BISWESWAR RAY CHAUDHURY Vs. KHAGENDRA KAIBARTA

JUDGEMENT

(1.) The petitioner is a contractor employed by the Assam Bengal Railway, opposite party No. 7, in this rule. He employed a labourer of the name of Bhogiram Nadial, the father of the opposite parties Nos. 1 to 6. Bhogiram Nadial fell down from a ballast train on 4 August 1934 and died on the following day. The Commissioner appointed under the Workmen's Compensation Act served a notice on the Assam Bengal Railway under Section 10-A, "Workmen's Compensation Act. The Railway Company admitted liability and deposited Rs. 600 under the provision of the said section. Thereafter it is stated that the Railway Company deducted Rs. 600 from the petitioner's bill. The petitioner thereafter made an application before the Commissioner for being given an opportunity to contest his liability, he taking up the position that the dependents of the deceased labourer are not entitled to claim any compensation. The Commissioner passed the following order on the 3 January 1935: I am not required to make any inquiry now, as the Railway Authority, the real employer, after inquiry, has accepted the liability. It the Railway Authorities were satisfied that there was no liability they would have disclaimed it.

(2.) The petitioner has moved this Court against this order. In the explanation submitted by the Commissioner in pursuance of an order of my learned brother McNair, J. he has stated that under Section 12 of the Act the Railway Company was liable to pay compensation and "when the principal," namely the Railway Company admitted liability there was no necessity to make any inquiry. It does not appear from the Act that when the principal accepts liability the contractor can deny it.

(3.) In my judgment the orders passed by the Commissioner proceed upon misconception. The petitioner was the employer of the deceased labourer and not the Railway Company. The Railway Company is the principal of the employer, namely, of the contractor, and is under the circumstances defined in Section 12 liable directly to the labourer's dependents as if it was the employer. This is quite clear from Section 12 of the Act. The notice under Section 10-A ought to have been given not to Railway Company but to the petitioner, inasmuch as no claim had been preferred by the dependents of the deceased labourer against the Railway Company. Besides as Sub-section (2), Section 12 puts the contractor under the liability to indemnify the Railway Company, he is entitled to notice and can certainly dispute the claim of the dependents of the deceased labourer. Rule 36 of the rules framed by the Government of India is clear on the point. Mr. Kastgir who appears for the Assam Bengal Railway Company does not oppose the rule and he wants the inquiry to be made in the presence of the petitioner. I accordingly set aside the orders passed. If the Commissioner wants to proceed under S, 10-A of the Act he must serve a notice on the petitioner and proceed according to law. The rule is made absolute but without costs.