UNION OF INDIA Vs. NINA MASADIYABHAI TITABHAI

JUDGEMENT

(1.) HEARD learned Advocate Mr. Ramnandan Singh for appellant Union of India and learned Advocate Mr. YV Shah for respondent workman Ninama Sadiyabhai Titabhai.

(2.) BY filing this appeal, appellants have challenged judgment and order passed by Workmen's Compensation Commissioner, Godhra vide Exh. 56 in WC Application No. 58 of 2004 decided on 20th December, 2006. WC Commissioner Godhra has awarded amount of compensation of compensation in favour of respondent claimant, Rs. 4,06,656. 00 with 9 per cent interest from date of accident till date of realization thereof and 25 per cent penalty of Rs. 1,01,664. 00 also awarded in favour of respondent claimant, with costs of Rs. 11,000. 00 in favour of respondent claimant.

(3.) LEARNED Advocate Mr. Ramnandan Singh submitted that accident occurred on 15. 5. 2000 wherein both legs of respondent workman came to be amputated below knee while discharging his duties and protecting railway property. He further submitted that after said incident, railway administration has offered alternative employment to respondent in post of Commercial Clerk at Godhra and respondent was asked to undergo training at Udaipur but respondent expressed his inability to travel to Udaipur for training. He further submitted that Special Civil Application No. 24085 of 2005 was filed by respondent seeking voluntary retirement and for appointment of his son on compassionate grounds as per applicable Scheme and under section 47 of Disabilities Act, 1995. He further submitted that respondent was permitted by this Court vide judgment and order dated 21. 6. 2006 to retire voluntarily from service with effect from 1. 4. 2003 and railway administration was directed to consider case of son of respondent for appointment on compassionate grounds. He further submitted that it was also directed that WC Case No. 58 of 2004 which was pending should be decided as early as possible preferably on or before 31. 12. 2006. Railway Administration has accepted prayer of respondent of voluntary retirement and thereafter son of respondent was appointed in railways on compassionate grounds. He further submitted that in the meanwhile, railway administration filed written statement in Workmen's Compensation Case inter alia contending that the provisions of WC Act, 1923 are not applicable to member of Railway Protection Force and Armed Force of the Union of India. He further submitted that Commissioner for Workmen's Compensation vide its judgment and order dated 28. 12. 2006, allowed application of respondent and directed railway administration to pay compensation of Rs. 4,06,656. 00 with 9 per cent interest per annum from date of accident till payment, Rs. 1,01,664. 00 as penalty @ 25 per cent of awarded amount and costs of Rs. 11,000. 00 which is under challenge in this appeal. He submitted that WC Commissioner has failed to appreciate that under section 2 (1) (n), 'workman' does not include any person working in the capacity of a member of Armed Forces of Union. He further submitted that it ought to have been appreciated by WC Commissioner that Railway Protection Force is constituted and maintained by Central Government as an Armed Force of the Union as specifically provided in section 3 of Railway Protection Force Act, 1957 and, therefore, provisions of WC Act, 1923 are not applicable to Railway Protection Force. He further submitted that WC Commissioner ought to have held that he has no jurisdiction to pass impugned judgment and award. He further submitted that WC Commissioner has committed an error in interpreting section 10 of RPF Act, 1957 which holds that Director General and every member of the Force shall, for all purposes, be regarded as railway servants within the meaning of Indian Railways Act, 1890 and shall be entitled to exercise powers conferred on railway servants by or under that Act. Section 10 of Railway Protection Force Act, 1957 merely authorises a member of the force to exercise powers conferred on railway servants by or under Indian Railways Act, 1890. Aforesaid section does not override provisions of WC Act, 1923. He also submitted that WC Commissioner has failed to appreciate section 19 of Railway Protection Force Act, 1957 which lays down that nothing contained in Payment of Wages Act, 1936 or ID Act, 1947 or Factories Act, 1948 or any corresponding law relating to investigation and settlement of industrial dispute in force in a State shall apply to members of the force. He further submitted that by virtue of aforesaid section also, WC Act, 1923 cannot be said to be applying to members of RPF. He also emphasized that Commissioner has failed to appreciate deposition of Balchand Shekhawat, witness of Railway Administration recorded at Exh. 48. He also submitted that WC Commissioner has committed an error in holding that Members of the Force who were enrolled prior to 1985 continued to be governed under WC Act, 1923. He further submitted that after amendment of RPF Act, members of existing force were required to exercise their option in writing within 30 days from commencement of RPF Act to retire from service and in absence of such option, members were deemed to be continued in service. A member who has not exercised an option to retire and has continued will be governed by amended Act and cannot claim compensation under WC Act, 1923. He further submitted that WC Commissioner has failed to appreciate that respondent has not suffered loss of employment on account of accident. He furtehr submitted that it ought to appreciated by WC Commissioner that respondent was offered alternative employment, thereafter, in compliance with order passed by this Hon'ble Court dated 21. 6. 2006 in Special Civil Application NO. 24085 of 2005, the respondent is permitted to voluntary retire and matter regarding granting compassionate appointment to his son is pending consideration at head quarter office. He further submitted that respondent cannot have voluntary retirement and compassionate appointment of his son on one hand and compensation of more than five lacs with interest @ 9 per cent on the other hand. He further submitted that WC Commissioner has erred in directing payment of penalty. He further submitted that Commissioner has failed to appreciate that respondent was offered alternative employment and there has not been any default on the part of appellant railway administration justifying payment of penalty or interest. In light of aforesaid contentions, following questions of law have been raised by learned Advocate Mr. Ramnandan Singh as referred to in para 6 of memo of appeal: