This appeal has been preferred against the judgment and order dated 15.12.2009, passed by the Assistant Labour Commissioner, U.P., Unnao in Workmen Compensation Case No.12 of 2007, by which an amount of Rs.1,63,711/- together with 12 per cent interest from the date of accident has been awarded as compensation against U.P. State, which shall be payable within 30 days from the date of the order.
Brief facts of the case are that one Vinod Kumar was employed as workman by the appellants in Mahatma Gandhi National Rural Employment Guarantee Scheme for construction of road at the rate of Rs.58/- per day, as labour charges. On 01.01.2007, he suffered fatal injuries during the course of employment and, died on 05.01.2007 in Ursala Hospital, Kanpur. His widow, who is respondent no.2 in this appeal, moved an application for compensation, upon which the case was initiated and the compensation was awarded, against which this appeal has been preferred.
Heard learned counsel appearing on behalf of the parties and have gone through the records.
The only point, as argued by learned Standing counsel, was that Rs.25,000/- compensation has been paid to the respondent no.2 and the deceased was not "workman" within the meaning, as provided in Workmen's Compensation Act, 1923, (here-in-after referred to as '1923 Act'), as Act No.42 of 2005 of The National Rural Employment Guarantee Act, 2005, is a complete Act in itself, in which mode of compensation has already been provided. It was also argued that under Section 28 of Act No.42 of 2005, the provisions of Act have an overriding effect over all other Acts and, as such, compensation under '1923 Act', cannot be awarded.
Under Section 2 (1) (n) of the '1923 Act', "workman" has been defined as, "workman" means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business. In this definition "workman" includes any person employed in any such capacity as is specified in Schedule II of ' 1923 Act'. Under Schedule II of Section 2(1)(n) of the '1923 Act', the deceased was employed as a workman.
As far as Section 28 of Act No.42 of 2005 is concerned, it reads as under:-
"The provisions of this Act or the Schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law:
Provided that where a State enactment exists or is enacted to provide employment guarantee for unskilled manual work to rural households consistent with the provisions of this Act under which the entitlement of the households is not less than and the conditions of employment are not inferior to what is guaranteed under this Act, the State Government shall have the option of implementing its own enactment:
Provided further that in such cases the financial assistance shall be paid to the concerned State Government in such manner as shall be determined by the Central Government, which shall not exceed what the State would have been entitled to receive under this Act had a Scheme made under this Act had to be implemented."
In view of the aforementioned provision, the Act No.42 of 2005 might have been overriding effect against the State law, but Workmen's Compensation Act, 1923 is a law passed by Union of India.
The third argument advanced by the learned Standing Counsel is that the respondent no.2 has already been sanctioned Rs.25,000/- as compensation, therefore the impugned order deserves to be set aside.
I do not find any force in this plea. The learned trial Court has awarded the compensation in accordance with the settled norms of justice, by which the compensation has been determined at Rs.1,88,711/-. After determination of compensation, learned trial Court has deducted Rs.25,000/- and passed an award for Rs.1,63,711/- only. In view of this deduction, the plea raised by learned Standing Counsel is not tenable at law.
In Act No.42 of 2005, there is no provision of settlement of disputes with regard to injury caused, permanent disablement occurred or death caused to any workman, worker or any person employed, in this regard. "The objective of the legislation is to enhance the livelihood security of the poor households in rural areas of the country". It is also provided that "if an eligible applicant is not provided work as per the provisions of this legislation within the prescribed time limit, it will be obligatory on part of the State Government to pay unemployment allowance at the prescribed rate". In Section 2(h) even minimum wage has not been defined and it is provided that "minimum wage" means the minimum wage fixed by the State Government under Section 3 of the Minimum Wages Act, 1948 for agricultural labourers as applicable in that area".
Again in Section 6(2) it is mentioned "Until such time as a wage rate is fixed by the Central Government in respect of any area in a State, the minimum wage fixed by the State Government under Section 3 of the Minimum Wages Act, 1948 for agricultural labourers, shall be considered as the wage rate applicable to that area".
Under Section 28, the overriding effect of the Act has been described, which has already been reproduced above.
The relevant word has been impressed boldly so as to make it clear that in view of this provision, Act No.42 of 2005 does not come in the way to decide any adjudication under the Workmen's Compensation Act, 1923, which has been drastically amended by Act No.45 of 2005, which has been made applicable with effect from 18.01.2010. The incident took place on 01.01.2007 and, as such, the determination of such incident shall be considered in view of the prevailing Act, prior to amendment. Under Section 2(n), "workman" has been defined, which includes any person employed in any such capacity as is specified in Schedule II (viii)(c); any person shall be workman within the meaning of Section 1(n), who has been employed in the construction, maintenance, repair or demolition of any road, bridge, tunnel or canal.
Accordingly, the deceased was a 'workman' employed under the Act No.42 of 2005 and he shall have to be treated as a 'workman' within the meaning of Workmen's Compensation Act, 1923, or in case of his death, his legal representatives shall be entitled to get the benefit of the provisions contained in Workmen's Compensation Act, 1923.
It was vehemently argued by learned Standing Counsel that Act No.42 of 2005 has been introduced by the Parliament, in its wisdom, to provide supplementary wage employment in rural areas to the unemployed persons in view of the dimension of the unemployment in rural areas and, as such, the amount sanctioned by the Union Government or the State Government is not to be paid towards the compensation, which will jeopardize the development schemes and ultimately employment of rural unemployed persons.
This argument is not tenable either on point of facts, or on point of law. Learned Standing Counsel could not reply as to what will be the fate of unemployed agricultural labourers in rural area, who suffer temporary or permanent bodily injury, or death is caused. Of course Act No.42 of 2005 is a welfare legislature, but welfare legislation means welfare of all, including those who suffer damages in implementing the schemes carried out by the Union Government, State Government, or its agencies, in any manner, whatsoever. Damages have to be awarded in all cases where there is injury of any kind, bodily or otherwise. There cannot be any law without a remedy. In order to supplement the view of this Court, it cannot be overlooked that the Parliament has enacted Public Liability Insurance Act 1991, which enables and directs the Collector to immediately grant minimum relief, in cases of accident. Under this Act, the Collector can impose penalty, which includes offences by the government departments in case of death or injury to any person, other than the "workman". It exhaustively deals with the power of entry and inspection by any person authorized by the Central Government, in this behalf, power of search and seizure and, restrain any person from handing hazardous or substances and other things etc. Under Section 2(e) of the Workmen's Compensation Act, 1923 defines "employer" - word "employer" includes any body of persons whether incorporated or not and any managing agent of that employer.
Under Section 2(f) "managing agent" has been defined-"managing agent" means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business.
In view of the discussions made above, the first appeal from order has no force and is accordingly dismissed.
Order Date :- 20.9.2012.
Rks.