USHA SRIVASTAVA Vs. PROGRESSIVE FINLEASE LTD.

JUDGEMENT

(1.) PRESENT is an appeal under Section 30 of the Workmen 's Compensation Act, 1923 (hereinafter referred to as the Act ') against the impugned judgment dated 23.11.2011 passed by the Commissioner under the aforesaid Act wherein claim petition of the appellant for grant of compensation has been dismissed.

(2.) BRIEFLY , the facts leading to the filing of the present appeal are as under: - The appellant 's husband late Sh. V.K. Srivastava was working with respondent no. 1 company as an Accounts Assistant performing activities like preparation of tax papers, filing and preparing Income-tax Returns on behalf of the respondent company. Besides the aforesaid work, it is alleged that the husband of appellant was also asked to do the field work including negotiations with the bank employees or carrying out any work vis-ï¿ 1/2-vis any work of the company. Her further case was that on 18.05.2004, her husband was assigned some field work by the company 's director Sh. Govind Gupta i.e. respondent no. 3. On that day, during the course of his employment in the field work he had met with an accident and died on the same day. The appellant had sent a demand notice to the respondent/employer. Thereafter, she had filed an application for seeking death compensation under the Workmen 's Compensation Act. The respondents had filed their written statement. Issues were framed. On 14.12.2007, the appellant had filed her evidence by way of an affidavit and the matter was fixed for cross- examination by the respondents. Thereafter, the case was adjourned for about 14-15 dates but no cross-examination by the respondents was conducted and ultimately their right to cross-examination was closed and thereafter the matter was listed for respondent 's evidence. However, for few dates respondents did not appear and their R.E. was closed. On 12.10.2009, counsel for respondents had appeared and the matter was discussed with the counsel for appellant and impression was given for settling the matter and the said counsel had taken the date. Thereafter, authorized representative of the respondent sought adjournment for calling the Directors of respondent/company in court and the matter was adjourned to 16.11.2009. On 16.11.2009, an application was moved on behalf of the respondents for recalling of order dated 13.05.2009 by which their evidence was closed. Ultimately, on 23.11.2009, Sh. Govind Gupta, Director of the company had appeared and the claim of the appellant was dismissed.

(3.) LEARNED counsel for the appellant has submitted that the Commissioner has passed a non-speaking order. The unrebutted evidence of the appellant has not been considered wherein she had given the details of work being done by her deceased husband. It is submitted that the definition of "workman " as defined u/s 2(1)(n) of the Act is exhaustive. The same is to be read along with list given in Schedule II of the Act which includes the persons who are included in the definition of "workman ". It is alleged that the nature of the work which was being done by the deceased brings him within the ambit of definition of workman ' as defined under the aforesaid provision of the Act. It is submitted that the mere designation of a person as Accounts Assistant will not change his status as that of a workman. It is further submitted that the designation is not decisive in the matter but what is decisive is the dominant nature of duties and functions assigned to an individual. In support of above submission, learned counsel has relied upon Managing Director, J&K P.C.C. v. Commissioner for Workmen 's Compensation and Others, 1992 ACJ 362; Gulabdei Ahir v. Union of India and Another, 1989 ACJ 1072. It is further submitted that the Commissioner has passed a totally non-speaking order and matter needs to be remanded back for deciding afresh after considering the material on record.