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2005 Supreme(J&K) 361
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Divisional Manager - Appellant
Versus
Shabir Ahmad Hajam & Ors. - Respondent
CIMA No. 63/2002
Decided On : 17 December, 2005
Advocate For Appellant: M. Aijaz
Advocate For Respondent: None
The liability of the principal when a contractor is engaged for work under the Workmens Compensation Act.
Headnote:
Workmens Compensation Act - Labourer - Section 30, Section 12(1), Section 2(1)(e) - The court discussed the definition of 'employer' and the liability of the principal when a contractor is engaged for work. It referenced case law to establish that if a contractor executes work for the government and engages a laborer, the state is considered the employer under the Workmens Compensation Act.
Fact of the Case:
The petitioner sustained injuries while working in a forest compartment and filed a claim petition under the Workmens Compensation Act. The appellant argued that they should not be held liable as the petitioner was not their employee.
Finding of the Court:
The court found that the appellant's plea was not raised before the trial court and that the evidence proved the petitioner was working in the compartment engaged by a contractor. The court held that the state is considered the employer when a contractor executes work for the government and engages a laborer.
Issues: Whether the laborer was considered a workman and whether the appellant was the employer.
Ratio Decidendi: The court applied the definition of 'employer' and referenced case law to establish the liability of the principal when a contractor is engaged for work.
Final Decision: The appeal was dismissed, and the court upheld the trial court's award.
2. Mr. Aijaz, learned counsel for the appellant, stated that petitioner (respondent No.1 herein) was not the employee of State Forest Corporation thus, the appellant should not have been saddled with the liability. It is stated that the following substantial questions of law are involved in this appeal:-
(I) Whether the labourer who is employed by the Contractor for extracting timber from forest is a workman?
(II) Whether the appellant is employer?
3. Heard. Considered.
It is profitable to reproduce proviso to Section 30 of Workmens Compensation Act herein, which reads as under:-
"Provided that no appeal shall lies against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:
4. An appeal against the award passed by Commissioner will lie only when substantial question of law is involved.
5. The important question is whether the plea taken by the appellant in the memo of appeal was taken before the trial court or not?
6. While going through the objections, it appears that appellant has nowhere pleaded that if a contractor engages labourer(s) on the site allotted to contractor the said labourer(s) cannot fall with the definition of Workman and appellant/department cannot be held to be the employer.
7. It appears that petitioner (respondent No.1 herein) was hit by a rolling log and sustained injuries while working in the compartment No.43 at Nai Harai.
8. The trail Court framed issues in the case and examined the witnesses. All the witnesses examined by the parties in the trial court have deposed that the deceased sustained injuries while working in compartment No.43 at Nai Harai. It is not the case of the appellant/non-applicant that the deceased was not working in the compartment and the work was not allotted to the contractor.
9. The perusal of the evidence disclose that petitioner (respondent No.1 herein) was working in the compartment No.43. It is also proved rather admitted that Contractor had engaged labourers including the respondent No.1 for cutting down trees in the forest compartment No.43.
10. It is profitable to reproduce the definition of `employer given in Workmens Compensation Act herein:-
"2(1)(e). "employer" includes any body of persons whether incorporated or no and any managing agent of an employer and the legal representative of a deceawed employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him;"
11. It is profitable to reproduce Section 12(1) of Workmens Compensation Act herein which reads as under:-
"12.Contracting.-(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contract with any other person (hereinafter in this section referred to as the contractor for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the
