SARJERAS UNKAR JADHAV Vs. GURINDAR SINGH

JUDGEMENT

(1.) THE appellant is the original applicant. He has challenged the judgment and order dated 10th May, 1984 in Application No. (WCA) 659/c. 118 of 1979 passed by the Commissioner for Workmens Compensation, Bombay.

(2.) MAIN grounds of challenge are :

(3.) NONE appeared on behalf of respondent No. 1 Contractor, Shri Chadrachud, the learned Counsel appearing for respondent No. 2, supports the order of the Commissioner. It was pointed out that respondent No. 2 was admittedly not an immediate employer of the workman. The liability could be fastened on it if at all under section 12 (1) of the said Act only. That sub-section Inter alia provided that a person to be liable under section 12 (1) has to be a person who is carrying on trade or business as principal and, in the course of or for the purposes of his trade or business as principal, and, in the course of or for the purposes of his trade or business, engages a contractor to execute the work who employs the workmen and the work is ordinarily a part of the trade or business of the principal. It is stated that the workman was employed by the contractor for painting electric poles. The business of respondent No. 2 was to supply electricity. It was certainly not painting the electric poles. Therefore, though the contractor was engaged for the purpose of the business which was carried on, the work of painting was not and could not be held to be a part of that business. Under sub-section (2) of section 12 of the said Act, Shri Chandrachud further stated the respondent No. 2 was indemnified so much so that the liability became exclusively that of the contractor and not of the principal. In support of his contentions Shri Chandrachud relied on Calcutta High Court decisions in (S. M. Ghose v. National Sheet and Metal Works) 3, A. I. R. 1950 Calcutta 548 (paras 11-15 pages 549. 550), (New India Tennis v. Aurora Singh) A. I. R. 1957 Calcutta 613, (Para 15 page 616), and (Carrison Engineer v. Guttamna Hanmantdas) 5, 1978 Lab. I. C. 878 (paras 11-14 page 880 ). Alternatively, Shri Chandrachud contended that assuming that the respondent No. 2 was liable for interest and penalty. For this purpose reference was made to the provisions of section 2 (1) (e) and section 4-A of the Act to show that the legislature had in its wisdom recognised the difference between the words compensation, interest and penalty. Liability under section 12 (1) was fastened with regard to compensation only. Therefore, even if it was held that respondent No. 2 was liable for compensation, it would certainly be not liable for penalty and interest.