Employer failed to prove that the injured employee was not working under him.

S.K.KRISHNAN, J.

The second respondent in C.M.A.No.811 of 1990 namely,M/S. Gupta Enterprises is the appellant. Aggrieved over the judgment made in C.M.A.811/90 allowing the appeal filed by the workman,the Company has preferred this Appeal.

2. The workman,Irusappan filed an application for grant of compensation for the injuries and permanent disability of 25% sustained by him during the course of his employment on 18.11.1986 under the appellant. The appellant herein resisted the claim on the ground that he was never under the employment of the appellant and they are also not aware of the accident said to have taken place on 18.11.96. On hearing both sides and also after perusing the materials on records, this Court allowed the appeal holding that the 1st respondent herein was a workman under the appellant and he is entitled to receive Rs.26,696/- as compensation together with interest at the rate of 12% per annum. Aggrieved over the same, the Company-M/S.Gupta Enterprises has preferred this Appeal.

3. The only point that arise for consideration in this appeal is whether this appeal can be allowed or not?

4. The appellant herein M/s Guptha Enterprises, is running its business at Sydenhams Road, Madras-12 from 1985. The contention of the appellant is that the first respodnent never worked as an employee under them at any point of time. It is stated that the first respondent attended the services of the appellant Company from 1983 onwards. It is contended by the appellant that the first respondent has not established the fact that he was working as a labourer under the appellant from 1983 onwards. In this connection, the learned counsel appearing for the appellant would contend that the Company itself was established during the year 1985 as per the Certificate of Registration issued under Form E. In such circumstances, the learned counsel would point out that the first respondent could not have attended the work under the appellant as a worker from 1983 onwards. In this juncture,it is pertinant to discuss relevant grounds raised by the appellant in this appeal.

a) With regard to the relief of compensation sought for by the first respondent under Workmen's Compensation Act, the first respondent has not established before the Commissioner for Workmen's Compensation that he was employed under the appellant. Inspite of that the learned Judge of this Court without considering this aspect held that the first respondent is a workman and entitled to receive the said compensation for the injuries sustained by him during the course of his employment under the appellant.

b) The learned counsel appearing for the appellant has referred one another ground that the learned Judge of this Court instead of remitting the matter to the Commissioner for Workmen's Compensation for fresh disposal, has assumed the role of the workmen's Compensation Commissioner and set aside the order passed by the Commissioner.

c) Yet another ground urged is that the learned Judge while disposing of matter awarded interest at the rate of 12% per annum in favour of the workman which is unsustainable. It is pointed out by the learned Judge while fixing the interest has assumed the role of the Commissioner, Workmen's Compensation.

5. In this connection, the learned counsel appearing for the first respondent would vehemently contend that since the Commissioner has committed an apparent error while deciding the matter. In such circumstances, while considering the matter, the learned Judge of this Court after verifying the relevant records produced by the workman came to the conclusion that the Deputy Commissioner of Labour has committed an apparent error .Since the Deputy Commissioner of Labour has not discussed the relevant facts referred in Exs A1, A3 and came to the wrong conclusion that the workman/first respondent has not established his case before him, however, the learned Judge has elaborately discussed the relevant facts refered in Exs A1 and A3and came to the