The main legal point established in the judgment is the determination of the relationship between the employer and employee, the liability of the employer in case of willful disobedience by the employee, and the condonation of delay in filing a claim petition under the Employee's Compensation Act.

Valmiki J. Mehta, J. (Oral)

1. Respondent has been served way back for 11.9.2013. Today we are in March, 2014 i.e. six months after. An adjournment is asked for on behalf of the respondent for reading the case file. I refuse to grant the same, inasmuch as, it is necessary that counsel must not seek adjournment only for convenience on the ground that they are not prepared although they had sufficient time. This attitude is responsible for unnecessary pendency in courts. Besides, the facts of this case as stated below will show that the prayer for adjournment is not benign.

2. This first appeal is filed by the appellant (alleged employer) against the impugned order of the Commissioner dated 25.7.2013 which has allowed the claim petition filed by the respondent under the Employee’s Compensation Act, 1923.

3. The case as put up by the respondent was that he was appointed by the appellant since October, 2004 for doing flour kneading work and on 2.12.2004, at about 9.30 a.m when he was working on an electronic machine of flour kneading on the directions of Sh. Palaiji Junior of Sh. Prakashnandji, the respondent met with an accident as his right hand came under the machine. It is pleaded that respondent would not have worked on the machine unless there was pressure put by Sh. Palaiji Junior and Prakashnandji. On account of the accident allegedly arising out of and in the course of employment the claim petition was filed. I may note that the period of limitation for filing of a claim petition is two years as per Section 10 of the Act, and since the accident happened on 2.12.2004, the claim petition had to be filed ordinarily on or before 2.12.2006, but the claim petition was filed on 5.5.2008 i.e after a delay of over one year and five months.

4. The Commissioner has allowed the claim petition by holding that there is a relationship of employer and employee and that the accident took place on account of the respondent working in the course of his employment.

5. Before me, counsel for the appellant has urged that respondent was only a Sewak and not an employee, much less a paid employee. Respondent was specifically directed not to work on any electronic machine without supervision, but he did so in spite of instructions to the contrary and which consequently caused him injury. Reliance is placed on behalf of the appellant/employer which is a nonprofit making society, upon Section 3(1) proviso (b) (ii) of the Act that where there is a willful disobedience and thereafter the employee suffers an accident, the employer (assuming the appellant to be an employer) cannot be held liable. Counsel for the appellant also argues that the Commissioner has wrongly held that the appellant had not raised any pleading of respondent having been directed only to work on an electronic machine with supervision inasmuch as in para 4 of the reply on merits of the counter-affidavit of the appellant this aspect is specifically stated and this fact was also categorically proved as per para-9 of the affidavit filed by the witness of the appellant namely Sh. Vijendra Singh. Para-4 of the reply on merits and para-9 of the affidavit by way of evidence filed on behalf of the appellant read as under:-

Para-4 of the Reply

“That the contents of this para are wrong and denied. It is submitted that the petitioner’s only aim to stay with the respondent was for free food and accommodation and since he was not showing any interest in performing any duties assigned to him as a sewak, he was kept as a helping man in the kitchen as per this request and was given strict instructions to not operate any machine without anybody supervision. However, the petitioner while fiddling with the flour kneeding machine switched on the motor when no body was around which led to the accident.”

Para 9 of the affidavit by way of evidence

“That it is reiterated that there was never an employee-employer relationship between the Petitioner and the Respondent. The Petitioner was never ap