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Try out our Premium Member services -- Free for one month.\n\nMadhya Pradesh High Court\nM/S Jain Brothers vs Anju Adiwasi on 14 October, 2022Author: Vivek Agarwal\n                                                                 1\n                                               IN THE HIGH COURT OF MADHYA PRADESH\n                                                            AT JABALPUR\n                                                                 BEFORE\n                                                   HON'BLE SHRI JUSTICE VIVEK AGARWAL\n                                                        ON THE 14th OF OCTOBER, 2022\n\n                                                MISCELLANEOUS APPEAL No. 3226 of 2013\n\n                                            BETWEEN:-\n                                            M/S JAIN BROTHERS SALE CENTRE PARSI\n                                            ASSOCIATION FLAT NO.14/15 BUILDING NO.7A\n                                            OLD PUMP HOUSE ANDHERI EAST MUMBAI -\n                                            400093 (MS.)\n\n                                                                                           .....APPELLANT\n                                            (BY SHRI RAJNEESH GUPTA - ADVOCATE)\n\n                                            AND\n                                       1.   ANJU ADIWASI W/O LATE UMASHANKAR\n                                            ADIWASI, AGED ABOUT 24 YEARS, VILL. AND\n                                            POST KONIYAKALA P.S. JAVA TAH. TEONTHAR\n                                            DISTT. REWA (MADHYA PRADESH)\n\n                                       2.   AMARJEET ADIWASI S/O SUBHAI ADIWASI\n                                            VILLAGE AND POST KONIYAKALA POLICE\n                                            STATION JAVA, TAHSIL TEONTHAR REWA\n                                            (MADHYA PRADESH)\n\n                                       3.   DHANRAJUA DEVI W/O AMARJEET ADIWASI\n                                            VILLAGE AND POST KONIYAKALA POLICE\n                                            STATION JAVA, TAHSIL TEONTHAR REWA\n                                            (MADHYA PRADESH)\n\n                                       4.   GENERAL MANAGER UNION OF INDIA\n                                            WESTERN RAILWAY, CHURCH GATE, MUMBAI,\n                                            M.H. (MADHYA PRADESH)\n\n                                                                                         .....RESPONDENTS\n                                            (SHRI ARUBENDRA SINGH      PARIHAR    -    ADVOCATE   FOR\n                                            RESPONDENTS NO.1 TO 3)\n\n                                                MISCELLANEOUS APPEAL No. 3227 of 2013\n\nSignature Not Verified\n  SAN\n                                            BETWEEN:-\nDigitally signed by PUSHPENDRA PATEL\nDate: 2022.10.14 19:29:06 IST\n                                            M/S JAIN BROTHERS SALE CENTRE, PASI\n                                            ASSOCIATION FLAT NO.14/15 BUILDING NO.7A\n                                                                2\n                                            OLD PUMP HOUSE ANDHERI EAST MUMBAI -\n                                            400093 (M.S.)\n\n                                                                                        .....APPELLANT\n                                            (BY SHRI RAJNEESH GUPTA - ADVOCATE)\n\n                                            AND\n                                       1.   BHAGWANIA DEVI W/O LATE SHRI JAWAHAR\n                                            LAL ADIWASI, AGED ABOUT 34 YEARS, VILL.\n                                            AND POST KONIYAKALA P.S. JAVA TAH.\n                                            TEONTHAR DISTT. REWA (MADHYA PRADESH)\n\n                                       2.   MITHALESH ADIWASI      S/O LATE  SHRI\n                                            JAWAHARLAL ADIWASI, AGED ABOUT 14\n                                            YEARS, OCCUPATION: MINORS THROUGH HER\n                                            GUARDIAN    MOTHER    BHAGWANIA DEVI\n                                            VILLAGE AND POST KONIYAKALA POLICE\n                                            STATION JAVA, TAHSIL TEONTHAR REWA\n                                            (MADHYA PRADESH)\n\n                                       3.   KU. SANGITA ADIWASI D/O LATE SHRI\n                                            JAWAHARLAL ADIWASI, AGED ABOUT 12\n                                            YE A R S , OCCUPATION: MINORS THROUGH\n                                            NATURAL           GUARDIAN     MOTHER\n                                            SMT.BHAGWANIA DEVI VILLAGE AND POST\n                                            KONIYAKALA POLICE STATION JAVA, TAHSIL\n                                            TEONTHAR, REWA, M.P (MADHYA PRADESH)\n\n                                       4.   AKALESH        ADIWASI S/O  LATE  SHRI\n                                            JAWAHARLAL ADIWASI, AGED ABOUT 10\n                                            YE A R S , VILLAGE AND POST KONIYAKALA\n                                            POLICE STATION JAVA, TAHSIL TEONTHAR\n                                            REWA (MADHYA PRADESH)\n\n                                       5.   BHAIYALAL ADIWASI      S/O  LATE  SHRI\n                                            RAMKISHORE ADIWASI, AGED ABOUT 71\n                                            YE A R S , VILLAGE AND POST KONIYAKALA\n                                            POLICE STATION JAVA, TAHSIL TEONTHAR,\n                                            REWA, M.P (MADHYA PRADESH)\n\n                                       6.   GUJRATIA ADIWASI W/O SHRI BHAIYALAL\n                                            ADIWASI, AGED ABOUT 66 YEARS, VILLAGE\n                                            AND POST KONIYAKALA POLICE STATION\n                                            JAVA, TAHSIL TEONTHAR REWA (MADHYA\n                                            PRADESH)\n\nSignature Not Verified\n                                       7.   GENERAL MANAGER UNION OF INDIA\n  SAN\n                                            WESTERN RAILWAY, CHURCH GATE, MUMBAI,\n                                            M.H. (MADHYA PRADESH)\nDigitally signed by PUSHPENDRA PATEL\nDate: 2022.10.14 19:29:06 IST\n\n\n                                                                                      .....RESPONDENTS\n                                                                   3\n                                             (SHRI ARUBENDRA SINGH PARIHAR - ADVOCATE FOR\n                                             RESPONDENTS NO.1 TO 6)\n\n                                                  MISCELLANEOUS APPEAL No. 3228 of 2013\n\n                                             BETWEEN:-\n                                             M/S JAIN BROTHERS SALE CENTRE, PASI\n                                             ASSOCIATION FLAT NO.14/15 BUILDING NO.7A\n                                             OLD PUMP HOUSE ANDHERI EAST MUMBAI -\n                                             400093 (M.S.)\n\n                                                                                               .....APPELLANT\n                                             (BY SHRI RAJNEESH GUPTA - ADVOCATE)\n\n                                             AND\n                                       1.    SHYAMKALI ADIWASI W/O LATE SHRI DILDAR\n                                             AHIWASI, AGED ABOUT 34 YEARS.\n\n                                       2.    KU. KAVITA DEVI D/O LATE SHRI DILDAR\n                                             ADIWASI, AGED ABOUT 20 YEARS.\n\n                                       3.    KU. RAVITA DEVI D/O LATE SHRI DILDAR\n                                             ADIWASI, AGED ABOUT 18 YEARS.\n\n                                       4.    KU. SAVITA DEVI D/O LATE SHRI DILDAR\n                                             ADIWASI, AGED ABOUT 15 YEARS.\n\n                                             RESPONDENTS NO.2 TO 4 MINORS THROUGH\n                                             THEIR GUARDIAN MOTHER SHYAMKALI\n                                             ADIWASI.\n\n                                       5.    RAMRATIA ADIWASI W/O LATE            SUKHAI\n                                             ADIWASI, AGED ABOUT 76 YEARS.\n\n                                             ALL RESIDENTS OF VILLAGE AND POST\n                                             KONIYAKALA, POLICE STATION JAVA, TAHSIL\n                                             TEONTHAR,   DISTRICT   REWA (MADHYA\n                                             PRADESH)\n\n                                       6.    GENERAL MANAGER UNION OF INDIA\n                                             WESTERN RAILWAY, CHURCH GATE, MUMBAI\n                                             (MAHARASHTRA)\n\n                                                                                            .....RESPONDENTS\n                                             (SHRI ARUBENDRA SINGH PARIHAR - ADVOCATE FOR\nSignature Not Verified\n  SAN\n\n\n                                             RESPONDENTS NO.1 TO 5)\nDigitally signed by PUSHPENDRA PATEL\nDate: 2022.10.14 19:29:06 IST\n\n                                            These appeals coming on for orders this day, th e court passed the\n                                                                              4\n                                       following:\n                                                                             ORDER\n                                             These appeals have been filed by the Contractor being aggrieved of\n                                       awards dated 05.09.2013 passed in case Nos.56/WC Act/07 Fatal, 55/WC\n                                       Act/07/Fatal and 54/WC Act/07/Fatal, on a common ground that there was no\n                                       evidence to prove that deceased namely, Umashankar Aadiwasi, Dildar\n                                       Aadiwasi and Jawahar Aadiwasi, were the employees of the present appellant\n                                       and the appellant had engaged their services for the purpose of change of\n                                       sleepers from Church Gate station to Greater Mumbai and in absence of any\n                                       such evidence, impugned awards could not have been passed.\n                                             Shri Rajneesh Gupta further submits that penalty has been imposed\n                                       without affording an opportunity of hearing to the appellant.\n                                             Shri Arubendra Singh Parihar supports the awards.\n                                             After hearing learned counsel for the parties and going through the\n                                       record, it is evident that witness of the Contractor-appellant, Shri Rajendra\n                                       Choubey was examined as NAW-2 and he has admitted deployment of\n                                       deceased employees namely, Umashankar Aadiwasi, Dildar Aadiwasi and\n                                       Jawahar Aadiwasi for the work of change of railway sleepers at Jogeshwari\n                                       station on the date of the accident. Thus, in view of the evidence given by\n                                       appellant's own witness Shri Rajendra Choubey, factum of employment stands\n                                       proved and no advantage can be derived by the appellant in this behalf.\n                                             Thus, the only other issue which survives for adjudication is that whether\n                                       Tribunal had afforded an opportunity of hearing to the appellant before\n                                       imposing penalty or not?\nSignature Not Verified\n  SAN\n\n                                             Provisions    contained    in       Section   4A(3)(b)   of   the   Employees'\nDigitally signed by PUSHPENDRA PATEL\n\n                                       Compensation Act, 1923, provides that if, in his opinion, there is no justification\nDate: 2022.10.14 19:29:06 IST\n                                                                           5\n                                       for the delay, direct that the employer shall, in addition to the amount of the\n                                       arrears and interest thereon, pay a further sum not exceeding 50% of such\n                                       amount by way of penalty.\n                                             When this provision is taken into consideration and the fact that appellant\n                                       was represented and was given an opportunity of hearing and onus was on the\n                                       appellant to have pointed out that why compensation was not paid within thirty\n                                       days of happening of the incident and appellant was unnecessarily trying to\n                                       avoid his liability, especially when one of his own witnesses Shri Rajendra\n                                       Choubey has admitted factum of employment and accident taking place,\n                                       discretion of the Tribunal in awarding 25% penalty cannot be faulted with in the\n                                       light of the decision of the Supreme Court in case of Ved Prakash Garg Vs.\n                                       Premi Devi, JT 1997 (8) SC 229, wherein it is held that the amount of\n                                       penalty imposed on the insured employer under contigencies contemplated by\n                                       Section 4A(3)(b) is concerned as that is on account of personal fault of the\n                                       insured not backed up by any justifiable cause, the insurance company cannot\n                                       be made liable to reimburse that part of the penalty amount imposed on the\n                                       employer. The latter because of his own fault and negligence will have to bear\n                                       the entire burden of the said penalty amount with proportionate interest thereon\n                                       if imposed by the Workmen's Compensation Act.\n                                             Thus, it is evident that employer had taken a frivilous plea of non\n                                       engagement of the deceased labourers and had not deposited the compensation\n                                       amount payable within a period of thirty days, incurring liability to pay penalty\n                                       and that being on account of personal fault of the employer, is fully justified\n                                       under the facts and circumstances of the case. Especially looking to the fact\nSignature Not Verified\n  SAN\n\n\n                                       that sub-section 3 of Section 4A is a beneficial provision as has been held by\nDigitally signed by PUSHPENDRA PATEL\nDate: 2022.10.14 19:29:06 IST\n\n                                       this Court in Divisional Forest Officer Vs. Baijanti Bai and others, (1995)\n                                                                           6\n                                       ILLJ 837 MP, I am of the opinion that there is no illegality in the impugned\n                                       orders calling for interference.\n                                             Appeals fail and are dismissed.\n                                             Records of the Court below be sent back.\n\n                                                                                            (VIVEK AGARWAL)\n                                                                                                 JUDGE\n                                       pp\n\n\n\n\nSignature Not Verified\n  SAN\n\n\n\n\nDigitally signed by PUSHPENDRA PATEL\nDate: 2022.10.14 19:29:06 IST