IMPORTANT POINT
Right of any person to claim compensation under Section 124 or Section 124-A of Railways Act, 1989 shall not affect the right of any such person to recover compensation payable under Employees Compensation Act, 1923.

JUDGMENT :

MANOJ MISRA, J.

1. This appeal is directed against the judgment and order of the High Court of Gujarat at Ahmedabad (in short “the High Court”) dated 24.02.2016, passed in First Appeal No. 112 of 2016, by which the appeal of the appellant under Section 30 of the Employees Compensation Act, 1923 (formerly known as the Workmen’s Compensation Act, 1923 hereinafter referred to as the 1923 Act) against the order of the Workmen Compensation Commissioner (in short “the Commissioner”) in W.C. Case No. 05 of 2010, has been dismissed.

FACTS

2. The husband of the first respondent was appointed as a Constable in the Railway Protection Special Force, a unit of the Railway Protection Force (in short “the RPF”) on 27.12.2006. He died on 23.04.2008 in an accident in the course of his employment. On his death, the first respondent along with other heirs of the deceased filed a claim petition under the 1923 Act for compensation by claiming, inter-alia, that on the date of his death, the deceased was aged 25 years and getting monthly wages of Rs. 8,000/-. The claim was resisted by the appellants, inter-alia, on the ground that the deceased was part of the Armed Forces of the Union and, therefore, not a workman; hence, the claim petition under the 1923 Act is not maintainable.

3. The Commissioner found that the relationship of workman-employer between the deceased and the non-claimant was admitted to the non-claimant; the deceased died in an accident in the course of his employment; and the deceased being a “Railway Servant” as per the provisions of Section 2(34) of the Railways Act, 1989 (in short, the 1989 Act), would be deemed to be a “workman” under Section 2(1)(n)(i) of the 1923 Act and, therefore, the claim petition was maintainable. Regarding the amount payable as compensation, applying the formula provided in Section 4 of the 1923 Act, the Commissioner determined the compensation payable as Rs. 4,33,820/- and directed it to be paid to the claimants within 30 days from the date of the order with 9% interest.

4. Aggrieved by the order of the Commissioner, the appellant filed a first appeal bearing number 112 of 2016 before the High Court under Section 30 of the 1923 Act. The thrust of the submissions before the High Court was that the definition of “workman” as per Section 2 (n) of the 1923 Act excludes any person working in the capacity of a member of the Armed Forces of the Union, therefore, since Section 3 of the Railway Protection Force Act, 1957 (in short “the 1957 Act”) declared the RPF as an Armed Force of the Union, the deceased being a constable in the RPF would not be a workman within the meaning of section 2 (n) of the 1923 Act; hence, claim petition under the 1923 Act was not maintainable.

5. The aforesaid plea raised by the appellant was not accepted by the High Court and the appeal was dismissed.

6. Aggrieved by the judgment and order of the High Court, this appeal has been preferred.

7. We have heard Mr. Vikramjit Banerjee, learned ASG assisted by Mr. Rajan Kr. Chourasia for the appellant and Ms. Prerana Chaturvedi and Mr. Shubhendu Anand for the respondents.

SUBMISSIONS ON BEHALF OF THE APPELLANT

8. On behalf of the appellant, it was submitted that the deceased was indisputably a member of the RPF which, as per Section 3 of the 1957 Act, is an Armed Force of the Union. Section 2 (n) of the 1923 Act defines a workman. By clause (n) of sub-section (1) of Section 2 of the 1923 Act, though workman, inter-alia, means a railway servant as defined in Section 2 (34) of the 1989 Act, any person working in the capacity of a member of the Armed Forces of the Union is excluded. Therefore, as, by virtue of Section 3 of the 1957 Act, the deceased was part of the Armed Forces of the Union, he was not a workman within the meaning of Section 2 (1)(n) of the 1923 Act and, in view thereof, the claim petition was not maintainable under the 1923 Act.

9. In addition to the above, it was argued that the deceased was not an employee specifically