S.G. SHAH, J.

1. Heard learned Advocate Ms. Khyati Hathi for appellant No. 1-Taluka Development Officer and learned Advocate Mr. Divyank Tripathi for Mr. Premal S. Rachh for respondent No. 1 and learned Advocate Mr. Premal Joshi for respondent No. 2 in First Appeal No. 3268 of 2014 who is also appearing for the appellant in First Appeal No. 2217 of 2015. Perused the record.

2. In First Appeal No. 3268 of 2014 appellant is original-opponent No. 6 which is considered as a principal employer whereas in First Appeal No. 2217 of 2015, appellant is actual employer being original-opponent No. 1. Thereby, both the opponents/appellants have challenged the same judgment and award dated 9-5-2013 in Workmen’s Compensation Fatal Application No. 51 of 1998 wherein Commissioner under the Workmen Compensation Act and Labour Court of Jamnagar has awarded an amount of Rs.1,97,060/- with 9% interest and 25% penalty to be paid by both the opponents being original-employer i.e. Contractor of work and principal employer.

3. Principal employer being Taluka Development Officer has challenged the award contending that they have not employed the deceased-victim, and therefore, they are not liable to pay compensation. It is also contended by both the appellants that alleged incident has taken place almost after five months from the date of completion of work contending that work was completed on 22-3-1997. Opponent No. 1-original employer of deceased-victim of incident has also challenged the award taking the same ground that work was over and deceased-victim of the incident was voluntarily working on construction site on behalf of the village people to add more rooms in the school premises.

4. I have perused the available record so also R. & P. It is an undisputed fact that on 18-8-1997 one Vinubha Dolubha had received fatal injuries on construction site of the school wherein work for construction of school assigned by the opponent No. 6 to opponent No. 1. Because of such accidental death, wife of the victim has preferred claim under the Workmen’s Compensation Act, 1923 before the Commissioner wherein both the respondents have though appeared and though taken active part during the trial by cross-examining the claimant and by examining the witness on behalf of opponent No. 1, unfortunately, both of them have failed to prove on record by appropriate evidence that in fact, work of construction of school was over as back as in the month of March, and thereby, no work was carried out by them and that in fact, village people have started the work of adding one more room in school premises on their own, and therefore, they have allowed the victim to carry out further construction. Thereby, it is submitted that the deceased-victim was working on site on his own and he was not employee of opponent No. 1 as a Contractor or opponent No. 6 as a principal employer by whose order working of construction of school was carried out by opponent No. 1.

5. Perusal of R. & P. makes it clear that though such stand is taken before the Commissioner, unfortunately, neither of the appellants/opponents have produced any evidence on record to confirm that work of contract is over, and thereby, deceased was not in employment, and thereby, not employer of either of the appellant, and therefore, he is not entitled to any compensation from them. It is also not proved that deceased was doing work on his own as per the requirement of the village people, and therefore, at the most he is doing work for and on behalf of the village people and neither for the Contractor nor the principal employer who has given work under the contract to the Contractor.

6. In support of such submission, appellants are relying upon Exh. 108 the 4th bill for the work done by the Contractor submitting that this is last bill dated 30-3-1997, and thereafter, there is no bill and thus, it is final bill and that amount of all the bills raised by the Contractor is for the total amount of contractual work, and