J.B. Koshy, J. 1. A novel question arises in this appeal. When a registered worker under the Headload Workers' Scheme framed under the Kerala Headload Workers Act, in a scheme covered area met with an accident in the course and arising out of employment, who is liable to pay compensation under the Workmen's Compensation Act, whether the statutory Committee or the registered establishment for whom the workman was working at the time of accident? This appeal is filed by the Head Load Workers' Welfare Board Local Committee, Palakkad against the award of the Commissioner for Workmen's compensation granting 100% workmen compensation to a head load worker. The accident is admitted. The accident occurred during the course of employment and it is also not disputed that the accident arose during the course of employment and it has arisen out of employment. Wages paid is also admitted. In this case the injured workman while carrying a load on his shoulder, his legs slipped and the load fell on his left leg and suffered fracture to the left leg. The doctor who examined him by Ext. A4 and Ext. A5 certificates certified that there is 15% permanent disability. However, the Commissioner, considering the nature of the job awarded 100% disability and also directed the Headload Workers' Local Committee to pay the amount. Two substantial questions are placed by the appellant. The main question is who is the employer in this case? Secondly whether the Commissioner is right in giving 100% compensation ignoring the percentage of disability fixed in the medical certificate of the Doctor.
2. The contention of the appellant is that workman was working for the second opposite party, the 2nd respondent herein and therefore the real employer is the second respondent and only second respondent should be mulcted with the liability of payment of workmen's compensation. It is not disputed that the worker concerned was a registered worker under the Kerala Headload Workers Act as well as under the Scheme and he was sent to work for the second respondent for that time by the appellant Committee. The worker was bound to do work in any of the establishments sent to by the committee, depending upon the work in the pool allotted to him. Allotment of head load workers to certain pools and certain establishments are peculiar in the Kerala State. The question to be considered is whether liability to pay the workmen's compensation is on the Committee or not. It has to be decided only after going to the provisions of the Act as well as the Scheme. Definition of Employer under the Workmen's Compensation Act is very wide and it can be a body also and it includes managing agent of the employer also. Under the provisions of the Headload Workers Act (hereinafter referred to as "The Act") the term employer is defined under Section 2(i) which is as follows:
"(i) 'employer' means, -
(i) in relation to a headload worker engaged by or through a contractor, the principal employer;
(ii) in relation to headload worker who is not employed by any employer or contractor, the Committee constituted under Section 18; and
(iii) in relation to any other headload worker, the person who has ultimate control over the affairs of the establishment in or for which the headload worker is employed and includes any other person to whom the affairs of such establishment are entrusted, whether such person is called an agent, manager or by any other name prevailing in such establishment."
Even though Headload Workers' Act is applicable to the entire State of Kerala, wherever headload workers are engaged, the Scheme is applicable only to specified areas. Once the Scheme is applicable, all headload workers other than permanent workers attached to establishments can be employed by establishments only through the Committee constituted under the Scheme. Establishment has to register their names and employer also has to register their names. The headload workers are enrolled by the Committee. There is no role for the appointment or enrolment of workers by the so called registered establishments and once a headload worker is registered, he can work only on the area allotted by the Committee. If any person's name is not registered, there are provisions for appeal and raising disputes in the Act and Scheme.
3. Obligations of headload workers are mentioned in Chapter III. Chapter III paragraph 8 reads as follows:
"8. Every registered headload worker, to whom Registration has been granted by (Convener of the Committee) shall work only in the area per allotment made by the Committee."
Paragraph 10 provides that every headload worker shall be deemed to be employed by the Committee. It reads as follows:
"10. Every headload worker shall be deemed to be employed by the Committee of that area and his work shall be supervised by the person for whom the workers have been allotted, as well as by any officer of the Committee."
Therefore, it can be seen that a statutory fiction is applied and employer is deemed to be the Committee. Under paragraph 11 of Chapter III there is a statutory prohibition for employing the headload workers except in accordance with the provisions in the Scheme. Chapter V paragraph 13 provides that the Scheme when brought into force shall be administered by the Committee. Under Chapter VI paragraph 19 the Committee shall determine the number of headload workers needed for their area and for this purpose increase or decrease the number in their register. Now we may go through Chapter VI paragraph 25. Paragraph 25 provides that it is obligatory on the Committee to provide all the statutory benefits to registered headload workers. Paragraph 25 reads as follows:
"25. It shall be the obligation of the Committee to provide all the benefits to registered headload workers arising out of statutory enactments."
Every registered employer has to deposit wages payable to the headload workers on a weekly basis and they are also liable to pay 25% levy for the administration of the Scheme. Para-
graph 32 of Chapter VIII provides that a sum equivalent to 10% of total wages should be kept towards terminal benefits on retirement, superannuation, death, disability etc. Paragraph 32 reads as follows:
"32. The Committee shall keep individual accounts in respect of each worker and credit into his account a sum equivalent to 10% of his total wages at the close of each financial year for payment towards his terminal benefit on retirement, superannuation, death, disability etc."
4. As far as the headload workers allotted by the pool and working for various employers are concerned, provisions of the Scheme are very clear that employer will be deemed to be the Committee and in view of paragraphs 10, 25 and 32 it is clear that Committee has to provide all benefits under statutory enactments whether it is retirement benefits, superannuation benefits, death or disability compensation etc.
5. It is submitted by the learned counsel for the appellant that in view of the provisions of the Scheme, levy is collected for various payments like special death ex gratia to the nominee or legal heirs of the worker at the rate of Rs. 15,000/- for natural death and at the rate of Rs. 30,000 for accidental death and for payment of retirement benefits, Scholarships, invalid pension etc. Various employment assistance is also provided as per the Scheme. For an accident while doing the work medical advance and treatment expenses are also paid under the Scheme. These are all obligations of the employer, discharged by the Committee as employer is deemed by the Committee as regards the pool workers are concerned. However, this principle is not applicable to permanent workers attached to an establishment or headload workers who are not covered under the Scheme. This is applicable only to the headload workers who are appointed and engaged by the Committee and deployed for various purposes in various establishments.
6. In this connection we also refer to the disciplinary powers in paragraphs 33 and 34 of Chapter IX. Paragraph 33 reads as follows:
"33. All matters of indiscipline among the part of workers or employers shall be investigated by an officer authorised by the Chairman."
The other parts of chapter IX also shows that entire disciplinary actions including suspension, dismissal etc. are powers vested with the Committee. Therefore, supervision of the work, appointment of the workers, disciplinary action against the workers etc. are under the exclusive control of the Committee and these are especially for employment purposes.
7. Learned counsel for the appellant submitted that it has been held by the Supreme Court that in the case of dock workers Stevedores is the employer and not the Dock Labour Board. But under the Dock Workers (Regulation & Employment) Scheme there are no statutory provisions making Dock Labour Board as the deemed employer. Under Section 2(i) (2) of the Kerala Act where the headload worker is registered under the Scheme and sent by the Committee to different pools and different establishments, Committee is the deemed employer and in view, of the statutory terms employer is liable to pay compensation and therefore Committee cannot escape from the liability. Registered establishments are paying the amount equal to the full wages to the Committee. Apart from that 25% extra to meet the welfare and statutory benefits are also payable by the establishment as levy. It is a sort of insurance also because if he was not covered under the Scheme, employer would have liability to register him under the ESI Act. The Committee has taken over the liability to pay all the statutory benefits payable to headload workers, by accepting the levy. Therefore, the direction of the Commissioner to deposit the amount of compensation by the Committee cannot be faulted with.
8. With regard to the quantum of compensation awarded by the Commissioner, it can be seen that medical certificate shows that there is only 15% disability. There was a fracture to the workman's leg which was cured also. The doctor only says that it will be difficult for him to carry weight of more than, 50 kgs. As per Schedule I, even if one complete leg is lost and amputation below knee with stump exceeding 12.70 cms. the percentage of loss of earning capacity is 50%. Here there is no amputation. Doctor certified that he has a permanent disability of 15% due to ankylosis of left ankle joint following compound fracture of left Tibia and Fibula. Considering the decision of a Full Bench of this Court reported in New India Assurance Co. Ltd v. Sreedharan 1995-II-LLJ-362 (Ker-FB) and considering the evidence in this case if more than 15% as certified by the doctor was to be given, the Commissioner should have referred the matter to a Medical Board if the present evidence is not sufficient to grant 100% disablement compensation. To re-determine the amount of compensation we remand the matter to the Commissioner for Workmen's Compensation.
The Commissioner shall send the workman to a Medical Board for examination to find out the physical disability and loss of earning capacity. It is submitted that even though the entire amount was deposited, the injured worker was not able to get any amount from the above. The Commissioner on receipt of a copy of this judgment shall release Rs. 10,950/- to the applicant immediately. The question of payment of interest and other matters should be considered by the Commissioner while redetermining the amount of compensation.
9. The M.F.A. is disposed of accordingly.