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FA/3770/2001 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3770 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DY.ENGINEER,GEB
& 1 - Appellant(s)
Versus
KARSHANBHAI
GANESHBHAI - Defendant(s)
=========================================================
Appearance
:
MR
SP HASURKAR for
Appellant(s) : 1 - 2.
None for Defendant(s) : 1,
RULE SERVED
for Defendant(s) : 1.2.1,1.2.2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 30/03/2010
ORAL
JUDGMENT
1. This
appeal under Section 30 of the Workman’s Compensation Act arises from
the award dated 23rd
March 2001 passed by the Commissioner of Labour in Workman
Compensation Case (fatal) No. 87 of 1993 granting a sum of Rs.
70,384/- towards compensation with interest at the rate of 6% and
also granting additional compensation at the rate of 50% towards
penalty.
2. By
order dated 29th August 2001 the appeal was admitted and
the Court, by the interim order dated 29th August 2001,
permitted the opponent to withdraw 40% of the deposited amount.
3. Despite
the service of the process, the opponents have not entered
appearance. Mr. Hasurkar learned advocate has appeared for the
appellant-Board.
4. The
facts relevant for the purpose of deciding the dispute raised by the
appellant are that one Mr. Labhubhai Karshanbhai was engaged by the
appellant-Board as an apprentice under the provisions of the
Apprentices Act 1961 (hereinafter referred to as the 1961 Act )
and he was, at the relevant time, working as an apprentice-lineman.
While working as an apprentice-lineman the said Labhubhai attended
the call by a consumer of the appellant-Board and while attending the
fault he met with an accident while attending the fault in an
electric transformer/supply line and succumbed to the injuries. After
the unfortunate and accidental death, the parents of the deceased
served notice on the appellant-Board demanding compensation. However,
the appellant-Board did not make the payment. Hence, the parents
filed the aforesaid Workman s Compensation (fatal) Case No. 20 of
1993 (renumbered as 87/1983 after the case was transferred to the
learned Commissioner at Bhavnagar) and claimed compensation to the
tune of Rs. 1 lac and also additional compensation as penalty at the
rate of 50% of the compensation and interest thereon. The claim was
made on the premise that the said Mr. Labhubhai died on account of
accident which arose out of and in the course of employment. The
claimants asserted that the deceased was being paid Rs. 800/- towards
wages and that at the time of his death he was 22 years old and that
therefore if the relevant factor was applied the claimants would be
entitled to claim and receive Rs. 1 lac towards compensation. In the
application they also maintained that in view of the default in
making payment, the opponents were also obliged in law to pay further
amount towards penalty and interest.
5. The
claim was resisted by the appellant-Board mainly on the ground that
the Board had no liability to pay compensation as the deceased was
not a workman employed by it but was working as an apprentice and was
being paid stipend at the rate of Rs. 330/- per month. The
appellant-Board also claimed in their reply before the learned
Commissioner, that as an apprentice the deceased had gone to attend
the fault on holiday unauthorisedly.
6. Mr.
Hasurkar submitted that the appellant is, mainly aggrieved by the
impugned award because the learned Commissioner has ignored the
documentary evidence on record evidencing that the deceased was being
paid Rs. 330/- towards stipend as an apprentice. He submitted that by
ignoring the said material evidence the learned Commissioner
proceeded to quantify the compensation by taking into account the
minimum wages prescribed under the provisions of Minimum Wages Act
though not relevant and/or attracted in the facts of the case. The
appellant-Board, being aggrieved by such decision of the learned
Commissioner, is before this Court in this appeal.
7. The
purport of the said defence is that neither the factum of the
accident nor the death of said Mr. Labhubhai is in dispute. Likewise
it is also not in dispute that the deceased was, though as an
apprentice, engaged by and working with appellant-Board. It is also
not in dispute that said Mr. Labhubhai died as he met with an
accident while attending fault in the transformer/supply line of the
appellant Board’s consumer. In light of the contention raised by the
appellant-Board, it emerges that the grievance of the appellant is
with regard to the learned Commissioner s decision about the income
of the deceased.
8. Mr.
Hasurkar learned advocate for the appellant has submitted that as an
apprentice, the deceased was being paid stipend of Rs. 330/- per
month and learned Commissioner is, therefore, not justified in taking
into account the rate of minimum wages prescribed under the provision
of Minimum Wages Act. Mr. Hasurkar did try to raise contention that
the deceased cannot be said to be workman of the
appellant-board and/or the appellant-Board does not have any
statutory obligation to pay compensation on account of the accidental
death of the Mr. Labhubhai as he was not workman within the
meaning of the terms defined under Section 2(n) of the 1923 Act.
9. At
the outset the appellant s contention raised in light of the status
of the deceased as apprentice deserve to be addressed. The appellant
has claimed that the deceased was engaged only as an apprentice and
that therefore he cannot be said to be workman within the
meaning of the term under Section 2(n) of the Act. Hence, he would
not be entitled to receive any compensation under the provision of
1923 Act. In this regard it is necessary to take into account section
16 of the 1961 Act which read thus:-
16.
Employer’s liability for compensation for injury.- If personal
injury is caused to an apprentice by accident arising out of and in
the course of his training as an apprentice, his employer shall be
liable to pay compensation which shall be determined and paid, so far
as may be, in accordance with the provisions of the Workmen’s
Compensation Act, 1923 (8 of 1923), subject to the modification
specified in the Schedule.
10. The
said provision obliges an employer of an apprentice who suffers
personal injury during his apprenticeship period on account of
accident arising out of and in the course of his training to pay
compensation to be determined in accordance with the provision under
1923 Act, subject to the modification prescribed under the statute.
11. It
is not disputed by the appellant-Board that on 28th August
1993 (i.e. the unfortunate day on which the accident occurred) the
deceased Mr. Labhubhai was engaged as an apprentice. In fact the
document placed on record by the appellant-Board demonstrated that at
the material point of time the deceased was engaged and was working
as an apprentice with the appellant-Board.
12. Thus
in view of the provision under Section 16 of the Act of 1961, the
appellant-Board s objection to pay compensation on the ground that
the deceased was merely an apprentice and not a workman fails and
does not deserve to be entertained. Hence, the said contention is
rejected at the threshold .
13. It
is appropriate to record that realizing the futility of raising the
said contention in view of the provision under the Act of 1923 read
with the Provisions of the Act of 1961, Mr. Hasurkar learned advocate
did not carry the said contention further.
14. Now
so far as the second objection is concerned it deserves to be noted
that the learned Commissioner has held that it is an employer s
obligation to pay minimum wages to his employee and that therefore
for the purpose of computation of compensation payable on account of
the accident nothing less than minimum wages can be taken into
account. On the other hand the learned Commissioner has accepted the
appellant-Board s contention and has held that the deceased was
working as an apprentice at the relevant time. In this view of
the matter the question which would arise is that having accepted
that the deceased was an apprentice under the Provisions of the Act
of 1961, whether it is open and permissible for the learned
Commissioner to ignore the payment of stipend which was
actually being made to the deceased and instead to proceed by taking,
as the base, the minimum wages payable to a workman .
15. So
as to appreciate the objection of the appellant-Board, it is
necessary to take into account the provision contained under Section
13 of the Act of 1961:
13.
Payment to apprentices.- (1) The employer shall pay to every
apprentice during the period of apprenticeship training such
stipend at a rate not less than the [prescribed minimum rate, or
the rate which was being paid by the employer on 1st January,
1970 to the category of apprentices under which such apprentice
falls, whichever is higher,] as may be specified in the contract of
apprenticeship and the stipend so specified shall be paid at such
intervals and subject to such conditions as may be prescribed.
[(2)
An apprentice shall not be paid by his employer on the basis of
piece work nor shall he be required to take part in any output
bonus or other incentive scheme.]
16. In
view of the said provision it is necessary to take into account the
schedule of the 1961 Act because Section 16 provides that the
compensation shall be determined and paid, so far as may be, in
accordance with the provision of Workmen s Compensation Act 1923,
subject to modification specified in the schedule. It is provided
under the schedule to the Act of 1961 that:
In
the Workmen’s Compensation Act, 1923,-
(1)
in section 2,-
(a)
for clause (e), substitute-
(e) employer
means an employer as defined in the Apprentices Act, 1961, who has
engaged one or more apprentices;
(b)
omit clause (k);
(c)
for clause (m), substitute-
(m) wages
means the stipend payable to an apprentice under section 13(1) of
the Apprentices Act, 1961;
(d)
for clause (n), substitute-
(n) workman
means any persons who is engaged as an apprentice as defined in the
Apprentice Act, 1961, and who in the course of his Apprenticeship
training is employed in any such capacity as is specified in
Schedule II
17. Thus
for the purpose of section 2(n) of 1923 Act, an apprentice
under the Act of 1961 is deemed to be a workman within the
meaning of the said term under the Act of 1923 and the stipend
payable to such apprentice under Section 13(1) of the Act of 1961 is
deemed to be wages for the purpose of Section 2(m) of the Act
of 1923 and the employer as defined under the Act of 1961 is deemed
to be an employer for the purpose of the Act of 1923 as well.
18. Unfortunately,
while taking into account the laudable principle requiring payment of
wages at the rate of minimum prescribed under the Minimum Wages Act,
learned Commissioner overlooked the provisions under Section 13 and
16 of the Act of 1961 read with the schedule thereof.
19. A
conjoint reading of Section 13, 16 and the schedule of the Act of
1961 brings about the requirement that the employer who has engaged
an appreciate in compliance with the provisions under the Act of 1961
shall be obliged to pay compensation, in the event of accident
arising out of and in the course of training of the appreciate, to
an appreciate or his legal representatives and for the purpose of
quantifying the compensation the stipend paid to the apprentice
shall have to be taken into account.
20. In
present case it emerges from the record that the appellant-Board had
placed on record the copy of the memo of appointment (i.e.
appointment order) of deceased as an apprentice and also a statement
containing details of the stipend paid to the deceased.
21. Thus
the documents available on record before the learned Commissioner
conclusively demonstrated that the deceased was working as an
apprentice-lineman and was being paid stipend at the rate of
Rs. 330/- per month.
22. Hence
subject to the other provisions, the compensation could have been and
ought to have been calculated on the basis of stipend paid to
the deceased and not by importing the provision and concept under the
Minimum Wages Act. There is a clear mandate under the provision of
the Act of 1961 which expressly provides the manner in which the
compensation has to be calculated and paid to apprentice in the event
of accident out of and in the course of his training. Such mandate
could not have been overlooked and ignored by the learned
Commissioner. Furthermore, in absence of incorporation – either
express or even implied-of the minimum wages Act and/or the concept
of payment of wages at the minimum rate prescribed under the Minimum
Wages Act, in the Act of 1923 by the legislature, the authority
created under the statute could not have imported and imposed such
obligation more so in face of clear mandate directing payment of
compensation to an apprentice as per the stipend paid to the
apprentice.
23. For
the aforesaid reasons the impugned directions requiring payment of
compensation calculated on the basis of Rs.800/- i.e. applicable
minimum wages deserves to be set aside and is accordingly set aside
to that extent. The appellant shall pay compensation on the basis of
the stipend amount. Fresh calculation to be made accordingly by the
learned Commissioner. The other directions regarding interest and
penalty are not challenged, hence, not disturbed. After fresh
calculation in accordance with the above mentioned discussion and
direction, the learned Commissioner shall refund the difference
amount (out of the deposited amount) to the appellant.
For
the foregoing reasons, the appeal is partly allowed. Rule is made
absolute to that extent.
(K.M.THAKER,J.)
Suresh*
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