CM APPL. 53011/2023 (Delay)

1. By way of the present application, the applicant/appellant seeks condonation of delay of 56 days in filing the accompanying appeal.

2. For the reasons stated in the application, the same is allowed and the delay of 56 days in filing the appeal is condoned.

3. Accordingly, the present application is disposed of.

FAO 265/2023 and CM APPL. 53010/2023 (stay) and CM APPL. 61956/2023 (for intimation of compliance of order)

1. The present appeal under Section 30 of the Employees' Compensation Act, 1923 (hereinafter the "EC Act") has been preferred by the appellant assailing the order dated 09.06.2023 passed by the learned Commissioner under the EC Act in Old No. ECD/155/ND/2022/630-631.

Vide the said order, the claim application filed by respondent nos. 1 to 4, being the legal heirs of late Sh. Sanoj Kumar, came to be allowed and the appellant was held liable to pay compensation of Rs.15,88,425/- on account of the death of late Sh. Sanoj Kumar along with funeral expenses of Rs.5,000/- and interest @ 12% per annum from 08.04.2022 till its realisation.

The appellant has also assailed the subsequent order dated 16.08.2023, whereby the review application filed by him against the order dated 09.06.2023 came to be dismissed.

2. Briefly stated, the respondents instituted the underlying claim application alleging that late Sh. Sanoj Kumar was employed by the appellant and, on 08.04.2022, while carrying out flooring work at the appellant's premises, suffered electrocution during the course of his employment, which resulted in his death. It was further alleged that the accident occurred on account of unsafe electrical fittings at the site and, consequently, the respondents were entitled to compensation under the provisions of the EC Act.

3. The appellant initially entered appearance before the learned Commissioner and filed a written statement disputing, inter alia, the existence of any employer-employee relationship between him and the deceased. It was accordingly contended that no liability could be fastened upon him. However, after filing the written statement, the appellant abandoned the proceedings and was proceeded against ex parte.

4. Thereafter, the respondents filed their evidence by way of affidavit and exhibited documents including the FIR lodged by a fellow workman of the deceased, detailing the accident in question; the death certificate of the deceased; and his post-mortem report. The learned Commissioner ultimately held that the deceased had sustained fatal injuries arising out of and in the course of his employment under the appellant and consequently awarded compensation in favour of the respondents. As noted above, the appellant's application seeking review of the aforesaid order also came to be dismissed. The present appeal has been filed challenging the same.

5. Learned counsel for the appellant challenges the impugned orders primarily on the ground that the learned Commissioner had erred by holding that an employer-employee relationship existed between the appellant and the deceased. He submits that the appellant had entered into an agreement dated 06.04.2022 with one Shyam Kumar, who had undertaken to execute the repair and flooring work at the appellant's premises, arrange the labour, and provide the requisite safety equipment. Lastly, he contended that the discrepancy regarding the timing of the incident between the FIR and the claim application casts doubt upon the respondents' case.

6. Coming first to the scope of Section 30 of the EC Act, it is indeed settled through a number of decisions that the scope of an appeal under Section 30 is limited. Under the scheme of the EC Act, the Commissioner is the last authority on facts. Being a welfare legislation, Parliament thought it fit to restrict an appeal only to a substantial question of law (Ref: Golla Rajanna & Ors. Vs. Divisional Manager & Anr. (2017) 1 SCC 45).

7. The principal challenge raised by the appellant is to the finding recorded by the learned Commissioner regarding the existence of an employer-employee relationship between the appellant and the deceased. The same is based on an alleged agreement dated 06.04.2022 statedly executed between the appellant and Shyam Kumar, by virtue of which the appellant seeks to be absolved of all liability.

8. It is not in dispute that the existence of such an agreement was pleaded by the appellant in the written statement filed before the learned Commissioner; however, no copy of the same was produced before the learned Commissioner at the evidence stage. This aspect has been specifically recorded by the learned Commissioner in the impugned order dated 09.06.2023. In fact, as noted above, the appellant stopped participating in the proceedings altogether after filing the written statement, and the matter proceeded ex parte. It was in these circumstances that the learned Commissioner considered the evidence led by the respondents and returned the findings now under challenge.

9. Notably, the review application filed by the appellant before the learned Commissioner against the order dated 09.06.2023 sought to place the said agreement on record. However, the impugned order dated 16.08.2023 dismissing the said application explicitly records that when the matter was fixed for arguments on the said application, the appellant once again remained absent, showing that he was no longer interested in pursuing the matter. In view of the aforesaid and keeping in mind that the EC Act is a welfare legislation, the learned Commissioner dismissed the appellant's review application.

10. A perusal of the alleged agreement dated 06.04.2022 shows that it is an unregistered document apparently executed on a plain sheet of paper. More importantly, the appellant has not placed any material on record to establish either its execution or its contents in accordance with law. Shyam Kumar, on whose behalf the entire defence is sought to be founded, was not even cited as a witness before the learned Commissioner. The agreement, therefore, remains an unproved document and, therefore cannot be looked into to dislodge the factual findings recorded by the learned Commissioner.

11. Furthermore, no explanation has been provided as to why the appellant ceased appearing in the proceedings before the learned Commissioner after filing of the written statement, as a consequence of which the matter had to proceed ex parte.

12. The appellant has also sought to rely upon the discrepancy regarding the timing of the incident. While the claim application mentions that the incident occurred at about 6:00 p.m., the FIR records the time of incident as 11:00 p.m. There is, however, no dispute with regard to the occurrence of the incident or the date on which it took place. It is also an admitted position that the work was going on under the instructions of the appellant, and it is not disputed that the death of the deceased occurred at the premises owned by the appellant. In the facts of the present case, the aforesaid discrepancy, by itself, is not of such a nature as would justify interference with the findings recorded by the learned Commissioner.

13. It is also relevant to note that the appellant's defence before the learned Commissioner and before this Court has remained substantially the same, namely, that the deceased was engaged by Shyam Kumar and not by the appellant. The learned Commissioner considered the said defence and rejected it on the basis of the material available before him. The appellant seeks to assail those findings by placing reliance upon the alleged agreement dated 06.04.2022, which was not proved before the learned Commissioner.

14. As noted hereinabove, an appeal under Section 30 of the EC Act is not an appeal on facts. The appellant has been unable to demonstrate that the findings recorded by the learned Commissioner are either unsupported by the record or otherwise suffer from any error giving rise to a substantial question of law.

15. In these circumstances, this Court is of the considered opinion that the findings returned by the learned Commissioner do not suffer from any perversity or legal infirmity warranting interference. The present appeal is, accordingly, dismissed.

16. The present appeal, along with the pending applications, is disposed of in the above terms.