T. Manoj Thulasi Nilayam v. Commissioner for Workmen's Compensation & Deputy Labour Commissioner, Kollam and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 20TH DAY OF DECEMBER 2017/29TH AGRAHAYANA, 1939** **WP(C).No. 16339 of 2012 (N)** **----------------------------** **PETITIONER(S): -------------** **T.MANOJ THULASI NILAYAM, MUKKAVALA, KAYAMKULAM** **BY ADVS.SMT.A.K.PREETHA SRI.C.ANIL KUMAR** **RESPONDENT(S):** - **--------------** **1. COMMISSIONER FOR WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, OFFICE OF DEPUTY LABOUR COMMISSIONER, KOLLAM-691001** **2. C.K.THANKAPPAN,[DIED]** - **CHARUPARAMBIL HOUSE, KOTTANCAVU, MAVELIKKARA-690101.** **3. K.THANKAMMA [DIED] W/O.THANKAPPAN, CHARUPARAMBIL HOUSE, KOTTANCAVU, MAVELIKKARA-690101** **4. B.G. ENGINEERING ENTERPRISES, ERUVA WEST P.O., KAYAMKULAM, REPRESENTED BY ITS PROPRIETOR GANGADHARAN PILLAI-690502.** **5. K.VASUDEVAN, KARILIL KUTIYIL, EREZHA SOUTH, CHETTIKULANGARA, MAVELIKKARA-690101.** - **Addl. 6. PRASAD T.** - **S/O.THANKAPPAN, CHARIVUPARAMBIL PUTHEN VEEDU, KOTTARKAVU P.O., NEAR POWER HOUSE, MAVELIKKARA.** - **Addl. 7. ANANDAVALLY T.** - **D/O.THANKAPPAN, MANATH VILA VADAKKETHIL, ERAZHA SOUTH, CHETTIKULANGARA P.O., MAVELIKKARA.** - **Addl. 8. TULASI T. D/O.THANKAPPAN, REVATHY VILASOM, KANDALLOR VADAKKU, PULLUKULANGARA, KARTHIKAPALLY TALUK, KAYAMKULAM.** - **Addl. 9. SHOBANA T. D/O.THANKAPPAN, A.K.NIVAS, KANDALLOR VADAKKU, PULLUKULNAGARA, KARTHIKAPALLY TALUK, KAYAMKULAM.** **CONTD..2..** **..2..** **WP(C).No. 16339 of 2012 (N)** **(* THE LEGAL HEIRS OF DECEASED 2ND AND 3RD RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 6 TO 9 AS PER THE ORDER DATED 03.11.2017 IN I.A No.17081/2017)** **R4 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL R5 BY ADV. SRI.NIRMAL V NAIR RADDL 6-R9 BY ADV. SMT.HYMA.S RADDL 6-R9 BY ADV. SRI.M.K.SHAJI RADDL 6-R9 BY ADV. SMT.LISHA.M.G. R BY GOVERNMENT PLEADER SMT. PRIYA SHANAVAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16339 of 2012 (N)** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER AS W.C.C. 44/2005 ON THE FILES OF THE 1ST RESPONDENT. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED IN W.C.C. 44/2005 EXT.P3 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT W.C.C.44/2005 DATED 24.03.2012** **RESPONDENTS EXHIBITS: NIL** **// TRUE COPY //** **P.A TO JUDGE** **SB** ## **A.MUHAMED MUSTAQUE, J.** ## **=====================** ## **W.P.(C) No.16339 of 2012 - N ============================ Dated this the 20[th] day of December, 2017** ## **JUDGMENT** The petitioner in this writ petition challenges an award passed by the Workmen's Compensation Commission, Kollam, the 1[st] respondent herein in W.C.C. No.44 of 2005. The petitioner is running a grocery shop. The shop is having wooden shutters. The petitioner wanted to replace it with iron rolling shutters. For that the B.G. purpose, petitioner engaged Engineering Enterprises, the 4[th] respondent herein. 2. An accident occurred in the site of the petitioner, while replacing the wooden shutters. On account of that accident, an employee, namely one Pradeep Kumar died, while engaging in welding work, due to electrocution. His death was on 27.08.1999. The legal heirs of the deceased Pradeep Kumar filed an application for compensation, before the Commissioner, on 11.12.2002 as evidenced by Ext.P1. The petitioner had filed a written statement at Ext.P2, specifically stating that they had 2 W.P.(C) No.16339/2012 entrusted the work with a contractor, namely, B.G. Engineering Enterprises, the 4[th] respondent herein. The applicant before the Commissioner neither impleaded B.G Engineering Enterprises nor the Commission cared to implead the 4[th] respondent. 3. The Commissioner proceeded with the matter and ordered compensation and to recover the same from the petitioner. The Commissioner was of the view that the petitioner being a Principal Employer is liable to pay the compensation. The question in this writ petition arises in the context of liability being imposed on a Principal Employer. 4. The 4[th] respondent, B.G Engineering Enterprises was, for first time arrayed in the party array through this writ petition. The 4[th] respondent as well as the legal heirs of the claimants before the Commissioner, objected the maintainability of this writ petition. Therefore, this question has to be answered at first. 5. Section 30 of the Workmen's Compensation Act, 1923 (for brevity 'the Act') provides remedy by way of appeal as 3 W.P.(C) No.16339/2012 against the order passed by the Commissioner. For that the entire compensation amount has to be deposited before the Commissioner. It is, according to the contesting respondent, in order to circumvent to pre-deposit the amount, the petitioner filed this writ petition. 6. If there is any efficacious alternate remedy available to the parties, this Court is reluctant to interfere with the matter, invoking its power under Article 226 of the Constitution of India. There is a no bar in entertaining a writ petition, challenging an order passed, against which an appeal is maintainable. 7. The power of judicial review would have to be exercised to set aside the decision making process and it is not directed against the decision. Therefore, this Court can examine a limited question as to whether, proceedings are vitiated on account of non-compliance of the procedural requirement or any illegality caused in the procedure, leading to an erroneous decision. 4 W.P.(C) No.16339/2012 8. I am of the view that the writ petition is maintainable, if the petitioner is able to point out the proceedings are vitiated, on account of the procedural lapses leading to the decision. 9. As I have already adverted the issue arising in this writ petition, in the context of the liability being imposed on the petitioner; the Principal Employer. It is appropriate to refer to Section 12 in this back ground. Section 12 imposes a liability on the Principal Employer. The petitioner has a case that the petitioner is not a Principal Employer. According to the petitioner, if the petitioner engaged the contractor as a part of trade or business, then only he became a Principal Employer. In fact, that question definitely arise, based on the facts, but the same cannot be considered, for the reason already adverted. It is beyond the jurisdiction of this Court to consider such a decision. However, the question is whether without impleading a contractor, whom the petitioner entrusted the work, the 5 W.P.(C) No.16339/2012 Commissioner could have proceeded or not is an issue having bearing in the outcome of proceeding. It is the definite finding of the Commissioner that, the petitioner is a Principal Employer, that means the Commissioner is of the view that, the contractor also involved in the matter. The finding does not disclose that the petitioner is a direct employer. The finding only shows that the petitioner is a Principal Employer, that there is engagement of contractor. In such situation, the Commissioner could not have passed an award without making contractor in party array. It is so clear from Section 12(2). Section 12(2) also provides for indemnification by the contractor, if the Principal Employer is liable to pay compensation and it also states that all questions relating to such indemnification shall be settled by the Commissioner. If that be so, there is serious lapse in the proceedings. 10. In such circumstance, this Court is of the opinion that the impugned order has to be set aside for that extent. The 6 W.P.(C) No.16339/2012 4[th] respondent; the contractor is already in the party array, he shall be deemed to have been impleaded in the proceedings. The impugned order is set aside. The parties shall appear before the Commissioner on 24.01.2018 at 11.00 am. In view of the fact that the Workmen's Commissioner has re- Compensation designated as Employees Compensation Commissioner (Industrial Tribunal, Alappuzha). The re-designated authority shall dispose of the matter, within a further period of three months on appearance. 11. The learned Counsel for the 4[th] respondent relied on a Full Bench decision of this Court in **National Insurance Company Ltd.** v. **Chandu and others [1986 KLT 1329]** . In that case, it was held by the Full Bench that the Principal Employer would be liable for any accident occurred in connection with the removal of shutter connected with the business place. This Court is of the view that, that dictum have no application in this matter. The question is whether without impleading the alleged 7 W.P.(C) No.16339/2012 contractor, the Commissioner could have proceeded with the case or not. That aspect has to be considered in the light of Section 12(2) of the Act. This Court in fact had not gone into the merits of the dispute, but, had only considered the procedural irregularities involved in the matter while passing the award. The writ petition would stand allowed. No order as to costs. **Sd/A.MUHAMED MUSTAQUE JUDGE** SB/22/12/2017 // true copy // P.A to Judge