{"id":84054,"date":"2010-03-30T00:00:00","date_gmt":"2010-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dy-engineer-vs-karshanbhai-on-30-march-2010"},"modified":"2015-05-06T09:44:21","modified_gmt":"2015-05-06T04:14:21","slug":"dy-engineer-vs-karshanbhai-on-30-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dy-engineer-vs-karshanbhai-on-30-march-2010","title":{"rendered":"Dy.Engineer vs Karshanbhai on 30 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dy.Engineer vs Karshanbhai on 30 March, 2010<\/div>\n
Author: K.M.Thaker,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/3770\/2001\t 10\tJUDGMENT \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 3770 of 2001\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.M.THAKER\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nDY.ENGINEER,GEB\n& 1 - Appellant(s)\n \n\nVersus\n \n\nKARSHANBHAI\nGANESHBHAI - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nSP HASURKAR for\nAppellant(s) : 1 - 2. \nNone for Defendant(s) : 1, \nRULE SERVED\nfor Defendant(s) : 1.2.1,1.2.2\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 30\/03\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
1.\tThis
\nappeal under Section 30 of the Workman’s Compensation Act arises from
\nthe award dated 23rd
\nMarch 2001 passed by the Commissioner of Labour in Workman
\nCompensation Case (fatal) No. 87 of 1993 granting a sum of Rs.
\n70,384\/- towards compensation with interest at the rate of 6% and
\nalso granting additional compensation at the rate of 50% towards
\npenalty.\n<\/p>\n
2.\tBy
\norder dated 29th August 2001 the appeal was admitted and
\nthe Court, by the interim order dated 29th August 2001,
\npermitted the opponent to withdraw 40% of the deposited amount.\n<\/p>\n
3.\tDespite
\nthe service of the process, the opponents have not entered
\nappearance. Mr. Hasurkar learned advocate has appeared for the
\nappellant-Board.\n<\/p>\n
4.\tThe
\nfacts relevant for the purpose of deciding the dispute raised by the
\nappellant are that one Mr. Labhubhai Karshanbhai was engaged by the
\nappellant-Board as an apprentice under the provisions of the
\nApprentices Act 1961 (hereinafter referred to as the  1961 Act )
\nand he was, at the relevant time, working as an apprentice-lineman.
\nWhile working as an apprentice-lineman the said Labhubhai attended
\nthe call by a consumer of the appellant-Board and while attending the
\nfault he met with an accident while attending the fault in an
\nelectric transformer\/supply line and succumbed to the injuries. After
\nthe unfortunate and accidental death, the parents of the deceased
\nserved notice on the appellant-Board demanding compensation. However,
\nthe appellant-Board did not make the payment. Hence, the parents
\nfiled the aforesaid Workman s Compensation (fatal) Case No. 20 of
\n1993 (renumbered as 87\/1983 after the case was transferred to the
\nlearned Commissioner at Bhavnagar) and claimed compensation to the
\ntune of Rs. 1 lac and also additional compensation as penalty at the
\nrate of 50% of the compensation and interest thereon. The claim was
\nmade on the premise that the said Mr. Labhubhai died on account of
\naccident which arose out of and in the course of employment. The
\nclaimants asserted that the deceased was being paid Rs. 800\/- towards
\nwages and that at the time of his death he was 22 years old and that
\ntherefore if the relevant factor was applied the claimants would be
\nentitled to claim and receive Rs. 1 lac towards compensation. In the
\napplication they also maintained that in view of the  default in
\nmaking payment, the opponents were also obliged in law to pay further
\namount towards  penalty and interest.\n<\/p>\n
5.\tThe
\nclaim was resisted by the appellant-Board mainly on the ground that
\nthe Board had no liability to pay compensation as the deceased was
\nnot a workman employed by it but was working as an apprentice and was
\nbeing paid stipend at the rate of Rs. 330\/- per month. The
\nappellant-Board also claimed in their reply before the learned
\nCommissioner, that as an apprentice the deceased had gone to attend
\nthe fault on holiday unauthorisedly.\n<\/p>\n
6.\tMr.\n<\/p>\n
Hasurkar submitted that the appellant is,  mainly aggrieved by the
\nimpugned award because the learned Commissioner has ignored the
\ndocumentary evidence on record evidencing that the deceased was being
\npaid Rs. 330\/- towards stipend as an apprentice. He submitted that by
\nignoring the said material evidence the learned Commissioner
\nproceeded to quantify the compensation by taking into account the
\nminimum wages prescribed under the provisions of Minimum Wages Act
\nthough not relevant and\/or attracted in the facts of the case. The
\nappellant-Board, being aggrieved by such decision of the learned
\nCommissioner, is before this Court in this appeal.\n<\/p>\n
7.\tThe
\npurport of the said defence is that neither the factum of the
\naccident nor the death of said Mr. Labhubhai is in dispute. Likewise
\nit is also not in dispute that the deceased was, though as an
\napprentice, engaged by and working with appellant-Board. It is also
\nnot in dispute that said Mr. Labhubhai died as he met with an
\naccident while attending fault in the transformer\/supply line of the
\nappellant Board’s consumer. In light of the contention raised by the
\nappellant-Board, it emerges that the grievance of the appellant is
\nwith regard to the learned Commissioner s decision about the income
\nof the deceased.\n<\/p>\n
8.\tMr.\n<\/p>\n
Hasurkar learned advocate for the appellant has submitted that as an
\napprentice, the deceased was being paid stipend of Rs. 330\/- per
\nmonth and learned Commissioner is, therefore, not justified in taking
\ninto account the rate of minimum wages prescribed under the provision
\nof Minimum Wages Act. Mr. Hasurkar did try to raise contention that
\nthe deceased cannot be said to be  workman  of the
\nappellant-board and\/or the appellant-Board does not have any
\nstatutory obligation to pay compensation on account of the accidental
\ndeath of the Mr. Labhubhai as he was not  workman  within the
\nmeaning of the terms defined under Section 2(n) of the 1923 Act.\n<\/p>\n
9.\tAt
\nthe outset the appellant s contention raised in light of the status
\nof the deceased as apprentice deserve to be addressed. The appellant
\nhas claimed that the deceased was engaged only as an apprentice and
\nthat therefore he cannot be said to be  workman  within the
\nmeaning of the term under Section 2(n) of the Act. Hence, he would
\nnot be entitled to receive any compensation under the provision of
\n1923 Act. In this regard it is necessary to take into account section
\n16 of the 1961 Act which read thus:-\n<\/p>\n
16.
\nEmployer’s liability for compensation for injury.- If personal
\ninjury is caused to an apprentice by accident arising out of and in
\nthe course of his training as an apprentice, his employer shall be
\nliable to pay compensation which shall be determined and paid, so far
\nas may be, in accordance with the provisions of the Workmen’s
\nCompensation Act, 1923 (8 of 1923), subject to the modification
\nspecified in the Schedule.\n<\/p>\n
10.\tThe
\nsaid provision obliges an employer of an apprentice who suffers
\npersonal injury during his apprenticeship period on account of
\naccident arising out of and in the course of his training to pay
\ncompensation to be determined in accordance with the provision under
\n1923 Act, subject to the modification prescribed under the statute.\n<\/p>\n
11.\tIt
\nis not disputed by the appellant-Board that on 28th August
\n1993 (i.e. the unfortunate day on which the accident occurred) the
\ndeceased Mr. Labhubhai was engaged as an apprentice. In fact the
\ndocument placed on record by the appellant-Board demonstrated that at
\nthe material point of time the deceased was engaged and was working
\nas an apprentice with the appellant-Board.\n<\/p>\n
12.\tThus
\nin view of the provision under Section 16 of the Act of 1961, the
\nappellant-Board s objection to pay compensation on the ground that
\nthe deceased was merely an apprentice and not a workman fails and
\ndoes not deserve to be entertained. Hence, the said contention is
\nrejected at the threshold .\n<\/p>\n
13.\tIt
\nis appropriate to record that realizing the futility of raising the
\nsaid contention in view of the provision under the Act of 1923 read
\nwith the Provisions of the Act of 1961, Mr. Hasurkar learned advocate
\ndid not carry the said contention further.\n<\/p>\n
14.\tNow
\nso far as the second objection is concerned it deserves to be noted
\nthat the learned Commissioner has held that it is an employer s
\nobligation to pay minimum wages to his employee and that therefore
\nfor the purpose of computation of compensation payable on account of
\nthe accident nothing less than minimum wages can be taken into
\naccount. On the other hand the learned Commissioner has accepted the
\nappellant-Board s contention and has held that the deceased was
\nworking as an  apprentice  at the relevant time. In this view of
\nthe matter the question which would arise is that having accepted
\nthat the deceased was an apprentice under the Provisions of the Act
\nof 1961, whether it is open and permissible for the learned
\nCommissioner to ignore the payment of  stipend  which was
\nactually being made to the deceased and instead to proceed by taking,
\nas the base, the minimum wages payable to a  workman .\n<\/p>\n
15.\tSo
\nas to appreciate the objection of the appellant-Board, it is
\nnecessary to take into account the provision contained under Section
\n13 of the Act of 1961:\n<\/p>\n
 13.
\nPayment  to apprentices.- (1) The employer shall pay to every
\napprentice during  the period  of apprenticeship training such
\nstipend at a  rate not  less than  the [prescribed minimum rate, or
\nthe rate which was  being paid  by the  employer on  1st January,
\n1970 to  the category of  apprentices  under which  such apprentice
\nfalls, whichever is higher,] as may be specified in the contract of
\napprenticeship  and the stipend so  specified shall  be paid at such
\nintervals and subject to such conditions as may be prescribed.\n<\/p>\n
[(2)
\nAn  apprentice shall  not be  paid by  his employer on the basis of
\npiece work  nor shall  he be  required to  take part  in any output
\nbonus or other incentive scheme.]   <\/p>\n
16.\tIn
\nview of the said provision it is necessary to take into account the
\nschedule of the 1961 Act because Section 16 provides that the
\ncompensation  shall be determined and paid, so far as may be, in
\naccordance with the provision of Workmen s Compensation Act 1923,
\nsubject to modification specified in the schedule. It is provided
\nunder the schedule to the Act of 1961 that:\n<\/p>\n
 In
\nthe Workmen’s Compensation Act, 1923,-\n<\/p>\n
(1)<\/span><\/p>\n
in section 2,-\n<\/p>\n
(a)
\nfor clause (e), substitute-\n<\/p>\n
\t(e) employer
\nmeans an employer as defined in the \tApprentices Act, 1961, who has
\nengaged one or more \tapprentices;\n<\/p>\n
(b)
\nomit clause (k);\n<\/p>\n
(c)
\nfor clause (m), substitute-\n<\/p>\n
\t(m) wages
\nmeans the stipend payable to an \tapprentice under section 13(1) of
\nthe Apprentices \tAct, 1961;\n<\/p>\n
(d)
\nfor clause (n), substitute-\n<\/p>\n
\t(n) workman
\nmeans any persons who is engaged as an \tapprentice as defined in the
\nApprentice Act, 1961, \tand who in the course of his Apprenticeship
\n\ttraining is employed in any such capacity as is \tspecified in
\nSchedule II <\/p>\n
17.\tThus
\nfor the purpose of section 2(n) of 1923 Act, an  apprentice
\nunder the Act of 1961 is deemed to be a  workman  within the
\nmeaning of the said term under the Act of 1923 and the  stipend
\npayable to such apprentice under Section 13(1) of the Act of 1961 is
\ndeemed to be  wages  for the purpose of Section 2(m) of the Act
\nof 1923 and the employer as defined under the Act of 1961 is deemed
\nto be an employer for the purpose of the Act of 1923 as well.\n<\/p>\n
18.\tUnfortunately,
\nwhile taking into account the laudable principle requiring payment of
\nwages at the rate of minimum prescribed under the Minimum Wages Act,
\nlearned Commissioner overlooked the provisions under Section 13 and
\n16 of the Act of 1961 read with the schedule thereof.\n<\/p>\n
19.\tA
\nconjoint reading of Section 13, 16 and the schedule of the Act of
\n1961 brings about the requirement that the employer who has engaged
\nan appreciate in compliance with the provisions under the Act of 1961
\nshall be obliged to pay compensation, in the event of accident
\narising out of and in the  course of training of the appreciate, to
\nan appreciate or his legal representatives and for the purpose of
\nquantifying the compensation the  stipend  paid to the apprentice
\nshall have to be taken into account.\n<\/p>\n
20.\tIn
\npresent case it emerges from the record that the appellant-Board had
\nplaced on record the copy of the memo of appointment (i.e.
\nappointment order) of deceased as an apprentice and also a statement
\ncontaining details of the stipend paid to the deceased.\n<\/p>\n
21.\tThus
\nthe documents available on record before the learned Commissioner
\nconclusively demonstrated that the deceased was working as an
\napprentice-lineman and was being paid  stipend  at the rate of
\nRs. 330\/- per month.\n<\/p>\n
22.\tHence
\nsubject to the other provisions, the compensation could have been and
\nought to have been calculated on the basis of  stipend  paid to
\nthe deceased and not by importing the provision and concept under the
\nMinimum Wages Act. There is a clear mandate under the provision of
\nthe Act of 1961 which expressly provides the manner in which the
\ncompensation has to be calculated and paid to apprentice in the event
\nof accident out of and in the course of his training. Such mandate
\ncould not have been overlooked and ignored by the learned
\nCommissioner. Furthermore, in absence of incorporation – either
\nexpress or even implied-of the minimum wages Act and\/or the concept
\nof payment of wages at the minimum rate prescribed under the Minimum
\nWages Act, in the Act of 1923 by the legislature, the authority
\ncreated under the statute could not have imported and imposed such
\nobligation more so in face of clear mandate directing payment of
\ncompensation to an apprentice as per the stipend paid to the
\napprentice.\n<\/p>\n
23.\tFor
\nthe aforesaid reasons the impugned directions requiring payment of
\ncompensation calculated on the basis of Rs.800\/- i.e. applicable
\nminimum wages deserves to be set aside and is accordingly set aside
\nto that extent.  The appellant shall pay compensation on the basis of
\nthe stipend amount.  Fresh calculation to be made accordingly by the
\nlearned Commissioner.  The other directions regarding interest and
\npenalty are not challenged, hence, not disturbed.  After fresh
\ncalculation in accordance with the above mentioned discussion and
\ndirection, the learned Commissioner shall refund the difference
\namount (out of the deposited amount) to the appellant.\n<\/p>\n
\tFor
\nthe foregoing reasons, the appeal is partly allowed. Rule is made
\nabsolute to that extent.\n<\/p>\n
(K.M.THAKER,J.)<\/p>\n
Suresh*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dy.Engineer vs Karshanbhai on 30 March, 2010 Author: K.M.Thaker,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-84054","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDy.Engineer vs Karshanbhai on 30 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dy-engineer-vs-karshanbhai-on-30-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dy.Engineer vs Karshanbhai on 30 March, 2010 - 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