PUBLIC WORKS DEPARTMENT Vs. COMMISSIONER, WORKMENS COMPENSATION

JUDGEMENT

(1.) TWO persons namely, Shamas -ud -Din and Ghulam Rasool, working as Labourers under the fourth respondent a contractor employed by the P. W. D. for construction of a road, having met with fatal accident on 24th March, 1973, a report to that effect was lodged by the Executive Engineer (R& B) Batote Division with the Assistant Labour Commissioner, Doda. Commissioner under the workmens Compensation Act, 1923 (hereinafter the Act) here the first respondent, on 4th Sept, 1973, who pursuant thereto issued notices to the legal representatives of the deceased labourers. Two separate applications i.e. one by the second respondent alleging to be the father of Shamas -ud -Din, and the other by the third respondent alleging to be the mother of Ghulam Rasool, each claiming a sum of Rs. 7000/ - as compensation came to be filed before the first respondent The first respondent disposed of these applications by a common order, awarding a total sum of Rs. 11,000/ - i.e. Rs. 7,000/ - on account of compensation Rs 3,500/ - on account of penalty and Rs. 500/ - on account of costs in favour of each claimant, to be paid by the appellant and the fourth respondent in equal shares as the principal employer and the contractor respectively. This order has been challenged in this appeal by P. W. D. alone.

(2.) MR . Sharma has taken only two points in support of the appeal: one, that the appellant cannot be said to be the principal employer viz a viz the deceased labourers within the meaning of section 12 of the Act, and two, that the imposition of penalty was wholly unjustified. I now proceed to deal with the points seritim.

(3.) SUB -section (i) of Sec. 12 of the Act reads as under: - (1) Where any person (hereinafter in this section referred to as principal) in the course of or for the purposes of his trade -or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him, and where compensation is claimed from the principal, this act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed". Amplifying his first point. Mr. Sharma has argued that in order to bring the appellant within the definition of principal employer it was .necessary to show that the work relating to which it had appointed the fourth respondent as its contractor was ordinarily a part of its trade or business, adding that, the expression trade or business used in sec, 12 has the, same meaning as is assigned to it in commercial parlance. Constructor of roads not being in the nature of commercial functions of the State, the appellant, argued the learned counsel could not have been made liable as the principal employer under section 12. He has relied upon a single Bench decision of Andhra Pradesh High Court, viz Y.Srinivasa Rao versus The commissioner for Workmens compensation, 1972 AC. J 398 which undoubtedly supports his contention.