Manager Sree Narayana Higher Secondary School, Vadakara v. Sumi and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** **MFA(ECC).No.11 OF 2020** **AGAINST THE JUDGMENT IN ECC 320/2014 DATED 01-04-2019 OF THE EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL), ALAPPUZHA** ## **APPELLANT/1ST OPPOSITE PARTY:** **MANAGER SREE NARAYANA HIGHER SECONDARY SCHOOL, VADAKARA.** **BY ADV. SRI.R.K.MURALIDHARAN** ## **RESPONDENTS/APPLICANTS AND 2ND OPPOSITE PARTY:** - **1 SUMI** **W/O DECEASED RAJESH, DEVASAMPARAMBU, KOMMADY WARD, KOMMADY P.O.ALAPPUZHA-688 007.** - **2 SHYMALA,** **M/O DECEASED RAJESH, DEVASAMPARAMBU, KOMMADY WARD, KOMMADY P.O.ALAPPUZHA-688 007.** - **3 SURYA,** **D/O DECEASED RAJESH, REPRESENTED BY HER MOTHER SUMI, W/O DECEASED RAJESH, DEVASAMPARAMBU, KOMMADY WARD, KOMMADY P.O.ALAPPUZHA-688 007.** - **4 PRADEEPKUMAR,** **THAKKEKALAPPURAKAL, KAITHAVANA P.O.ALAPPUZHA-688 011.** **R1-3 BY ADV. SMT.I.SHEELA DEVI** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA.No.11 OF 2020** **2** ## **J U D G M E N T** This appeal, at the instance of the first opposite party in E.C.C.No.320/2014 on the files of the Commissioner for Employees Compensation (Industrial Tribunal), Alappuzha, assails the judgment of the said Tribunal, dated 01.04.2019, as per which, an amount of Rs.7,98,240/-, along with the interest at the rate of 12% per annum from the year 2011, has been awarded in favour of the respondents herein, who are the legal heirs of deceased Sri.Rajesh. 2. The constitutive facts which led to the initiation of proceedings before the Tribunal are that the afore mentioned Sri.Rajesh met with an accident while he was employed as a worker by the second opposite party – Sri.Pradeepkumar, for the erection of a “truss roof” over the permanent roof of a school by name “Sree Narayana Higher Secondary School, Vadakara, managed by the appellant. As per the appellant, the work was entrusted to the second opposite party - Sri.Pradeepkumar through Ext.D1 agreement dated 11.10.2010, wherein, he had **MFA.No.11 OF 2020** **3** agreed to ensure safety of all the workers under him and had also indemnified the appellant from any accident that may occur; but that in violation of the same, the contractor did not afford his workers sufficient safety equipments, thus leading to the unfortunate death of Sri.Rajesh in an accident, which occurred on 21.11.2011. 3. The appellant says that on the afore accident happening, the second opposite party - Sri.Pradeepkumar, approached him and gave him Ext.D2 affidavit, accepting entire liability with respect to the death of Rajesh and undertaking to take full responsibility for all consequences that would legally follow. The appellant further says that however, in an act of fairness, he had paid Rs.1 lakh to the legal heirs of late Rajesh, the respondents 1 to 3 herein, which is evident from Ext.A1 legal notice issued by them subsequently. 4. The appellant contends that there was no employeremployee relationship between him and the deceased Rajesh and therefore, that no liability under the Employees Compensation Act, 1923 (hereinafter referred to as 'the Act' for short) could have been mulcted against him. He submits that in spite of this, **MFA.No.11 OF 2020** **4** respondents 1 to 3 filed proceedings before the learned Tribunal, which has now culminated in the impugned order, finding him responsible under Section 12 of the Act. 5. I have heard Sri.R.K.Muralidharan, learned counsel for the appellant and Smt.Sheela Devi I, learned counsel appearing for respondents 1 to 3. boundary 6 **.** Sri.R.K,Muralidharan, learned counsel began his submissions by saying that, as is evident from the afore narration of facts, his client cannot be, in any manner, construed to be an employer under the contours of the Act; but that the learned Tribunal did not even consider his client's contentions on these lines, which he had supported by citing at least two judgments of this Court, namely **Govindan Nambiar v. Janaki [2003 (2) KLT 23]** and **Mayinkutty C. and another v. Parayil Balan Nair and others [2017 (5) KHC 189].** The learned counsel argued that had the learned Tribunal considered these two judgments, the impugned order certainly would not have been issued, mulcting liability upon his client. He then proceeded to add that the impugned order has been issued without proper application of mind because even though his client had not taken the box as **MFA.No.11 OF 2020** **5** a witness, the Tribunal has recorded that he had made certain admissions during his “cross-examination”. He completed his submissions by saying that the lack of proper appreciation by the learned Tribunal is further implicit from the order because, even though in Ext.A1 legal notice respondents 1 to 3 herein expressly agreed that they were paid Rs.1 lakh by the appellant, this was also not taken into account while issuing the impugned order. Sri.R.K.Muralidharan, thus prays that the impugned order be set aside. 7. In refutation of the afore submissions, Smt.Sheela Devi I, learned counsel appearing for respondents 1 to 3, submitted that the assertions of the appellant cannot obtain any legal worth because, going by the provisions of Section 12 of the Act, he certainly would have to be construed as being a contractor, who is obligated to deposit the amounts determined by the Tribunal, with a concomitant statutory liberty to recover the same from the second opposite party - the 4[th] respondent herein. She says that the impugned order does not, in any manner, prejudice the appellant, since the learned Tribunal has permitted him to recover the amounts from the second opposite party - 4[th] **MFA.No.11 OF 2020** **6** respondent and therefore, that he cannot now seek that the said order be set aside. 8. On the evidence and facts of this case, Smt.Sheela Devi I submits that the appellant cannot assail the order, because he chose not to enter the box or give evidence. She however, concedes that perhaps due to an inadvertent omission, the Tribunal has recorded in the order that the appellant had been cross-examined, while he was not. She asserts that, however, this does not vitiate the order since, going by the law and the facts involved, the learned Tribunal could have only allowed the claim put forward by her clients because the death of Rajesh is admitted and the fact that he was engaged by the 2[nd] opposite party to construct a truss not over the school of the appellant is also admitted. She says that, consequently, the causal link between the appellant and deceased Rajesh and his status as the principal employer becomes irrefutably established, particularly under the provisions of Section 12 of the Act. 9. I must upfront say that some of the submissions of Sri.R.K.Muralidharan, does not appeal to me fully. His submission that the appellant could not have been construed to be the **MFA.No.11 OF 2020** **7** principal employer of deceased Rajesh on the strength of the two judgments cited above, prima facie, does not impress me because the facts involved herein are different from the facts as noticed by their lordships in the afore two judgments. I say this because, in **Govindan Nambiar** (supra) **,** a full Bench of this Court found that the appellant therein had leased the property to another person and that such person had engaged the deceased. It is in such context that the learned Full Bench held that the deceased cannot have any direct relationship with the owner of the property, since he was not the person who engaged him for the work but that he had only leased out his property to another, who conducted the work for himself. Evidently, the learned Full Bench found that the intermediary was the person who had engaged the deceased and that the appellant did not have any connection with him in whatsoever manner at all. 10. Turning to **Mayinkutty C.** (surpa), a Division Bench of this Court, in paragraph No.6 thereof, held that the appellant was not the principal employer of the deceased since the latter had been engaged by a contractor employed by him for the purpose of a construction of a commercial building. The learned **MFA.No.11 OF 2020** **8** Division Bench held that until the building had been completed, the appellant could not be said to have been engaged in a trade or business with respect to the same and therefore, that Section 12 of the Act would not apply, since it makes limpid that only in the event of an employee meeting with an accident or died consequent thereto, in the course or for the purposes of a trade or business, can the rigour of the said Section apply **.** The learned Division Bench has held that until the building had been completed, it cannot be said that the appellant therein was conducting a trade or business and that he can, at the best, be only seen as a commercial consumer, thus drawing a distinction between a case where a business is yet to start and where a business is on-going. 11. However, in the case at hand, it is without doubt that the appellant admits that he is the Manager of the School and that the truss roof was being constructed for the purpose of maintaining the building of the school. I cannot, therefore, countenance the submissions of Sri.R.K.Muralidharan, that this work cannot be seem to be in course of or for the purposes of the trade or business of the appellant, merely because, under the **MFA.No.11 OF 2020** **9** Kerala Education Act and Rules (KER for Short), the construction of a truss work for the school building is not an essential work. I am afraid that this submission cannot appeal to me because, the truss roof was being constructed to maintain the school building, which is essential under the Kerala Education Act and the Rules thereof; and resultantly, the question whether the truss roof is an essential part of the building or otherwise from the touchstone of the KER would loose any relevance, particularly when it is without contest, that it was being erected for the maintenance of the building, wherein, the business of the school was being conducted. I therefore, cannot offer imprimatur to the contention of the appellant that Section 12 of the Act cannot apply in this case and the afore cited judgments would really have no application since the facts therein are not analogous to the facts involved herein. 12. That said, however, I find some force in the submissions of Sri.R.K.Muralidharan that the learned Tribunal appears to have issued the impugned order without proper appreciation since, as rightly pointed out by him, it records that the appellant had made certain admissions during his cross- **MFA.No.11 OF 2020** **10** examination, when the fact remains that he never took the box. I fail to understand how the Tribunal has recorded this and I can only therefore, find affirmation in the assertions of Sri.R.K.Muralidharan, that the learned Tribunal did not really go through the evidence on record properly. 13. That apart, as again rightly pointed out by Sri.R.K.Muralidharan, Ext.A1 legal notice, which has been marked from the side of respondents 1 to 3 herein, unequivocally admit that an amount of Rs.1 lakh had been obtained by them from the appellant. This has also not been taken into account by the learned Tribunal, while fixing the liability in the impugned order. 14. Of course, the order certainly permits the appellant to recover the amounts from the 4[th] respondent/second opposite party, but this would be a little conciliation to him, if eventually it is found that the amounts ordered by the Court are in excess. 15. In such circumstances, I am of the opinion that this Court will be justified in acceding to the request of Sri.R.K.Muralidharan, that his client be given an opportunity of leading evidence, since it is only in the absence of such that the **MFA.No.11 OF 2020** **11** impugned order had been issued, presuming that there is no dispute on any of the factual aspects. 16. Thus, even when I am of the view that the matter will require to be remanded to the learned Tribunal for reconsideration, I am equally certain that respondents 1 to 3 cannot be made to suffer indefinitely, awaiting a final decision. I am therefore, of the certain opinion that out of the amounts deposited by the appellant, substantial portion must be allowed to be withdrawn by respondents 1 to 3, so that they will be well protected by the time when a final decision is taken by the learned Tribunal. 17. On discerning my mind as afore, Sri.R.K.Muralidharan, learned counsel for the appellant, submits that this Court may permit respondents 1 to 3 to withdraw Rs. 4 Lakh out of the amounts already deposited, particularly because they have already received Rs.1 lakh as admitted by them in Ext.A1. I am persuaded to accept this suggestion, since the respondents 1 to 3 will effectively obtain Rs.5 lakh immediately, against Rs.8 Lakh now ordered by the Tribunal. 18. In summation, I allow this appeal in part and set aside **MFA.No.11 OF 2020** **12** the order of the learned Tribunal, so as to enable the appellant to offer evidence and for the respondents to adduce additional evidence, if they are so interested; however, on condition that the said respondents 1 to 3 will be allowed to forthwith withdraw an amount of Rs.4 lakh from out of the amounts already deposited by the appellant. 19. The learned Tribunal shall allow the withdrawal of afore amount by respondents 1 to 3 and proceed to dispose of the claim afresh, taking note of the evidence already on record and the additional evidence to be led by the parties, thus leading to a final order thereon, as expeditiously as is possible but not later than 8 months from the date of receipt of a copy of this judgment. Needless to say, if the learned Tribunal still enters into a finding that Section 12 of the Act is applicable, then the liberty of recovering the amounts from the second opposite party/4[th] respondent herein, will be made available to the appellant, as has been done in the impugned order also. In the scenario of the peculiar facts involved, I deem it appropriate not to make any order as to costs and resultantly, direct the parties to suffer their respective costs. The Registry is **MFA.No.11 OF 2020** **13** directed to re-transmit the lower court records at the earliest. **Sd/-** **DEVAN RAMACHANDRAN JUDGE** rp