RAKHA RAM Vs. HARCHARAN DASS

JUDGEMENT

(1.) The petitioner-workman's claim for compensation has been declined to him by the Commissioner under the Workmen Compensation Act on the ground that the petitioner has not been able to prove that he was a workman; rather he had been employed as a casual worker. A bare reading of the impugned order indicates that the learned Commissioner not only wrongly placed the onus of the issue "whether the applicant is a workman within the meaning of the Act" on th petitioner-workman but in the light of the said onus he has completely misdirected himself in appreciating the evidence on record. As has been laid down by this Court in Smt. Raj Rani W/o Jagdav Datt and other v. Firm Narsing Das Mela Ram and another,1964 AIR(P&H) 315 there is abundance of authority for the proposition that onus of proving both the matters specified in the definition of workmen in clause (n) of Section 2 of the Workmen Compensation Act have to be proved by the employer.

(2.) It is the admitted position that the respondent-employer has not led any evidence to discharge this onus. As per the Court order dated October 7, 1970, counsel for the respondent made a statement that but for the statement of the respondent, he was not to examine any other evidence, in the case. Subsequently even the respondent was not examined; rather on October 21, 1970 the counsel for the respondent stated that he did not want to examine him at all. Though on this basis alone the claim of the appellant has completely established with the evidence of Dalbir Chand (AW.1), Hansa Singh (AW.2) and his own statement that he was in the services of the respondent as machine-cum-Operator on regular basis and it was during the course of the employment that he suffered the injuries for which he deserves to be compensated.

(3.) The learned counsel for the appellant, while not disputing the correctness of the amount of compensation (Rs. 1862/-) as calculated by the Commissioner, contends that in view of th provisions of Section 4-A of the Act the appellant-workman is not only entitled to interest at the rate of 6 per cent per annum from the date of injuries (October 22, 1968) he suffered, but the respondent-employer is also liable to pay penalty to the extent of 50 per cent of amount of compensation. In support of this contention of her's she places a firm reliance on the judgment of Supreme Court in The Municipal Commissioner, Baroda v. Patel Engineering Co. Ltd. and others, 1976 ACJ 104, wherein their Lordships after considering the provision of this section have held as under :-