BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.No.1462 of 2006 and M.P(MD)Nos.1 of 2008 and 1 of 2006 1.The Superintending Engineer, Tamil Nadu Electricity Board(Metro), Tiruchirappalli - 20. 2.The Assistant Engineer (O&M), Tamil Nadu Electricity Board, Thungapuram, Kunnam Taluk. .. Appellants Vs 1.C.Jothi 2.Minor Cholan @ Rajacholan 3.Minor c.Prabaharan 4.Minor C.Brindha (Minors R2 to R4 rep. by their mother, R1) 5.T.Kokilambal 6.Thangavel .. Respondents Prayer Appeal filed under Section 30 of the Workmen Compensation Act, against the order dated 06.03.2006 passed in W.C.No.541 of 2004 by the Court of Workmen's Compensation (Deputy Commissioner of Labour), Tiruchirappalli. !For Appellant ... Mr.M.Suresh Kumar ^For Respondents ... Mr.K.K.Senthil :JUDGMENT
This appeal is focussed as against the order dated 06.03.2006 passed in
W.C.No.541 of 2004 by the Court of Workmen’s Compensation (Deputy Commissioner
of Labour), Tiruchirappalli.
2. Heard both sides.
3. The Court of Workmen’s Compensation (Deputy Commissioner of Labour),
Tiruchirappalli vide order dated 06.03.2006 awarded compensation to a tune of
Rs.3,69,620/- (Rupees three lakhs sixty nine thousand six hundred and twenty
only) to the claimants.
4. Animadverting upon the liability fixed on the appellants/Electricity
Board and also the quantum of compensation awarded by the lower authority
relating to the death of one Chinnadurai, this civil Miscellaneous Appeal has
been filed on various grounds; the gist and kernel of them could be portrayed
thus:
Even though the Electricity Board in the counter had taken a specific
stand that the deceased did not adhere to the safety standards prescribed by the
Electricity Board at the time of performing the work, nonetheless the lower
authority simply held as though the Electricity Board was responsible without
even discussing the plea raised by the Electricity Board. The quantum of
compensation arrived at by the lower authority is on the higher side as there is
no evidence to prove that the deceased was earning such a huge sum of Rs.200/-
(Rupees two hundred only) per day as wages/salary.
5. The following substantial question of law was framed by my learned
Predecessor at the time of admitting this Civil Miscellaneous Appeal:
“Whether the quantum of compensation awarded by the lower authority in the
absence of any acceptable evidence is sustainable both in law and on facts?”
6. Heard both sides. I am of the considered opinion that the substantial
questions of law could be reframed in replacement of the above:
“(i) whether the deceased had not followed the safety standards prescribed
by the Electricity Board, while performing the work and if so whether the
Electricity Board could wriggle out of its liability to pay compensation? and
(ii) whether the compensation awarded is on the higher side?”
Substantial Question of Law (i):
7. The learned counsel for the appellants/ Electricity Board would develop
his arguments to the effect that the workman did not wear glows and he did not
get tied the rope around his waist by way of attaching him with the pole so as
to protect himself. Whereas the learned counsel for the respondents/ claimants
would submit that there was no specific plea taken in the counter and no
evidence was also adduced.
8. At this juncture, I would like to refer to the provisions of the
Contract Labour (Regulation and Abolition) Act, 1970. A mere reading of Section
20 of the said Act would amply make the point clear that it is the duty of the
employer to see that the workman is provided with safety measures/ equipments.
It is also the duty of the employer to see to it that in the event of the
contractor not supplying such safety equipments, the principal employer himself
should provide. Here, in the counter there is nothing found highlighted as to
what sort of safety measures, the deceased was expected to adhere to and as to
how he allegedly failed to violate the same. There is also nothing to
demonstrate that such safety equipments were provided to the deceased. Hence,
in the absence of specific pleading and proof, I could see no infirmity in the
conclusion arrived at by the lower authority to the effect that the occurrence
tookplace in the course of employment and the principal employer, viz., the
appellants herein was liable.
9. For comprehensively deciding the issue, I would like to scrutinize
further the genuineness of the case. The First Information Report emerged at
the earliest point of time. The neighbouring land owner would clearly highlight
that while the deceased was performing his work at the electricity pole,
pertaining to power house, the de facto complainant saw him falling down with
burn injuries due to electrocution. As such I could see that this is a genuine
case, in which the deceased employee died while discharging his duty as an
employee under the principal employer, viz., the Electricity Board. Hence, no
interference is required with regard to the finding of the lower authority and
accordingly, this point is decided in favour of the respondents/claimants and as
against the appellants/Electricity Board.
Substantial Question of Law (ii):
10. At the outset itself, I would like to refer to Section 21 of the
Contract Labour (Regulation and Abolition) Act, 1970 and it is extracted here
under for ready reference:
“21. Responsibility for payment of wages.- (1) A contractor shall be
responsible for payment of wages to each worker employed by him as contract
labour and such wages shall be paid before the expiry of such period as may be
prescribed.
(2) Every principal employer shall nominate a representative duly
authorised by him to be present at the time of disbursement of wages by the
contractor and it shall be the duty of such representative to certify the
amounts paid as wages in such manner as may be prescribed.
(3) It shall be the duty of the contractor to ensure the disbursement of
wages in the presence of the authorised representative of the principal
employer.
(4) In case the contractor fails to make payment of wages within the
prescribed period or makes short payment, then the principal employer shall be
liable to make payment of wages in full or the unpaid balance due, as the case
may be, to the contract labour employed by the contractor and recover the amount
so paid from the contractor either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the contractor”.
(emphasis supplied)
11. A mere perusal of the cited Section and more specifically the
underlined portion would leave no doubt in the mind of any one that it is the
duty on the part of the principal employer to monitor as to what is the amount
of wage paid to the employee concerned and in such a case the employer cannot be
heard to contend that the legal heirs of the deceased should have proved as to
what was the quantum of wages/salary of the deceased. It is a trite proposition
of law that a person having knowledge about a particular fact has to divulge it
before the Court and he cannot expect the other party to prove it. Here, the
Electricity Board admittedly the principal employer cannot simply demand the
legal heirs of the deceased employee to prove by documentary evidence as to what
was the rate of wages, the deceased was earning per day. In fact, the lower
authority adhered to Section 4-A of the Workmen Compensation Act, 1923 correctly
did choose the minimum amount of Rs.4000/- (Rupees four thousand only) as the
monthly wages of the employee as the accident occurred during the year 2004,
after the Amendment Act of 2000. Hence, I could see no infirmity in the order
passed by the lower authority.
12. I, therefore do not find any merit in this Appeal and accordingly it
is dismissed, by confirming the award of the lower authority. No costs.
Consequently, the connected M.Ps. are also dismissed.
smn
To
The Court of Workmen’s Compensation
(Deputy Commissioner of Labour),
Tiruchirappalli.