय 3 स दकतन म-आव! बय ! व
श जसत प प करन क अन8क र= ह3 ?
(3) अनय अन-त ष ?
After framing of issues, yet another application
(Annex.6) was moved on behalf of the petitioner with the
submissions that its earlier application dated 06.04.2004 was
pending and if the trial on other issues was taken up without
deciding on such an aspect, the petitioner would
unnecessarily be required to participate in the proceedings;
and it was reiterated that the deceased was not in its
employment.
4
The learned Commissioner has observed in the
impugned order dated 30.05.2005 (Annex.7) that all the
questions in controversy would be determined in the final
judgment and has ordered that the matter be proceeded for
evidence.
Seeking to assail the order dated 30.05.2005, it has
strenuously been contended by the learned counsel for the
petitioner that the question of competence of the claim
application against the petitioner ought to have been decided
as a preliminary issue by the learned Commissioner; and,
while relying on the decision of the Hon’ble Supreme Court in
the case of Management of Express Newspapers (Pvt.) Ltd.
Vs. The Workers & Ors. : AIR 1963 SC 569, learned counsel
contended that such a question being directly related to the
jurisdiction of the Commissioner, is required to be decided at
the initial stage of proceedings. The submissions remain
untenable.
The averments as taken by the claimants in the claim
application, when read as a whole, make out that according to
them, the victim was in employment of all the three non-
applicants including the present petitioner. Looking to the
substance of the allegations and the material available
available on record, the learned Commissioner has framed the
issues taking into comprehension all the questions involved in
5
the matter including the question as to whether the non-
applicant No.3 (the present petitioner) is liable towards
compensation or not ? The plea as taken by the present
petitioner, of the victim being not in its employment, remains a
plea in defence and is obviously subject to the trial and final
adjudication by the learned Commissioner. Such a plea cannot
be said to be a plea relating to the jurisdiction of the
Commissioner to deal with the claim for compensation.
Reference to the decision in Management of Express
Newspaper (supra) remains entirely inapt wherein the question
had been about existence of an industrial dispute, a sine qua
non for the Industrial Tribunal to assume jurisdiction and to
proceed with adjudication. In the claim for compensation
under the Workmen’s Compensation Act as made by the
claimants, if a particular non-applicant seeks to submit that he
does not answer to the description of the employer and is not
liable towards compensation, such a plea does not lead to
any question on the initial jurisdiction of the Commissioner
concerned.
The learned Commissioner has rightly chosen not to
pronounce anything on the baseless applications as moved
by the present petitioner; and has rightly posted the matter for
evidence with the observations that all the questions in
controversy would be decided at the time of final adjudication.
6
This writ petition remains totally bereft of substance and
is, accordingly, dismissed with costs quantified at Rs. 3,300/-.
It shall be permissible for the Commissioner concerned
to proceed with the matter most expeditiously as it is noticed
that the claim for compensation relates to an accident that
occurred way back in the year 2002.
(DINESH MAHESHWARI), J.
Mohan/