District Co-ordinator, Mahathma Gandhi National Rural Employment Guarantee Scheme, Idukki v. Isha Hassan Pillai, Seenath, Kattappana Block Panchayat, Upputhara Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** ## **MFA.No.79 OF 2017** **AGAINST THE ORDER IN WCC 86/2009 DATED 13-09-2013 OF THE COMMISSIONER FOR EMPLOYEE'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), KOTTAYAM** ## **APPELLANT/OPPOSITE PARTY NO.1:** **DISTRICT PROGRAMME OFFICER NREGA, COLLECTORATE, PAINAVU P.O., IDUKKI - 685 603.** **BY GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS & 2ND & 3RD OPPOSITE PARTIES:** - **1 ISHA HASSAN PILLAI W/O. HASSAN PILLAI, AYAPPARA HOUSE, K.CHAPPATH POST, KARIMTHARUVI, IDUKKI DIST. - 685 505.** - **2 SEENATH W/O. RASHEED, AYAPPARA HOUSE, K.CHAPPATH POST, KARIMTHARUVI, IDUKKI DIST. - 685 505.** - **3 THE SECRETARY KATTAPPANA BLOCK PANCHAYAT, KATTAPPANA - 685 508.** - **4 THE SECRETARY UPPUTHARA GRAMA PANCHAYAT, UPPUTHARA POST - 685 505.** - **R1 BY ADV. SRI.PREMCHAND R.NAIR R2 BY ADV. SRI.BIJU .C. ABRAHAM R3 BY ADV. SRI.M.V.RAJENDRAN NAIR R4 BY ADV. SMT.M.U.VIJAYALAKSHMI R4 BY ADV. SRI.R.RAJPRADEEP** ## **SRI.M.V.ANANDAN-SR.GP** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA.No.79 OF 2017 2** ## **JUDGMENT** The District Co-ordinator of the Mahathma Gandhi National Rural Employment Guarantee Scheme, Idukki, is the appellant in this appeal. 2. The appellant challenges the Award of the Court of the Commissioner for Employees Compensation (Deputy Labour Commissioner, Kottayam), in W.C.C.No. 86/2009, as per which, the appellant and two other opposite parties have been directed to pay an amount of Rs.3,34,669/- as compensation to respondents 1 and 2, who are the legal heirs of late Rasheed, on the finding that the deceased has succumbed to an accident on 10/09/2009 at about 9.15 a.m., while he was employed under the opposite party, including the appellant as a workman, under the NREG Programme at Government L.P.School, Karumtharuvi, Idukki. 3. The appellant says that the impugned Award had been issued only because at the time when the case was disposed of, there was no representation on his behalf, though his ## **MFA.No.79 OF 2017 3** written statements/objections had been placed on record. The appellant submits that had he been heard by the Court below, he would have been able to establish that no liability can be mulcted against him, on account of Section 28 of the National Rural Employment Guarantee Act, 2005 (hereinafter referred to as the 'NREG Act' for short), except the amount of exgratia payment, which is sanctioned under the Scheme of the Act, which is a maximum of Rs.25,000/-. The appellant says that this amount, in fact, has already been paid to respondents 1 and 2 and therefore, that no further liability could have been cast upon him. He thus prays that this appeal be allowed and the impugned Award be set aside. **==> picture [327 x 11] intentionally omitted <==** learned Senior Government Pleader appearing for the appellant; Shri.Premchand R.Nair, learned counsel appearing for respondent No.1; Shri.Biju C.Abraham, learned counsel appearing for respondent No.2; Shri.M.V.Rajendran Nair, appearing on behalf of respondent No.3 and ## **MFA.No.79 OF 2017 4** Shri.Brijesh Mohan, learned counsel appearing for respondent No.4. 5. Though various contentions are impelled in this appeal, I do not deem it necessary or appropriate to consider them on its merits, because, concededly, the impugned Award has been issued in the absence of the appellant. Of course, no fault can be found against the Compensation Commissioner in having done so, because, in spite of several opportunities, none of the opposite parties had chosen to be present when the matter was disposed of, though they have filed their objections. 6. The question, therefore, is whether the appellant is entitled to one more opportunity of establishing his case, particularly that the provisions of Section 28 of the NREG Act forbids the Compensation Commissioner from entertaining a further claim than the exgratia payments already paid. These issues certainly have been passingly referred to by the Compensation Commissioner in the ## **MFA.No.79 OF 2017 5** impugned Award, but a discussion on the legal issues have not been endeavoured and justifiably so, since these aspects were not argued at the time when the matter was disposed of. 7. I am not concluding that the Award of the Compensation Commissioner is in error, but only that an opportunity must be given to the appellant to establish his case, particularly on the law based on the objections filed by him earlier, however, without any further evidence being allowed to be taken. This, I am certain, is necessary in the best interests of justice and to ensure that the dialectical interests of the sides are adequately protected. 8. I am persuaded to this course also because no prejudice will be caused to the claimants, because the amounts under the Award of the Compensation Commissioner has already been deposited by the appellant, which, I am of the firm view, will continue to be under deposit until the matter is finally disposed **MFA.No.79 OF 2017 6** of by the said Commissioner. In the result and solely for the reasons above, I set aside the Award, but solely as against the appellant herein and confirming it against the other opposite parties, since they have not chosen to challenge the same; with a consequential direction to the Court of the Compensation Commissioner to afford an opportunity of being heard to the appellant and the claimants on the question as to whether the provisions of the NREG Act would operate as a barricade for consideration of the Workmen's Compensation Case against the appellant and whether the terms of the NREG Scheme would dis-entitle the claimants from seeking anything more than the exgratia payment already given to them by the appellant. While doing so, the Compensation Commissioner will certainly consider the judgment of this Court in _**Soniya Jayakumar v. Secretary to Government & Others [2019 (5) KHC 47]**_ as also the judgment of the _**High Court of**_ ## **MFA.No.79 OF 2017 7** _**Himachal Pradesh in Secretary, Rural Development Department and Others v. Jethi Devi [F.A.O.No.149 of 2016],**_ copies of which shall be placed before the said Commissioner by the claimants. Since this mater has been pending for the last several years - the W.C.C. is being of the year 2009 - I direct the Compensation Commissioner to consider these aspects alone, without disturbing any of the others; and issue a fresh order as expeditiously as is possible, but not later than three months from the date of receipt/production of a copy of this judgment. I reiteratingly clarify that I have not considered the contentions raised by the appellant in this appeal on its merits and that it will be up to the Compensation Commissioner to take a decision as per law, however, without disturbing the findings and conclusions against the other opposite parties. **MFA.No.79 OF 2017 8** This appeal is thus ordered, but without making any order as to costs and thus directing the parties to suffer their respective costs. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/7.2.2020**