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Separate Framing of Issues Not Fatal If Appellate Court Already Addressed Them: SC

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Case title: Mrugendra Indravadan Mehta and Ors v. Ahmedabad Municipal Corporation.

Case no: Civil Appeal Nos. 16956-16957 OF 2017

Dated on: May 10th, 2024

Quorum: Justice A.S. Bopanna and Justice Sanjay Kumar.

Facts of the case:

The two appeals arise out of the common judgment dated 18.06.2013 passed by a Division Bench of the High Court of Gujarat at Ahmedabad. The Division Bench allowed the first appeal filed by the Ahmedabad Municipal Corporation and dismissed the cross-objection filed by the respondents. Aggrieved by the same, the said respondents filed the present appeals. The suits were filed against the Corporation seeking compensation of ₹1,63,97,673/- with interest thereon @ 18% p.a. or, in the alternative, allotment of land, i.e., an extent of 974 sq. mts., in any Town Planning Scheme in the western zone of Ahmedabad. The Trial Court, decreed the suit by accepting the alternative prayer to allot an extent of 974 sq. mts. In any Town Planning Scheme in the western zone but rejected the compensation claim of ₹1,63,97,673/- with interest thereon and the plaintiffs were directed to repay the amount of compensation received by them @ ₹25/- per sq. mt. The Corporation preferred the subject first appeal before the High Court while the plaintiffs filed their cross-objection therein. The High Court held that it was not open to the Plaintiffs to claim any damages by accepting the smaller plot and the compensation for the shortfall of 974 sq.mts. without protest.

Issues:

Can a plot owner who surrendered his land pursuant to a Town Planning Scheme, be allotted any land after reconstitution of the plots?

Legal provisions:

Various provisions of Town Planning Schemes Gujarat Town Planning and Urban Development Rules, 1979.

Contentions of the appellant:

The plaintiff/ Appellant father was the owner of original Plot Nos. 144, 150/P and 151/P in Survey Nos., admeasuring 19823 sq. yds./16575 sq. mts. The Corporation prepared Town Planning Scheme No.6, Paldi, where the plaintiffs’ father was required to contribute 21.40% of his lands, i.e., 4247 sq. yds./3552 q. mts., to the Corporation for public purposes. For the remaining extent, the Corporation allotted two separate plots, viz., Plot No. 478, measuring 11686 sq. yds and Plot No. 463, measuring 3890 sq. yds. The vacant possession of Plot No. 478 was delivered to the plaintiffs’ father but the Corporation failed to deliver possession of Plot No. 463 as it was occupied by slum dwellers. The Corporation then prepared a second varied scheme whereunder, Plot No. 463 was taken for the purpose of slum upgradation and the plaintiffs were offered Plot No. 187, measuring 2724 sq. yds thereby reducing the land allotment by 974 sq. mts. The compensation awarded to them for the shortfall of 974 sq. mts. was meagre. The plaintiffs were constrained to file for compensation for the damages as they had suffered huge monetary losses as they could not enjoy the property since 1963 and thus prayed for compensation of ₹1,63,97,673/-

Contentions of the respondent:

The plaintiffs were paid compensation @ ₹25/- per sq. mt. for shortfall of land under the scheme. The plaintiffs accepted possession of Final Plot No. 187 and the compensation, without protest and without challenging the same. The grievance was required to be preferred under Section 54 of the Act of 1976. The plaintiffs could not pray for compensation on the basis of the original Town Planning Scheme for the reason that upon variation of the scheme, the original scheme ceased, and the varied scheme came into existence.

Courts analysis and judgement:

The High Court has set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh. When allotment to plaintiff was modified by the second variation of Town Planning Scheme, where the plaintiffs were allotted Plot No. 187 which was of a lesser area but was silently accepted by them and they neither chose to seek implementation of the original scheme, where under they were allotted a larger plot, or challenge the varied 36 scheme, whereby they were given a smaller plot. Having accepted the plot and upon variation of the scheme, the plaintiffs cannot seek to reopen the negligence and delay, on the part of the Corporation. Upon the preparation or variation of a Town Planning Scheme, the rights in the earlier plots of land stands extinguished and rights accrued, if any, becomes extinct then it cannot be the basis for a later cause of action. The plaintiffs did not choose to adduce any evidence in support of their claim for the quantified damages of 1,63,97,673/-. Though it has been contended that the plaintiffs never actually received the compensation for the shortfall of 974 sq. mts. @ 25/- per sq. yd., but pursuant to the judgment of the Trial Court, the plaintiffs deposited the sum of 24,350/-, being the compensation for 974 sq. mts. @ ₹ ₹25/- per sq. mt., as directed by the Trial Court. If they did not receive such compensation, they ought not to have abided by the direction of the Trial Court and deposited that amount. This voluntary act precludes them from contending that compensation was never paid to them and that they had deposited the amount as it was only a paltry sum. The contention of the plaintiffs that the Act of 1976 does not contemplate a second reduction in the reconstituted plot area cannot be accepted as Section 45 of the Act of 1976 deals with reconstitution of plots. In Prakash Amichand Shah and Ahmedabad Green Belt Khedut Mandal, it was held that a plot owner who has surrendered his original land for the purposes of the Town Planning, is not assured of allotment of a reconstituted plot in lieu thereof then in such case, he is entitled only to compensation. Section 71 postulates that in case of variation of the Town Planning Scheme is to be made then the same needs to be published and sanctioned in accordance with the provisions of the Act of 1976, which means that the entire exercise would be undertaken afresh, therefore, further reduction of a plot which is notified in the original Town Planning Scheme is implicit. The plaintiffs, were aware of the fact that Plot No. 187 allotted to them under the second varied Town Planning Scheme No. 6, Paldi, was of lesser area, and was accepted by them without any protest or raising right to a larger area and their conduct of depositing ₹24,350/- thereby implying receipt of the compensation amount foreclosed their right, to either challenge the allotment of a plot of lesser area or to seek more compensation. In this regard, it is noted that Section 54 provides an appellate remedy to the person aggrieved by any decision of the Town Planning Officer. The quantification of compensation was amenable to appellate review but the plaintiffs did not avail the said remedy. The plaintiffs’ main prayer was for quantified compensation, in the alternative, to allot land in the western zone of Ahmedabad. The Plaintiff did not adduce evidence values of the two final plots. The monetary value of two plots depend upon situation, development, proximity and access to the main road or highway, etc., and the same cannot be concluded without adequate proof. The High Court was fully justified in allowing the first appeal filed by the Corporation. There is no need for any interference. Therefore, the appeals are accordingly dismissed.  

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Supreme Court upholds compulsory retirement intra vires CRPF Act.

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Case title:  Union of India v. Santosh Kumar Tiwar

Case no: Civil Appeal No.6135 of 2024

Dated on:  8th May 2024

Quorum: Justice D.Y.Chandrachud, J B Pardiwala and Manoj Mishra

Facts of the case:

This appeal is against the judgment and order of the High Court of Orissa at Cuttack, preferred by the appellants against the judgment of the Single Judge has been dismissed and the order of the learned Single Judge has been affirmed. The respondent was a Head Constable in Central Reserve Police Force. He was charge-sheeted for assault and abusing his fellow colleague. In the enquiry proceedings as the charges were proved, the respondent was compulsorily retired from service vide order dated 16.02.2006. The respondent filed a departmental appeal, which was dismissed by the Deputy Inspector General (P), CRPF on 28.07.2006. The respondent filed a Writ Petition before a Single Judge Bench who vide order dated 14.01.2020 allowed the writ petition, on the ground that the punishment of compulsory retirement was not punishment specified in Section 11 (1) of the CRPF Act, 1949. Aggrieved with the order of the learned Single Judge, the appellants preferred writ appeal. The Division Bench of the High Court found no merit in the writ appeal and dismissed the same giving rise to the present appeal.

Issue: 

1. Whether the punishment of compulsory retirement can be imposed by relying upon the provisions of Rule 27 of the CRPF Rules? 
2. Whether Rule 27 of the CRPF Rules provides for punishments other than those specified in Section 11 of the CRPF Act? 
3. Whether the punishment of compulsory retirement suffers from any procedural infirmity?

Legal provisions: 

Rule 27 of the CRPF Rules 
Section 11 of the CRPF Act.

Contentions of the Appellant:

The only ground pressed by the original petitioner was that the punishment of compulsory retirement is not imposable under Section 11 of the CRPF Act is not correct. The High Court failed to consider that Section 116 of the CRPF Act has expressly made rules where the Commandant or any other authority or officer may award in lieu of or in addition to suspension or dismissal any one or more punishments whom he considers guilty of disobedience, neglect of duty, or other misconduct can award punishments such as (a) reduction in rank; (b) fine not exceeding one month’s pay and allowances; (c) confinement (e) removal from any office. The punishment for compulsory retirement is specifically provided as one of the punishments imposable on a non-gazetted officer, like the respondent. The impugned order of the High Court is in ignorance of the relevant provisions of the Act as well as the rules. Once an enquiry is held and charge of gross indiscipline is found proved, and further, the Respondent being a member of a disciplined force, the punishment awarded, was not liable to be interfered with by the High Court.

Contentions of the Respondent:

Punishment of compulsory retirement as specified in Rule 27 of the CRPF Rules is ultra vires the provisions of Section 11 of the CRPF Act, and no punishment beyond what is specified therein can be imposed. Punishment which is not contemplated under the statute cannot be introduced by way of a rule. Dismissal and compulsory retirement are two different kinds of punishment and cannot be treated as interchangeable. In the absence delegation of power to frame rules, introducing the punishment of compulsory retirement, is ultra vires the CRPF Act; The charge levelled on the original petitioner was not established, as there were no eyewitness to prove the alleged claim. The Disciplinary Authority and the Appellate Authority acted in a mechanical manner.  

Courts judgement and analysis:

The CRPF Act is “an Act to provide for the constitution and regulation of an armed Central Reserve Police Force (for short the Force)”. The superintendence and control over, vests in the Central Government. Section 9 enumerates “more heinous offences” and Section 10 “less heinous offences”, For “more heinous offences”, the punishment is transportation for life or for a term of not less than seven years or with imprisonment which may extend to 14 years or with fine. The punishment for “less heinous offences” is imprisonment for a term which may extend to one year, or with fine. The Commandant or any other authority subject to any rules under the Act, award in addition to, suspension or dismissal anyone or more of the punishments specified therein guilty of disobedience, neglect of duty, other misconduct. Section 18 confers rule-making power on the Central Government. An overview of the CRPF Act, makes it clear that the Central Government has overall superintendence and control over the Force. The CRPF Rules provide for imposition of the punishment of compulsory retirement though the CRPF Act wherein the Act itself does not provide in specific terms. In Subash Chandra Yadav it was observed that “Before a rule can have the effect of a statutory provision, two conditions are to be complied (1) it must conform to the provisions of the statute (2) it must also come within the scope and purview of the rule-making power of the authority framing the rule” Section 11 does not use common expressions such as “dismissal from service” or “removal from service” while describing the punishments, though, Rule 27 uses those expressions. The High Court opined that only punishments which can be awarded under the section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. This interpretation is not correct, cause as per the section punishments may be awarded in lieu of, or in addition to, suspension or dismissal. The words “in lieu of, or in addition to, suspension or dismissal”, shows that the authorities can award punishment of dismissal or suspension who is found guilty in addition to, punishment mentioned in clauses (a) to (e) may also be awarded. To determine whether the punishment of compulsory retirement is ultra vires the CRPF Act, it would be apposite to first examine the scope of rule-making power conferred on the Central Government by the statute. In order to decide whether Rule 27 of the CRPF Rules, which prescribes additional punishment of compulsory retirement, is intra vires or ultra vires of the CRPF Act, the following facts needs to be considered (a) whether the intention of the legislature was allow the Central Government to prescribe any other minor punishment than what has already been prescribed (b) whether it conflicts with provisions of the CRPF Act. While enacting the CRPF Act, the intention of legislature was not to declare that only minor punishments could be imposed as it was left open for the Central Government to frame rules to carry out the purposes of the Act and the punishments. The concept of “control”, as per P. Ramantha Aiyer’s Advanced Law Lexicon implies that the controlling authority must be in a position to dominate the affairs of its subordinate. The word ‘control’ is very wide and includes disciplinary control. Hence, if the CRPF Act envisages vesting of control over the Force in the Central Government then the various punishments imposable under Section 11 are subject to the rules made under the Act. The Central Government can ensure full and effective control over the Force including the punishment of compulsory retirement. It is therefore held that punishment of compulsory retirement is intra vires the CRPF Act and is an imposable punishment. There is no such perversity in the enquiry report. There is no error in the conduct of the enquiry. There is no need to interfere with the punishment and the appeal is allowed.

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Medial Board to consider physical emotional well-being of pregnant person- SC

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Case title: A (mother of X) v. State of Maharashtra and Anr

Case no: Civil Appeal No. 5194 of 2024

Dated on: April 29th, 2024

Quorum: Dr Dhananjaya Y Chandrachud, J B Pardiwala, Manoj Misra.

Facts of the case:

This appeal arises from the judgement of a division bench of the High court judicature at Mumbai dated 4th April 2024. It basically denied the minor from terminating her pregnancy. ‘X’ is a minor around 14 years old and has been alleged of a sexual assault in September 2023. ‘X’ revealed this on 20thMarch 2024 by then she was 25 weeks into her pregnancy. It was said that ‘X’ always had irregular periods and could not have assessed her pregnancy earlier. ‘X’ was taken to a hospital on 21 March 2024 for medical examination and then transferred to the JJ Group of Hospitals, Mumbai for termination of her pregnancy. On 28 March 2024 the Medical Board constituted under the Medical Termination of Pregnancy Act 1971 opined that ‘X’ was physically and mentally fit for termination of her pregnancy subject to the permission of the High Court. The Appellant moved to the High Court of Judicature at Bombay under Article 226 of the Constitution seeking the termination of pregnancy of her daughter. On 3rd April 2024, the Medical Board issued a ‘clarificatory’ opinion, without re-examining ‘X’. The report denied the termination of pregnancy on the ground that the gestational age of the foetus was twenty-seven to twenty-eight weeks and that there were no congenital abnormalities in the foetus. By the impugned judgment the High Court dismissed the writ petition on the ground that the pregnancy exceeded the statutory period of twenty-four weeks. In the present appeal, it was observed that the medical report does not contain evaluation of the physical and mental status of the minor, having regard to the background leading up to the pregnancy. The Medical Board was directed to apprise as to whether carrying the pregnancy to the full term would impact the physical and mental well-being of the minor who is barely fourteen years old. The minor was examined by a team of six doctors who after examining ‘X’, opined that the gestational age of the foetus was 29.6 weeks and continuation of pregnancy will negatively impact the physical and mental well-being of ‘X’.

Issues:

Whether carrying of the pregnancy to the full term would impact upon the physical and mental well-being of the minor who is barely 14 years?

Legal provisions:

Section 376 of IPC- Punishment of Rape. 
Sections 4 of the POCSO Act- This section deals with penetrative sexual assault on a child. 
Section 8 of the POCSO Act- Punishment for sexual assault. 
Section 12 of the POCSO Act- Punishment for sexual harassment.

Contentions of the appellant:

The appellant had moved High Court initially to permit them to terminate the pregnancy. Upon denial by the Hight Court, an appeal was preferred under 136 of the Constitution. The medical team reported that while initially the parents were agreeable to the stoppage of the foetal heart on 24 April 2024, on 25 April 2024 the appellant stated that she desires that the pregnancy be taken to term and that she would thereafter give the child in adoption.

Courts analysis and Judgement:

In X v. State (NCT of Delhi), it was recognized that the fear of prosecution among registered medical practitioners is a barrier for pregnant persons to access safe and legal abortions. The purpose of the opinion of the RMP bears the legislative intent of the MTP Act which is to protect the health of a pregnant person and facilitate safe, hygienic, and legal abortion. The right to abortion is to protect right of dignity, autonomy and reproductive choice and this right is guaranteed under Article 21 of the Constitution.   The court in XYZ v. State of Gujarat,11 held that the medical board or the High Court cannot refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription. The powers vested under the Constitution in the High Court and this Court allow them to enforce fundamental rights guaranteed under Part III of the Constitution. When a person approaches the court for permission to terminate a pregnancy, the court apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In Suchita Srivastava v. Chandigarh Admn.14, a three-judge Bench of this Court has held that the right to make reproductive choices is a facet of Article 21 of the Constitution. The right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution, the court must regard the view of the pregnant person as an important factor while deciding the termination of the pregnancy. In the present case view of ‘X’ and her parents to take the pregnancy to term are in unison.  In the facts and circumstances the following directions are issued: (i) All the expenses in regard to the hospitalization of the minor in respect of her delivery to be borne by the Hospital (ii) In the event that the minor and her parents desire to give the child in adoption, the State Government to take all necessary steps to facilitate this exercise.  The Court concludes as follows: (i) The MTP Act protects the RMP and the medical boards when an opinion is formed in good faith regarding termination of pregnancy; (ii) The medical board opinion must not be restricted to the criteria under Section 3(2-B) of the MTP Act but should consider the physical and emotional well-being of the pregnant person (iii) When issuing a clarificatory opinion the medical board to support with reasons for change in opinion and circumstances; and (iv)The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a difference of opinion between the pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration to enable the court to arrive at a conclusion. Accordingly, the appeal is disposed of. 

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Decision to fill vacancies from the additional list, is state’s prerogative- Delhi High Court.

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Case title: Dr. Shashi Bhushan v. University of Delhi and Anr.

Case no: W.P.(C) 4949/2024 & CM APPL. 20278/2024

Dated on: 05th April 2024

Quorum: Hon’ble Mr. Justice Tushar Rao Gedela.

Facts of the case:

A Mandamus writ petition under Article 226, of the Indian constitution,1950 has been filed against the Respondents by the Petitioner to appoint him as a Assistant Professor in the Department of Geography at the Respondent’s College. Mr. Chimni, appearing for the petitioner submits that the petitioner had participated in the recruitment process for the post of Assistant Professor of the Department of Geography, Kalindi College, University of Delhi. He says that the petitioner was the first candidate in the waitlist. There was a candidate named Ms Usha Rani who was at Sl. No.1 in the list of selected candidates was offered the appointment and had consequently joined the College at the Geography Department as an Assistant Professor. But, she had resigned from the Respondent’s College and joined another College with the same post. He says that the post of the assistant professor allotted for the scheduled caste was left vacant after the resignation of Ms. Usha Rani. He submits that as the petitioner is the first candidate in the waiting list he had the right to be offered with the appointment to the said vacant post. As, that was not done the following writ petition was filed.

Issues:

Whether a Candidate placed in waiting list be offered appointment upon resignation of the candidate who joined the post and later resigned?

Legal provisions:

Article 226 of the Indian Constitution- Power of High Courts to issue certain writs. 


Contentions of the appellant:

Mr. Chimni the counsel appearing for the petitioner says that the Petitioner had participated in the recruitment process for the Assistant Professor of the Department of Geography, Kalinidi College, University of Delhi. After the selection the petitioner was the first in the candidate list, he submits that a candidate named Ms. Usha Rani had also participated for the same and she was selected and started working in the said department. But, this said candidate resigned from the Respondent’s College subsequently and had gotten a new job with the same post. He says that the post of the Assistant Professor allotted for the scheduled caste was vacant after the resignation of the candidate. He submits that as the petitioner was the first candidate in the waiting list had a right to be offered with the appointment with the said post. Mr. Chimni says that the respondent is under the obligation to reserve the waitlisted panels on the basis of the selection, particularly when the incumbent had just resigned leaving the post vacant. The respondent had addressed that he would fill up the vacant position by selecting from the waitlist. Mr. Chimni says that the same has been violated.  

Contentions of the respondent:

Mr. Mathur states that the university had clearly stated that an offer to the Assistant Professor in the waitlisted candidate category created on the resignation of the candidate who had joined to the said post, and later resigned, it would again have to be advertised for such vacant post following the processes and procedures that are envisioned under the directives of the university. In Sudesh Kumar Goyal vs. State of Haryana and Others reported in (2023) 10 SCC 54, the Supreme Court held that a person cannot seek a right against a vacancy caused due to the resignation of the selected candidate. If a selected candidate joins and the resigns, it creates a fresh vacancy that must be filled through a fresh advertisement and selection process. With this case as precedent in the present case also the petitioner seeks offer from the vacancy on the resignation of the previously selected candidate. Mr. Mathur says that the petitioner has no cause of action.  

Courts analysis and judgement:

According to the Selection committee under clause 7 (4-a) of Ordinance XVIII of the university offers a appointment to the post of Assistant Professor to the waitlisted candidate when there is a vacancy that has been created by the resignation of the candidate who joined the post and later resigned. In such cases, it requires to issue a fresh advertisement following the processes and due procedures of the University. The candidates can be given appointment to the said post if the selected candidate did not join in the given timeframe. Thus, the said post which has fallen vacant due to any reasons cannot be filled from the position in the waitlist. If the Resignation of selected candidate. Death/VRS/Resignation of an employee, Post has fallen vacant due to the incumbent appointment at any other higher position/principal etc. In Subha B. Nair v. State of Kerala A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in the absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. Further, Mandamus cannot be issued to direct the Government or the State to fill up certain or all vacancies. The discretion to fill or not to fill vacancies lies with the Government. When a selected candidate in the final selection list has only a right of consideration, then the candidates who are in wait list would not even have that right, which is subject to rules/notification issued. The petitioner could not establish that he has derived the right from any rule/statute or an ordinance. Hence, the position that arises from all the above decisions is that the duty to fill up vacancies from waiting list can arise only on the basis of a mandatory rule. If no such mandate exists, the decision to fill all the vacancies from the Additional List, is left to the State. However, it needs to be added that State cannot act arbitrarily, and its action can be judicially reviewed. It is clear that the petitioner has no ground to maintain the writ petition. Consequently, the writ petition is dismissed. 


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delhi high court

Delhi High Court upholds EC Commissioner order for compensation to parents of deceased employee by upholding that the deceased person was an “Employee”

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Case title: M/S Madras Trading Co v. Ramjeet @ Ramjeet and Anr

Case no: FAO 119/2017 & CM APPL. 9580/2017, CM APPL. 28069/2018

Dated on: February 13th, 2024

Quorum: Hon’ble Mr. Justice Dharmesh Sharma

Facts of the case:

The appellant herein is a proprietorship concern run by Mr. Sukhpreet Singh, and it is engaged in a small business of sale of air conditioners and spare parts. The respondents were the claimants before the Employee Commissioner and are the legal heirs/parents of the deceased. The claimants filed Statement of Claims before the Commissioner on 27.07.2015, stating that that their deceased son Tata, was employed with the appellant as an AC Mechanic at a monthly wage of Rs. 15,000/-. On 30.04.2014, Sh. Tata was sent by the appellant to do AC repair work wherein the AC compressor burst resulting in fatal injuries and his death at the age of 25 years. An FIR was registered on 01.05.2014 at P.S. Kirti Nagar, on statement of coworker Sh. Sanjay Kumar who along with the deceased had gone to carry out work when the accident occurred. He stated that both of them were employed with the appellant firm and are entitled for compensation of Rs. 20,00,000/- along with penalty of 50% and interest @12% per annum, payable from the date of the incident till realization. The appellant on 09.12.2015 replied by denying the “employer-employee‟ relation and objected for non-enclosure of any documents/proofs to prove such employer- employee relationship. The learned Commissioner framed the following issues “(i) whether the employee – employer relationship exists between the parties? – (ii) Whether accident resulting into death of the deceased is caused out of and during the course of employment and if so, to what amount of death compensation, the dependents of the deceased are entitled to? (iii) Relief, if any? The learned Commissioner decided in favor of the claimants/respondents by holding that the claimant’s evidence was reliable and sufficient in proving the events. However, the respondent firm (appellant herein), failed to prove that there exists no employer- employee relationship. The learned Commissioner held that the claimants are entitled to compensation of Rs. 8,67,640/- along with simple interest @12% per annum w.e.f. 29.07.2015. Hence, this appeal.

Contentions of the appellant:

The learned Commissioner finding is perverse. The “employer-employee‟ relation between the deceased and the appellant firm, was decided solely on the FIR by completely ignoring the contradictions in the testimony of the claimants during cross-examination. An FIR is not a piece of substantive evidence as it requires corroboration through documentary, circumstantial or oral evidence. It is contended that apart from the “Control Test‟, “Integration Test‟ also needs to be considered such as the power to select and dismiss, to pay remuneration, deduct insurance contributions and the “mutual obligations‟ between the employer and the employee as well. The only evidence put forth by the respondents/claimants is a photocopy of the visiting card of the appellant. The testimony of respondent No.1 as well as of Sanjay Kumar was inconsistent. The appellant firm is not engaged in the business of AC repair but is a small proprietorship concern engaged in the sale of Air Conditioners and that they have not employed any persons.  

Contentions of the respondent:

The order passed by the learned Commissioner is well reasoned and has been passed after a thorough consideration of the pleadings of the parties and the materials placed on the record. The grounds taken by the appellant in the present appeal are misconceived and baseless. There is no substantial questions of law involved.

Issues:

Whether the Respondents are entitled to claim compensation under the EC Act?  

Legal provisions:

Compensation Claim under EC Act- Workers can file claims for compensation directly with the Commissioner or through a lawyer.  

Courts analysis and Judgement:

An appeal under Section 30 of the EC Act lies to the High Court from the following orders of a Commissioner ie (a) an order awarding as compensation; (aa) an order awarding interest or penalty (b) an order refusing to allow redemption of a half- monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased employee, or disallowing any claim of a person alleging himself to be such dependents; (d) an order allowing or disallowing any claim for the amount of an indemnity under Section 12 (2). It is further provided by way of a proviso that no appeal lies against any order unless a “substantial question of law‟ is involved in the appeal. In the case of North East Karnataka Road Transport Corporation vs. Sujatha, the Supreme Court considered the scope and ambit of Section 30 of the EC Act as to what would constitute “substantial question of law‟, the question such as “whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident, etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act” The aforementioned questions are essentially the questions of fact and, therefore, to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.” The learned Commissioner has given a categorical finding that the deceased workman suffered fatal injuries during the course of his employment with the appellant. The reliance by the Commissioner on the contents of the FIR and statement of co-worker cannot be faulted. The proceedings under the EC Act are summary in nature and hence strict adherence to provisions the Indian Evidence Act, 1872 cannot be applied. There are grounds by which it can be presumed that the facts were truthfully revealed regarding the circumstances which resulted in the fatal accident and was correctly incorporated by the Investigating Officer. The claimants are from poor background who are illiterate and ignorant. The Visiting card in possession is sufficient to show the connection of the appellant as an employer with the Respondent’s deceased son. Once the Claimants had laid the basic foundation to the claim, the onus then shifted upon the appellant to disprove the fact that there existed no employer-employee relationship between the parties. The appellant could have even summoned and examined the co-worker Sanjay Kumar to disprove the relationship of employer and employee. The plea of respondent No.1 acknowledging that he did not know the proprietor of the appellant can be taken considering the background of the parents. There is no apparent reason for the Investigating Officer to have fabricated the FIR or for the co-worker Sanjay Kumar to have given a false statement soon after the accident. In view of the foregoing discussion, the impugned order does not suffer from any patent illegality, perversity or incorrect approach adopted in law. The present appeal is dismissed with exemplary costs of Rs. 25,000/- which be paid to the respondents No. 1 and 2 in equal share within one month from today, failing which they shall be entitled to claim the same with interest @ 9% per annum from the date of this order till realization. The pending applications also stand disposed of accordingly.  

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Judgement reviewed by- Parvathy P.V.

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