Supreme Court: Whether Motor accident claim tribunal can deduct compensation granted to dependents of workman under workman Compensation Act?

 The Motor Accidents Claims Tribunal, as also, the High Court, ordered a deduction therefrom of a sum of ` 3,26,140 (paid to the claimants under the Workmen's Compensation Act, 1923). The said deduction gives full effect to Section 167 of the Motor Vehicles Act. 1988, inasmuch as it awards compensation to the respondents-claimants under the enactment based on the option first exercised, and also ensures that the respondents-claimants are not allowed dual benefit under the two enactments.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 937 of 2013.

Decided On: 05.02.2013

Oriental Insurance Company Ltd. Vs. Dyamavva and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and J.S. Khehar, JJ.

Citation: AIR 2013 SC 1853, MANU/SC/0108/2013.

Read full judgement here: Click here.

Print Page

How to ascertain whether a person is a workman or not as per Industrial disputes Act?

In Standard Chartered Bank (supra) the Court while considering the appointment of the respondent therein as a Personal Financial Consultant in which the key responsibilities were as indicated in para 2 thereof by relying upon the judgment in Inthru Noronha vrs. Colgate Palmolive (India) Ltd, MANU/MH/0259/2005 : 2005 (2) Mh.L.J. 884, has held in para 10 as under;

"10. These duties upon which there is absolutely no dispute or caveat would belie the contention of the first respondent that she was doing work predominantly of a clerical nature. Section 2(s) of the Industrial Disputes Act, 1947 defines the expression "workman" to mean any person "employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward". A Constitution Bench of the Supreme Court in H.R.Adyanthaya vrs. Sandoz (India) Ltd., MANU/SC/0525/1994 : 1994 (II) CLR 552 held that in order that a person can be designated as a workman under Section 2(s) he/she must be employed to do work which falls within one of the stipulated categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. In other words, it is not enough that a person is not covered by either of the four exceptions to the definition. It is now also a well settled principle of law that the burden lies on the person who asserts the status of a workman under section 2(s) to establish with reference to the dominant nature of his/her duties that the work which is performed falls within one of the stipulated categories in Section 2(s). Mukesh K. Tripathi vrs. Senior Divisional Manager, LIC, MANU/SC/0726/2004 : 2004 (III) CLR 534 at para 37 and Ganga Kisan Sahkari Chini Mills Ltd. Vrs. Jaivir Singh, MANU/SC/7946/2007 : 2007(III) CLR 840 at para 9".

Looking to the nature of the services, it has further held in para 18, as under:

"18. The fact that in an organizational structure the employee, in the course of the decision making process, is subject to checks and balances is not a matter which would establish that she/he is a workman within the meaning of Section 2(s). Modern forms of business in corporate organizations put into place a carefully crafted process of checks and balances. Rarely, if ever, would an employee have authoritarian control over business decisions. Employees are made subject to checks and balances both at the lateral and vertical level. Managerial decisions are subject to verification and approval. The fact that decisions of an employee are subject to verification or subject to a system of controls and balances does not establish that the employee is a workman within the meaning of Section 2(s). Managers do not become workmen because their decisions are structured by processes and approvals. Absolute autonomy is not the norm in managerial decision making. Nor does the law insist on absolute discretion or absolute autonomy for a person to be a manager. Basically the answer to the question must depend upon the dominant nature of the duties and responsibilities.

In Standard Chartered Bank (supra), reliance was also placed on Dhruba Kumar Changkokoti vrs. Travel Corporation of India Ltd, MANU/MH/0725/2000 : 2000(II) CLR 644, which holds that a person who was employed to promote tourism of a travel company in Eastern Europe could not be regarded as a workman within the meaning of section 2(s) of the ID Act and so also on Mukesh K. Tripathi vrs. Senior Divisional Manager, LIC, MANU/SC/0726/2004 : 2004 (III) CLR 534, which holds that a person who had been recruited to develop the business of the employer could not have done so without being a full fledged officer of the Corporation and would not be a workman within the meaning of section 2(s) of the ID Act. In Twenty First Century (supra), while considering a plea as to whether a Purchase Officer was a workman within the meaning of Section 2(s) of the ID Act, the following was the answer :

"13. It was, however, argued that the respondent could not be said to be part of the management because he had no one working under him. The true test must depend on the nature of the function and not whether the person has any other employee working under him. Indeed, an employee can be at the lowest managerial post and could still be said to perform managerial function. Having regard to the nature of the activity of purchase, it appears that the function must be classified as managerial being part of the controlling and regulating functions of the industry. In this view of the matter, the respondent no.1 must be held to be an employee mainly in a managerial capacity and is, therefore, excepted from the meaning of "workman" by virtue of section 2(s)(iii) of the Act." {Para 5}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2101 of 2023

Decided On: 13.07.2023

 Abbott India Limited  Vs.  Dipak

Hon'ble Judges/Coram:

Avinash G. Gharote, J.

Citation: MANU/MH/2668/2023.

Print Page

How to ascertain that contract labourer was direct employee?

 It is now well settled that if the industrial adjudicator finds that the contract between the principal employer and the contractor to be a sham, nominal or merely a camouflage to deny employment benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee by holding that the workman is the direct employee of the principal employer. Two of the well-recognized tests to find out whether the contract labourers are the direct employees of the principal employer are: (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the Industrial Court answered both questions in the affirmative and as a consequence held that the first Respondent is a direct employee of the Appellant.

19. The expression 'control and supervision' were further explained with reference to an earlier judgment of this Court as follows:

12. The expression "control and supervision" in the context of contract labour was explained by this Court in International Airport Authority of India v. International Air Cargo Workers' Union thus: (SCC p. 388, paras 38-39)

38. ...if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.

39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.

20. From this judgment, it is clear that test No. 1 is not met on the facts of this case as the contractor pays the workmen their wages. Secondly, the principal employer cannot be said to control and supervise the work of the employee merely because he directs the workmen of the contractor 'what to do' after the contractor assigns/allots the employee to the principal employer. This is precisely what paragraph 12 explains as being supervision and control of the principal employer that is secondary in nature, as such control is exercised only after such workman has been assigned to the principal employer to do a particular work.

21. We may hasten to add that this view of the law has been reiterated in 'Balwant Rai Saluja and Anr. v. Air India Limited and Others' [MANU/SC/0732/2014 : 2014(9) SCC 407], as follows:

65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia:

(i) who appoints the workers;

(ii) who pays the salary/remuneration;

(iii) who has the authority to dismiss;

(iv) who can take disciplinary action;

(v) whether there is continuity of service; and

(vi) extent of control and supervision i.e. whether there exists complete control and supervision.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1799-1800 of 2019 

Decided On: 20.02.2019

Bharat Heavy Electricals Ltd. Vs.  Mahendra Prasad Jakhmola and Ors.

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Vineet Saran, JJ.

Print Page

Whether benefits available at time of final adjudication should be extended to workman as per workman compensation Act?

Shri Gastgar, learned Counsel appearing for the

appellants, has relied upon the judgment of the Honourable
Apex Court in the case of New India Assurance Co.Ltd. Vs.
V.K.Neelkandan and others ( (1999) 2 SCC 256 ) to
support his contention that the benefit of increased limit of
deemed income of a workman was liable to be extended in the
case in hand. In view of the judgment of the Honourable Apex,
Court relied upon by the appellants, in the case of New India
Assurance Co.Ltd. Vs. V.K.Neelkandan and others (cited
supra), however, the interpretation as has been made by the
learned Commissioner that the increase in the deemed income
vide notification 31st May, 2010, has to be prospectively made
applicable, cannot be sustained has to be rejected. The
Honourable Apex Court in the judgment cited supra has held
that the Workmen's Compensation Act, being a Special
Legislation for the benefit of the labour, any benefit, if is
conferred on the workmen, and the said benefit is available on
the date when the case is finally adjudicated, the said benefit
should be extended to the workmen.
11. The facts in the case of New India Assurance
Co.Ltd. Vs. V.K.Neelkandan and others (cited supra), were
thus: the accident had taken place in the year 1981. As per
the law operating at the relevant time , the deemed limit for
the income of the workman was Rs.1,000/- per month. The

compensation in the said matter was, however, claimed stating
the wages of the deceased workman to be Rs.1800/- per
month, which were being actually received by the said
deceased workman. The compensation was, however, assessed
by the Commissioner under the Act, deeming the wages as
Rs.1,000/- per month. In the meanwhile, Section 4 of the Act
was amended in 1995 by Amendment Act (30 of 1995) whereunder
the deemed income was increased from Rs.1,000/- to
Rs.2,000/-. In the aforesaid background, the Honourable Apex
Court ruled that the benefit conferred on the workman available
on the date when the case is finally adjudicated was liable to be
extended to the workman. The Honourable Apex Court,
therefore, enhanced the amount of compensation by calculating
the same on the basis of the actual wages of Rs.8000/- being
drawn by the deceased workman.
           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3103 OF 2015
 Varsha Santosh Birajdar,

VERSUS
 Sujata Ashok Pokharkar,

CORAM: P.R.BORA, J.

Date of pronouncing judgment:  5/4/2016
Citation:2016(3) ALLMR362

Print Page

What are basic principles for determining backwages to be paid to workman?

Add caption

 Further, in General Manager, Haryana
Roadways v. Rudhan Singh [(2005)5 SCC
591], the three Judge Bench of this
Court considered the question whether
back wages should be awarded to the
workman in each and every case of
illegal retrenchment. The relevant
paragraph reads as under:
“There is no rule of thumb that in
every case where the Industrial
Tribunal gives a finding that the
termination of service was in
violation of Section 25-F of the Act,
entire back wages should be
awarded. A host of factors like the
manner and method of selection and
appointment i.e. whether after
proper advertisement of the vacancy
or inviting applications from the
employment exchange, nature of
appointment, namely, whether ad
hoc, short term, daily wage,
temporary or permanent in character,
any special qualification required for
the job and the like should be
weighed and balanced in taking a
decision regarding award of back
wages. One of the important factors,
which has to be taken into
consideration, is the length of
service, which the workman had
rendered with the employer. If the
workman has rendered a
considerable period of service and his
services are wrongfully terminated,
he may be awarded full or partial
back wages keeping in view the fact
that at his age and the qualification
possessed by him he may not be in a
position to get another employment.
However, where the total length of
service rendered by a workman is
very small, the award of back wages
for the complete period i.e. from the
date of termination till the date of
the award, which our experience
shows is often quite large, would be
wholly inappropriate.
Another important factor, which
requires to be taken into
consideration is the nature of
employment. A regular service of
permanent character cannot be:60:
compared to short or intermittent
daily- wage employment though it
may be for 240 days in a calendar

year.”

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 40 OF 2004
The Goa Urban Co-op. Bank Ltd.,
V e r s u s
Mr. Rui A. E. Ferreira
CORAM : F. M. REIS, J
DATE : 21st July, 2014
Citation;2015(7) ALLMR 388

Print Page

When an employee shall be treated as workman and not supervisor in an Industry?

Mr. Sardessai, learned Counsel appearing for the
Petitioners, has enumerated different departments where the
respondent no.1 was rendering services to advance his
contention that the respondent no.1 was conducting
supervisory functions. These functions highlighted by Mr.
Sardessai are essentially with regard to the performance of
surprise inspection of cash, checking if there are any
discrepancies, report recommend corrective actions and the
admission of the respondent no.1 that he observed that there
were several lapses. The learned counsel also pointed out
that in the maintenance of important registers, the
respondent no.1 was carrying out inspections and internal
audits and that he had admitted that in the process of
performing the duties in the internal audit department, he
had entrusted and had opportunity of conducting several
verifications. All these aspects have been taken note of by
the learned Tribunal to come to the conclusion that these
duties were only in the process of checking the accounts
which cannot be considered to be of supervisory in nature
and I find no perversity in these findings of the learnedTribunal. Mr. Sardessai, learned Counsel appearing for the
Petitioners, has also highlighted different aspects with regard
to the duties performed by the respondent no.1 to advance
his contention that the respondent no.1 had an independent
capacity to take decisions and/or was performing supervisory
functions. All these aspects have also been minutely dealt
with by the learned Tribunal in the impugned award and, as
such, I find that there is no error committed by the learned
tribunal to come to the conclusion that the respondent no. 1
was a 'workman' within the meaning of the Industrial

Disputes Act, 1947.

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 40 OF 2004
The Goa Urban Co-op. Bank Ltd.,
V e r s u s
Mr. Rui A. E. Ferreira
CORAM : F. M. REIS, J
DATE : 21st July, 2014
Citation;2015(7) ALLMR 388

Print Page

Whether a divorced wife is widow after death of husband?

A widow is a woman, as we
understand from the meaning of the term in its ordinary sense, whose
husband is dead and who has not married again. A man is husband of
a woman only as long as there is no snapping of matrimonial relations
by a divorce a vinculo or dissolution of marriage or death.

 In the case of Smt. Rambai Vs. Ramesh Kumar reported at
AIR 1996 M.P. 144 cited before me by learned Counsel for the
appellants, the meaning assigned to the word 'widow' in 'Words and
Phrases” Permanent Edition, Vol.45 page 141 has been approved by
the learned Single Judge of Madhya Pradesh High Court. The learned
Judge has held that, “Where husband and wife are divorced a vinculo,
the wife after the husband's death is not his 'widow' ....” The relevant
observations of the learned Judge are to be found in paragraph 12 and
same are reproduced thus;
“.......In 'Words and Phrases” Permanent Edition, Vol.45
page 141 under the heading 'divorced wife', the word
'widow' means a woman who has lost her husband by
death and has no application to a divorced woman.
Where husband and wife are divorced a vinculo, the wife
after the husband's death is not his 'widow' and entitled
to dower..”
 In view of the above, the argument of learned Counsel for
the respondent that respondent is a widow and dependant of the
deceased cannot be accepted and argument of learned Counsel for the
appellants in this regard needs to be upheld. I, therefore, find that in
the instant case, for the purpose of enquiry under the Act, 1923, the
respondent cannot be said to be enjoying the status of widow of
deceased Kishore. Once we find that so far as the enquiry under the

Act, 1923 is concerned, the respondent was not the widow of deceased
Kishore, she would be out of the scope and ambit of the definition of
the term, 'dependent' as given in Section 2(1)(d) of the Workmen's
Compensation Act, 1923, which describes, inter alia, a widow of a
deceased workman as his dependant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 544 OF 2013

Smt. Varsha Kishore Tode Vs  Smt. Vandana Kishore Tode

Citation; 2014(4) MHLJ 206 Bom
CORAM : S. B. SHUKRE, J.
DATED : JANUARY 09, 2014.

Print Page