ORDER

1. Short question which fall for consideration of this Court in this appeal is whether Gujarat Electricity Board being principal employer is liable to pay compensation.

2. This appeal under section 30 of the Employees Compensation Act, 1923 (‘the Act, 1923’ for short) challenges judgment and award dated 13.09.2004 passed by Workman Commissioner, Godhra in Workman Compensation Application No.785 of 1993, whereby, Workman Commissioner granted compensation of Rs.87,351.60 ps with 9% interest from 15.01.1993 till realization against defendant no.3 considering to be employer and also granted penalty amount of Rs.43,675.80 ps.

3. Original claimants were heirs of deceased – Manga Kadwa, they are appellants herein.

4. Facts which are uncontroverted is that deceased was survived his widow and he lost his life at the age of 25 years on 09.01.1993.When deceased under instruction of contractor – Rupabhai Patel climbed electric pole for tying wire, at that time, since electric wire was open and electricity was passing through electric wire, deceased was electrocuted and he lost his life. The claimants claimed compensation of Rs.91,102/- with 12% interest with 50% penalty from opponents joining Gujarat Electricity Board as principle employer, Jr. Engineer as responsible officer of GEB and Mr. Rupabhai Patel as contractor.

5. In this factual background, Workman Commissioner assessing facts of the case and background of evidence, applied factor of 207.98 as he found age of deceased to be 30 years and granted compensation to the tune of Rs.87,351.60 ps. And also awarded penalty of Rs.43,675.80 paise.

6. I have heard learned advocate Mr.Kharadi for the appellants, learned advocate Mr.Raval for respondent no.3 and learned advocate Ms.Maya Desai for respondent – GEB now DGVCL.

7. Workman Commissioner exonerated opponent no.1 and 2 being GEB and its Engineer without assigning any reasons and fasten liability upon on contractor considering him to be principal employer.

8. Learned advocate Mr.Kharadi referred to section 12 of the Act, 1923. Learned advocate Mr.Raval also referred to same provision.

9. As against aforesaid submission, learned advocate Ms.Desai referred to Exh.47 and 48 to submit that specific contract has been executed between the GET and contractor. She submits that admittedly deceased was employee of contractor – Mr.Rupabhai Patel, he was incharge of site and he has instructed deceased to climb on the electric pole to tie wire. Therefore, in that circumstances, learned Trial Court has passed decree exonerating GEB.

10. I am not impressed by submission of learned advocate Ms.Desai, more particularly after perusing section 12 of the Act, 1923. It 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 contracts 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 employee employed in the execution of the work any compensation which he would have been liable to pay if that employee 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 employee under the employer by whom he is immediately employed.

(2)Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor , or any other person from whom the employee could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this s