Heard Sri Jitendra Shanker Pandey, holding brief of Sri Tarun Verma for the appellant; Sri S.M. Ali for the respondent and perused the record.
The instant appeal has been filed by the employer (the Railway Administration) against the order dated 29.03.2001 passed by the Workmen Compensation Commissioner & Asst. Labour Commissioner, Jhansi Region, Jhansi in W.C. Case No. 11 of 1999 by which the appellant has been directed to deposit of Rs. 2,44, 944/- with interest at the rate of 6% from the date of accident as compensation payable to the claimant-respondent for the injuries which he suffered in an accident that occurred on 19/20.11.1997.
A perusal of the lower court record reveals that the claimant-respondent filed a claim under the Workmen Compensation Act, 1923 (now, Employees Compensation Act, hereinafter referred to as the Act) alleging therein that he was employed as a driver in the Railways. On 19/20.11.1997, while he was taking Train No. 2779 Down (Goa Express) from Jhansi Junction to Nizamuddin, after crossing Agra Junction and before Mathura Junction, between Gate No. 555 and Gate No. 556, the Goa Express Engine dashed into a standing Inter-City Express. As a result of which, the entire dash board of the Goa Express Engine got damaged in which the left leg of the claimant got caught and it had to be amputated to take out the claimant from the Engine. Based on the disability caused, the age and the salary of the claimant, a compensation of Rs 1,87,764/- was sought apart from penalty, etc. The Railway Administration contested the claim on ground that the claimant himself was negligent in not following the signal to stop the train, which was "ON" and, as such, was guilty of breach of Rules GR 09.02 and SR 9.02(1) and since the accident occurred on account of the breach of those rules as also disregard of the signal, no compensation was payable to the claimant in view of sub-clauses (ii) and (iii) of clause (b) of the proviso to sub-section (1) of Section 3 of the Act. It was pleaded that the claimant was charge-sheeted for the breach of the aforesaid rules, in which, the claimant accepted the charges, upon which, he was compulsorily retired from service.
The learned Commissioner repelled the plea of the Railway Administration by observing that in the movement of a train, several departments and persons are involved so as to ensure the safety and security of the train and as the department did not lead any evidence to show that the claimant alone was responsible for the accident, the claim cannot be said to be barred by sub-clauses (ii) and (iii) of clause (b) of the proviso to Section 3(1) of the Act.
Assailing the order passed by the Commissioner, the learned counsel for the appellant submitted that from the Memorandum of Charges issued to the claimant-respondent and the admission of his guilt by the claimant-respondent before the authority concerned, the claim was squarely barred by sub-clauses (ii) and (iii) of Clause (b) of the proviso to section 3(1) of the Act.
The appeal was admitted by this Court and the following substantial question of law was framed for consideration:-
"Whether in view of the admitted fact that the workman admitted his guilt before the authority concerned, the Tribunal has committed an error of law in passing its judgment by misconstruing the provisions of the Act."
In support of his case, the learned counsel for the appellant submitted that from the papers produced before the Commissioner it was clearly proved that the claimant-respondent was served a charge-sheet dated 05.02.1998, in which, the claimant-respondent was charged as under:
"Sri Masjood Ali, Driver, JHS, while working train no. 2779 dn Goa Exp. On 20.11.1997, Ex JHS to NJN is charged with neglect of duty and careless working in that he failed to control and stop his train when automatic signal was 'ON' in HDL-SHLK Section, as a result of which 2779 dn collided against 4005 Dn at km. 1455/18020 in HDL-SHLK Section at about 06.08 hrs on 20.11.97. He, thus, violated GR 9.02 and SR 9.02(1) of G & SR Book 1981 Edition."
It was submitted that GR 9.02 and SR 9.02 have been framed for the safe movement of trains to ensure safety of passengers as well as the employees. According to the rules the claimant was required to stop the Train when the signal was "ON". It has been submitted that signals are safety device to ensure safety of the employees and its disregard can cause an accident. It was submitted that as admittedly the charge of neglect in following the rules as also disregard of the signal has been admitted by the claimant, in his response to the charge sheet, the claim became barred by sub clauses (ii) and (iii) of clause (b) of the proviso to sub section (1) of Section 3 of the Act. Attention of the Court was invited to letter dated 20.05.1998 written by the claimant, which reads as follows:-
"The Sr. DEE TRO, DRM Office, Jhansi, Through : Proper Channel Ref: SF 5 No. JHS/T/106/SA-A1/97-98/870 Sir, With due respect, I beg to say on 20.11.97 2779 Dn Goa Exp. met with an accident in automatic Signal, section between HDL-SHLK and as a result of this accident, I lost my right leg which has deprived me of earning my livelihood and natural punishment imposed.
I accept the charge levelled in the above mentioned SF-5 and hence I do not want any DAR enquiry to be conducted in this regard.
I shall abide by the decision and assure you that shall not appeal against the penalty imposed.
Hoping for natural justice on humanitarian grounds.
In response to the above submissions, the learned counsel for the claimant-respondent submitted that mere negligence on part of the workman cannot be a ground to deprive him of the compensation on account of a personal injury suffered by him in an accident arising out of and during the course of his employment. It was submitted that for applicability of sub-clause (ii) of clause (b) of the proviso to sub-section (1) of section 3, there should be wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees whereas for applicability of sub clause (iii) of clause (b) of the proviso there should be wilful removal or disregard of any safety guard or other device. It has been submitted that the charge, as framed in the charge sheet, did not disclose that there was any "wilful" disobedience or disregard or removal, as the case may be, of an order, or a rule, or a safety device, or a safety guard, as contemplated by sub clauses (ii) and (iii) of clause (b) of the proviso to sub section (1) of Section 3 of the Act. It was thus submitted that the order of the Commissioner requires no interference.
Having considered the submissions of the learned counsel for the parties, the question that arise for consideration in this appeal is whether in view of acceptance of the charge, as framed by the Railway Administration against the claimant-respondent, can it be said that the claim of the claimant-respondent was barred by sub-clauses (ii) and (iii) of clause (b) of the proviso to sub-section (1) of section 3 of the Act. Before deciding the aforesaid issue, it would be useful to refer to the provisions of section 3(1) of the Act, which provides as follows:-
"3. Employer's liability for compensation.--(1) If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable --
(a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to--
(i) the employee having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee."
A perusal of the sub-clause (ii) of clause (b) of the proviso to sub-section (1) of section 3 of the Act would go to show that the employer would be absolved from liability to pay compensation in respect of any injury, not resulting in death or permanent total disablement caused to an employee by accident arising out of and in the course of his employment, if the following conditions are satisfied: (a) that such injury must be directly attributable to wilful disobedience of the employee to: (i) an order expressly given, or (ii) a rule expressly framed; and (b) that such order or rule must have been given or framed, as the case may be, for the purpose of securing the safety of employees. Likewise under sub clause (iii) of clause (b) of sub section (1) of Section 3 an employer can be absolved from his liability if he can establish that the accident is directly attributable to the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee.
In sub clause (ii) as well as sub clause (iii) of clause (b) of the proviso to sub section (1) of section 3, the expression "wilful" is of significance. To be "wilful", act must be intentional, deliberate, calculated, conscious with full knowledge of legal consequences flowing therefrom. It excludes casual, accidental, involuntary, negligent, unintentional acts or genuine inability. In law it implies nothing blameable, but merely that the person for whose action or default the expression is used is a free agent and that what has been done arises from the spontaneous action of his will (vide State of Orissa v. Md. Illiyas : (2006) 1 SCC 275). In Krushnalal Buxi v. Sudarshan Pani, 1995 Supp (4) SCC 238, the apex court observed that the word ''wilful' is a word of many meanings with its construction often influenced by its context. Wilful act may be construed as one done intentionally, knowingly, and purposely with supine indifference or without justifiable excuse so distinguished from an act done carelessly, thoughtlessly, needlessly or inadvertently. A wilful act differs essentially from a negligent act. The former is positive and the latter is negative."
In the case of Managing Director and others v. L.Rs. Of Devi Lal and others : 2007 (1) T.A.C. 491 (Raj.), a Division Bench of the Rajasthan High Court took the view that mere negligence on the part of the workman, which may have resulted in the accident does not take away the case from the purview of employer's liability to pay compensation, if he has suffered injuries in an accident arising out and in the course of employment. It was observed that use of expression wilful disobedience means deliberate disobedience of such order or rule made for the purpose of securing the safety of workman. It was observed that mere negligence without any specific attempt on the part of the workman to disobey the order expressly given or rule expressly framed for the purpose would not bring the case within this exception. While holding as above, the Rajasthan High Court placed reliance on several decisions of various High Courts including a decision of Bombay High Court in the case of Ramrao Zingraji Shende v. India Yarn Manufacturing Co., : 1993 (1) T.A.C. 173. In that case, the Bombay High Court took the view that disobedience may be the result of forgetfulness or the result of impulse of the moment. Such would not be sufficient as the statute exempts the employer from liability only when the disobedience is wilful, that is deliberate and intended. It was observed that a man does a thing willfully when he does it intentionally because he expects some benefit to himself either some convenience or an easy way of doing a piece of work and so forth. Mere negligence of the worker cannot be regarded as wilful disobedience by the workman to an order expressly given.
From the law noticed above, it is clear that an act of mere negligence in not following the rules, orders or safety measures will not be sufficient to bring such an act within the purview of a wilful act, as contemplated by sub clauses (ii) and (iii) of clause (b) of the proviso to sub section (1) of Section 3 of the Act. Even otherwise, the expression "accident" means an untoward mishap which is not expected or designed. An untoward mishap may occur for various reasons such as act of God, technical fault, negligence, etc. Therefore, if sub clauses (ii) and (iii) of clause (b) of the proviso to sub section (1) of Section 3 of the Act is given wider interpretation so as to include cases of mere negligence also, the very purpose for which sub section (1) of Section 3 has been enacted, which is to protect the interest of a workman on duty, would stand frustrated. Accordingly, it is held that an act of mere negligence cannot be brought within the purview of expression "wilful disobedience" or "wilful disregard" as used in sub clauses (ii) and (iii) respectively of clause (b) of the proviso to sub section (1) of Section 3 of the Act.
Coming to the facts of the instant case, the charge against the claimant respondent, which according to the appellant was admitted by the claimant, is with regards to neglect of duty and careless working by the claimant inasmuch as he failed to control and stop his train when automatic signal was 'ON'. Neither there is any charge nor any evidence to show that that the claimant deliberately or intentionally disobeyed the rules or orders or disregarded the signal. The charge, which has been leveled is with regards to neglect of duty and careless working. Such an act cannot be taken to be wilful disobedience of an order expressly given or to a rule expressly framed or wilful disregard to a safety device. It may be observed that failure to notice a signal to stop a train would not amount to its disregard. More so, when it is not the charge against the claimant that he noticed the "ON" signal and deliberately disregarded it. Therefore, even if the claimant respondent had accepted the said charge, his claim cannot be defeated under either sub clause (ii) or sub clause (iii) of clause (b) of the proviso to sub-section (1) of section 3 of the Act.
In view of the discussion made above, I do not find any good reason to accept the contention of the learned counsel for the appellant that the claim of the claimant-respondent was barred by sub-clauses (ii) and (iii) of clause (b) of the proviso to sub-section (1) of section 3 of the Employees Compensation Act, 1923. No other point was urged by the learned counsel for the appellant.
The appeal is, therefore, dismissed. Interim order, if any, stands discharged. There is no order as to costs.
Order Date :- 14.5.2014 Sunil Kr Tiwari