IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.4.2010
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.8667 of 2010
S.M.Maqbool Basha .. Petitioner
Vs.
1. The Deputy Labour Welfare Commissioner
CPWD (SZ)-I, Ministry of Urban Development
Government of India, Shastri Bhavan 'A' Wing
II Floor, 26, Haddows Road, Nungambakkam
Chennai 600 006.
2. The Chief Engineer (SZ) I
Central PWD, Rajaji Bhavan, Chennai-90.
3. The Executive Engineer
Chennai Central Division No II
Central PWD, Shastri Bhavan
26, Haddows Road, Chennai 6.
4. Deputy Commissioner of Labour-II
II Floor, DMS Complex, Teynampet
Chennai 6.
5. G.Venkatesan .. Respondents
Prayer: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records of the first respondent in proceedings DLWC/AR/560, dated 4.12.2008, to quash the same insofar as the petitioner is concerned and consequently direct respondents 2 and 3 to disburse the amount of Rs.2,27,000/- to the petitioner honouring the work order No.19/CCD/II/2008-09, dated 21.10.2008.
For Petitioner : Mr.S.Balaji
ORDER
The petitioner has come forward to file the present writ petition seeking to challenge the order of the first respondent/Deputy Labour Welfare Commissioner dated 4.12.2008.
2.1. The first respondent was informed that one M.Vinod, S/o.Mohan, aged 22 years, working as Painter died on 23.10.2008 at the Government General Hospital due to the collapse of pandal on account of heavy rains and he was engaged under the supervision of the Executive Engineer, CCD II. On receiving the information, the first respondent visited the spot and confirmed and verified from the Executive Engineer and the Assistant Engineer. Therefore, it was found that the death attracted the provisions of the Workmen’s Compensation Act, 1923 and the compensation payable to the legal representatives of Late Vinod works out to Rs.4,42,740/- based upon the calculation made under Section 4 of the Workmen’s Compensation Act.
2.2. The first respondent held that the work was being carried out under three work orders/agreements and two agencies were involved, one of the agency was the petitioner and the other work is done by one G.Venkatesan. Therefore, the petitioner was directed to share the amount equally along with G.Venkatesan, which amount was to be deposited with the Deputy Commissioner of Labour-cum-Workmen’s Compensation Commissioner. The first respondent also ordered that in case the petitioner did not pay his 50% of the liability, then any amount payable through bills to be cleared may be forestalled.
3. The petitioner has come forward to challenge the said order on the ground that he was not at all a contractor and the question of his paying 50% of the amount of compensation payable to Late Vinod will not arise and the first respondent has no jurisdiction to pass such an order.
4. It must be noted that the Workmen’s Compensation Act, 1923 is a self-contained code and under Section 12 read with Rule 39, the Workmen’s Compensation Commissioner can decide not only the compensation payable to a deceased or an injured workman, but also the inter-se dispute between the contractor and the principal employer. In case the principal employer pays the amount, he can always get it indemnified by the contractor. Therefore, the actual dispute will have to be raised before the Workmen’s Compensation Commissioner.
5. However, when a similar action arose, this Court in T.R.Subramanian v. Deputy Commissioner of Labour, [2008] 2 MLJ 694 held that such a dispute cannot be countenanced by the Workmen’s Compensation Commissioner and in paragraphs [10] and [11], it was observed as follows:
“10. Therefore, on the strength of this, the learned counsel states that it is not enough if the Commissioner should pass an order of indemnity but also he must use the machinery vested on him by the Workmen’s Compensation Act and recover the amounts from the contractors. I am unable to agree with the said submission. The recovery machinery provided in the W.C.Act is essentially for the workmen to seek compensation either against the immediate employer or against the principal employer. Once the compensation amount is due, the obligation to recover the same by taking distraint proceedings (i.e. by the issuance of revenue recovery certificate) may also fall on the Commissioner. But that does not take his role to any illogical conclusions.
11. The dispute between the contractor and the principal employer cannot be solved by the Commissioner and the recovery machinery can’t be used in case of indemnity and the amounts from the contractors realised to be paid to the principal employer. In fact, the Section only talks about indemnifying the payment made by the principal employer by the contractors. Rule 39 nowhere provides that the recovery machinery is to be put at the disposal of the principal employer as against the contractor. At the maximum, the Commissioner can only pass orders fixing the liability to take with that further right of the principal employer to get indemnity from the contractors. But that power does not automatically enable the Commissioner to make recovery proceedings as against the contractors. The Act is not intended for such collateral proceedings. In the impugned order, the Commissioner has correctly stated that the petitioner will have to invoke the machinery of Civil Court on the basis of the indemnity order issued by the Commissioner for Workmen’s Compensation.”
6. The matter was taken before a Division Bench in W.A.No.709 of 2007. The Division Bench presided over by Elipe Dharma Rao,J., by order dated 6.8.2008, allowed the writ appeal and after following the judgment of the Madhya Pradesh High Court in South Eastern Coalfields Ltd. v. Asha, 2001 (3) LLJ (Supp) 102, observed as follows in paragraph [4]:
“4. Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, (or any other person from whom the workman could have recovered compensation and where a contractor who himself is a principal is liable to pay compensation or to indemnify a principal under this section, he shall be entitled to be indemnified by any person standing to him in relation of a contractor from whom the workman could have recovered compensation, and all questions as to die right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner. Therefore, the Commissioner has given power to settle the dispute between the principal and the contractor with regard to the payment of compensation by the principal to the workman, who in turn, is entitled to receive the compensation from the contractors. Further Rule 39 contemplates the procedure with regard to making of an application to the Commissioner accompanied by the prescribed fee, and the Commissioner shall thereupon issue notice to such person in Form J. If any person served with a notice under sub-section (1) desires to contest the applicant’s claim for compensation or the opposite party’s claim to be indemnified, he shall appear before the Commissioner on the date fixed for the hearing of the case or any date to which the case may be adjourned and, if he so appears, shall have all the rights of a party to the proceedings; in default of so appearing he shall be deemed to admit the validity of any award made against the opposite party and to admit his own liability to indemnify the opposite party for any compensation recovered from him. Therefore, in this case, as rightly contended by the learned counsel for the petitioner, as the principal employer satisfied the award and made payment of the compensation, thereafter, approached the Commissioner to indemnify the above said amount from the contractors, the Commissioner instead of ordering recovery of the amount from the contractors as contemplated under Rule 39, directed the petitioner to approach the civil court for recovery of the amount is illegal. The learned Single Judge wrongly dismissed the writ petition. Therefore, the order impugned in the writ petition is liable to be set aside.”
7. In the light of the decision of the Division Bench and the petitioner having a machinery to determine his liability, the writ petition is not maintainable. Accordingly, the writ petition stands dismissed. However, this will not prevent the petitioner from filing appropriate petition before the jurisdiction Workmen’s Compensation Commissioner and to decide the lis between him and the Central Public Works Department.
With these observations, the writ petition stands dismissed. No costs. Consequently, M.P.Nos.1 and 2 of 2010 are closed.
Note to Registry:
Registry is directed to return the original
impugned order to the petitioner, after
substituting the same with a photocopy.
sasi
To:
1. The Deputy Labour Welfare Commissioner
CPWD (SZ)-I, Ministry of Urban Development
Government of India, Shastri Bhavan ‘A’ Wing
II Floor, 26, Haddows Road, Nungambakkam
Chennai 600 006.
2. The Chief Engineer (SZ) I
Central PWD, Rajaji Bhavan, Chennai-90.
3. The Executive Engineer
Chennai Central Division No II
Central PWD, Shastri Bhavan
26, Haddows Road, Chennai 6.
4. Deputy Commissioner of Labour-II
II Floor, DMS Complex, Teynampet
Chennai 6