Full Text
HIGH COURT OF DELHI
SH. RAJ KUMAR …..Petitioner
Through: Ms. Preeti Singh, Adv. Mr. Sunklan Porwal, Adv.
Ms. Saumya Dwivedi, Adv. Mr. Rishabh Munjal, Adv.
Through: Mr. Rishikesh Kumar, ASC- GNCTD with Ms. Sheenu Priya, Mr. Sudhir Kumar Shukla, Mr. Muhammad Zaid, Ms. RoshiniHaldhar& Mr. Sudhir, Advocates
Mr. R.K. Nain, and Mr. Chandan Prajapati, Advs. for R-3 to R-7.
SI Sachin, PS Gandhi Nagar.
JUDGMENT
1. This petition has been filed seeking stay on operation of the impugned recovery notice dated 2nd August, 2013 issued by respondent W.P.(C) 5099/ 2019 2/21 no.1 (Commissioner, Employees’ Compensation Act, 1932) initiating proceedingsfor recovery of Rs.7,88,240/-from the petitionerherein. The said recovery noticewas issued pursuantto an order dated 14th June, 2013 awarding respondent nos. 3 to 7 (“claimants”) a sum of Rs.7,88,240/- as compensation along with interest at the rate of 12% per annum from 10th August, 2008 till its realisation. Since the said amount was to be paid by M/s. PatliputraTransportAgency (respondentno.8), through itsowner (the petitioner) recovery proceedings wereinitiated for thesaid amount against the petitioner by way of the impugned notice.
2. Genesis of the matter is an application for compensation under Section 22 of the Employees’ Compensation Act, 1923 (“the Act”) preferredby theclaimants(beingthelegal heirs ofdeceased Mr. AkbarAli – namely Ms. Razia Begum, wifeofthedeceased and their minorchildren). As per theclaimants,Mr. AkbarAli was employedas a loader for loading and unloading on the vehicle owned by M/s. Patliputra Transport Agency (through Mr. Raj Kumar, the owner) arrayed as respondent no.8. On 11th August, 2008, deceased was injured in an accident during the course of employment, when he was mowed down by a vehicle. He was moved to Guru Teg Bahadur hospital by a PCR but succumbed to the injuries sustained by the time he reached there. Post mortem was conducted, dead body was handed over to the relatives of the deceased, and a First Information Report (“FIR”) No.194/2008 was registered on 12th August, 2008 at Police Station Gandhi Nagar, Delhi. At the time of death, the deceased was 30 years of age and drawingwages of Rs.6,500/-per month along with allowances. W.P.(C) 5099/ 2019 3/21
3. As per the final report under Section 173, Code of Criminal Procedure, 1973 (“Cr.P.C.”) filed by the Investigating Officer, the offendingvehicle remained untraced and therefore, no compensationcould be recovered either from its owner or driver of the insurance company. Accordingly, notice dated 13th February, 2013 was issued by the Commissioner under the Act (“Commissioner”)to respondent no. 8 ‘M/s. Patliputra Transport Agency) through Mr. Raj Kumar (owner)’ with a direction to appear and reply to the claim application of the claimants. Summons were issued from time to time, however, the same were not received/accepted by thepetitioner herein. As such, theCommissioner was left with no option but to proceed ex-parte.
4. The said application was disposed ofby order dated 14th June, 2013 by the Commissioner. Based on the statement of the claimants supported by copy of FIR, naksha mauka, final report, post mortem report, medical documents, progress report, identification card, and ration card, the Commissioner concluded that the deceased Mr. Akbar Ali had sustained fatalinjuries on 11th August, 2008duringthecourseofhis employmentand therefore, wasentitled todeath compensation. Wages ofthedeceased were taken as Rs.4,000/-per month in view of the restriction in Section 4 of the Act. The age of the deceased was 30 years at the time of the accident however, in theabsenceof supportingdocuments, it was taken as 35 years on the basis of the post mortem report. Compensation was therefore calculated with therelevantfactorof 197.06multiplied with Rs.4,000/-per month, totaling to Rs.7,88,240/- on which interest at the rate of 12 % per annum, as per Section 4A of the Act, from the date of accident was awarded. W.P.(C) 5099/ 2019 4/21
5. Two additional developments during the proceedings before this Court, need to be mentioned. First, considering the petitioner’s contention that he was merely an employee of M/s. Patliputra Transport Agency, time was accorded to him to place on record somedocumentin supportof this contention. However, nothing was filed in support of this contention as recorded in order dated 28th November, 2023. Second, reliance was placed on the Lower Court Record and the documents filed by the Investigating Authority, i.e., the police for ascertaining employment status of the deceased, considering there was confusion as to whether he was employed with the petitioner or not. Directions had been given to the Additional Standing Counsel appearing on behalf of the Government of State of NCT of Delhi (“ASC”) to file a detailed analysis of the relevant documents in this regard. An analysis report was filed by the ASC on 4th December, 2023. As per the said analysis, the following points were relevant: i. The petitioner had recorded a statement under Section 161, Cr.P.C. on 12th August, 2008; ii. The petitioner had stated that he was the owner of M/s. B R ParcelMovers andthedeceased used to workin his company; iii. The deceased was working with the agency of the petitioner was also corroborated by the statement of co-workers (one Shankarand Surender)recorded under section 161 Cr.P.C.; iv. Dead body identification and hand-over statement of the brother of the deceased (Asgar Ali) and son of the deceased (Bajid) was signed by the petitioner as witness. W.P.(C) 5099/ 2019 5/21 v. The accident took placeduringthecourseof theemployment also finds mention in the statements of the colleagues of the deceased viz Shankar and Surender Kumar, who were also employed along with the deceased, with the petitioner. Submissions on behalf of the Petitioner
6. Counsel for the petitioner assailed the impugned recovery notice which was issued to the petitioner and was duly received on 26th April, 2019, inter alia, on the following grounds: a. The recovery notice was actually issued to ‘M/s. Patliputra TransportAgency, ThroughSh. RajKumarOwner’. Thus, the name of the petitioner was vaguely mentioned as ‘owner’, without any particulars such as residential address, etc. b. He was neither the respondent in the claim petition nor was the owner of the said company. Thepetitionerwas merely an employee of M/s. Patliputra Transport Agency from June, 2012 to December, 2012. c. The said writ petition was maintainable despite objection of the respondent-claimants that an appeal ought to have been filed under Section 30 of the Act, and not this petition. The argument onmaintainabilityfocused ontheplenarypowersof this Court underArticle226 oftheConstitution ofIndia,1950 and reliancewas placed on decisionoftheApexCourt in U.P. State Spinning Company Ltd. v. R. S. Pandey and Anr. (2005) 8 SCC 264. In this regard, it was further stated that since the matter relatedto the very identity ofthe agency and the petitioner’s relationship with the same, question arises as W.P.(C) 5099/ 2019 6/21 to who would potentially be liable under the Act; thus, the petitioner had the right to approach this Court and invoke its writ jurisdiction. d. Reliance was further placed on a decision in Maharashtra ChessAssociation v. Union ofIndia& Ors., CivilAppealNo. 5654/2019 dated 29th July, 2019, wherein the Hon’ble SupremeCourt hasstated thatan alternateadequateremedyis merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. e. The claimantshad not been able to give concreteproofof the fact that the petitioner was indeed the employer of the deceased and only vague averments to that effect have been made. f. Reliance was placed on the statement of Surender Kumar as part of the analysis provided by the State, per which he and Akbar Ali worked as loader at M/s. B R Parcel Movers, Gandhi Nagar, Pushta Road, Delhi, thereby further corroborating that he was not employed at M/s. Patliputra Transport Agencyto whomtheimpugnedrecoverynoticewas originally issued. g. Even if it is assumed that the petitioner was the employer of the deceased, the death of the deceased had not occurred during the course of his employment since, as per the statement of the co-workers, he died in a road accident when he had gone for defecation. W.P.(C) 5099/ 2019 7/21 h. Reliance was placed on Malikarjuna G. Hiremath v. The Branch Manager, The Oriental Insurance Co. Ltd. & Anr. Civil Appeal No. 956/2009, on the issue whether an accident leading to death can be taken to havearisenduringthecourse of employment: “12. ThisCourtin ESICorpn. v. FrancisDeCosta (1996 (6) SCC 1) referred to, with approval, the decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig (1940 AC 190)wherein itwasheld:(AllER p. 563) "Nothing could besimpler than the words‘arising outof and in thecourseofthe employment’. Itis clear thatthere are two conditions to be fulfilled. What arises `in the course' of the employment is to be distinguished from what arises `out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment--that is, directly or indirectly engaged on what he is employed to do--gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified." …..
15. An accident may lead to death but that an accident had taken place must be proved. Only because a death hastaken place in course of employmentwill not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.” Submissions on behalf of the Respondents W.P.(C) 5099/ 2019 8/21
7. Refutingthe submissions ofpetitioner’scounsel, counsel appearing on behalf respondent nos. 3 to 7 stated as under: a. Reliance was placed on statements recorded under Section 161, Cr.P.C. by the petitioner Raj Kumar that the said deceased was working with him. b. Reliance was also placed on the statements ofthe co-workers Surender Kumar and Shankar who corroborated the fact of employment of the deceased with Raj Kumar. c. Reliance was further placed on thestatement ofidentification of the dead body where the petitioner was a witness, and has signed so. d. Maintainabilityofthe writ petition was objected to in light of the Section 30 of the Act providing for filing an appeal before the High Court on a substantivequestion oflaw. In this regard, reliance was placed on North East Karnataka Road Transport Corporation v. Sujatha Civil Appeal No.7470/2009 decided on 2nd November, 2018 and Naresh Kumar v. Sh. Jawahar Singh & Anr. LPA No. 80/2009. e. For the purpose of proving a claim (which deals with sufficiency of evidence), rules of evidence do not apply strictly. Reliance in this regard was placed on MackinnonMackenzie& Co. (P) Ltd. v. Ibrahim Mahmmed Issak (1969) 2 SCC 607 whereby it was held that theCommissionerhas to takeinference in a given caseand ifthescale is tilted towardsthe claimants,the samemust be allowed. Furthermore, a readingof Rule 41 of the Workmen’s Compensation Rules, 1924 shows that Order VI of W.P.(C) 5099/ 2019 9/21 the Code of Civil Procedure, 1908 (rules of pleadings) do not apply. f. Consideringthattheoffendingvehicle was untraceable as per thefinalreportofthepolice, theduty wasoftheemployerto pay compensation considering that the deceased was at work of loading and unloading with the agency of the petitioner. In this regard, reliance was placed on Pratap Narain Singh Deo v. Srinivas Sabata & Anr. (1976) 1 SCC 289 and Oriental Insurance Co. Ltd. vs Thankappan 2005SCC OnLineKer 278 and Manju Sarkar & Ors. v. Mabish Miah & Ors. (2014) 14 SCC 21. g. Further reliance was placed on Chiman Surakhia Vasava v. Ahmed Musa Ustad & Ors. 1986 SCC OnLineGuj[4], a decision of High Court of Gujarat where it was held that despite a potential confusion about the true employer, in the absence of contradictory evidence, it would lead to the conclusion that the worker was indeed employed by the truck owner. h. Therefore, counsel for the respondent contended that there was a clear connection between the petitioner and the deceased as established from the statements noted above, and strict rules of evidence are not applicableto provethattheaccident was out of and during the course of employment. Analysis
8. TheCourtheard detailed submissions bythepartiesandalsoperused thedocuments placed on record.Theassessment oftheCourt is as under. W.P.(C) 5099/ 2019 10/21 Statutory Appeal and Bar on Writ Jurisdiction of this Court
9. The first issue raised herein pertains to the maintainability of the present writpetition, in thata statutoryappealis providedby Section 30 of the Act. Without going into the merits of contentions of both the parties, this Court is of the opinion that the issue raised in this writ petition regardingtheidentityofthepetitionerdeserves to beaddressed. This is for thereason thathavingheardtheparties at considerablelength, andperused theLower Court Record, theanalysisreportmadeby the State, no purpose would be served to relegate the parties to a statutory appeal, which in any event, would alsolie to this Court itself. Thepetitionerhas challenged the recovery notice on the ground that the compensation awarded was not intended to besatisfied byhim andhehadno connectionwiththedeceased. Taking cue from the statement of the Hon’ble Supreme Court in Maharashtra Chess Association (supra), particularly on the paragraphs extracted hereunder, this Court does not wish to relegate the parties to a statutoryappeal, at this stage, in addition to thereasons mentioned above. The relevant portion of the decision in Maharashtra Chess Association (supra) is extracted as under: “18. …. The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether ornotto entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case..... W.P.(C) 5099/ 2019 11/21
21. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.” (emphasis supplied) Service of Summons and Knowledge of Proceedings before the Commissioner
10. The issue relating to service of summons would have some relationship with the determination of identity of the petitioner and the employment connect with the deceased. As recorded in order dated 14th June, 2013 by theCommissioner allowingtheclaim application,theinitial notice was received but signatures on receipt of the same were refused to be given. The second summons were issued on 21st March, 2013 through speed post and dasti and a report was filed on affidavit stating that when the representative went to the address specified, they met one Mr. Sushil, who gave his introductionas brother ofowner ofthecompany andrefused to receive the summons. The third summons were issued on 15th April, 2013 through a processserverwhoreported thatSh.Sanjay Kumar, worker, who was present at that time, received the summons but did not gave his signatures.
11. Counselfor therespondent drew attentionto thesummonsdated 15th April, 2013issued in thenameof M/s. PatliputraTransportAgency at9/23, Union Bank ATM wali gali, Shyam Block, Kailash Nagar, Delhi-110031 to Sh. Raj Kumar, owner,which was returned with thenoteof the process W.P.(C) 5099/ 2019 12/21 server dated 30th April, 2013 stating that at that address one Mr. Sanjay Kumar was found who received the said notice but refused to sign. Furthermore, attention has also been drawn to an affidavit of the process server dated 3rd April, 2013 statingthathehad goneon that day at4o’clock to the address of M/s. Patliputra Transport Agency where one Mr. Sushil was available and stated that he was the brother of owner of the company and after calling his lawyer, he refused to accept thesummons. Yet again, another affidavit by process server dated 14th February, 2013 was also placed on record which states thatat thataddress, oneMr. Sajjan wasfound who gavehis introductionas theemployeeofRajKumarandafter speaking to said Raj Kumar on the phone, he refused to receive the summons.
12. It is noted that the impugned recovery notice addressed to the Sub Divisional Magistrate (“SDM”), Gandhi Nagar is in the name of M/s. Patliputra Transport Agency through Sh. Raj Kumar, owner at Kailash Nagar /GandhiNagar address. Subsequently,thenotice issued bytheSDM dated 7th November, 2016 was also at the same address through Sh. Raj Kumar as owner and was to be served through the SHO, Police Station GandhiNagar. Thereportoftheserver fromP.S. GandhiNagarstated that there was no agency by the name of M/s. Patliputra Transport Agency at the given address.
13. In response to a direction by this Court dated 21st May, 2019 permittingthepetitioner to file an affidavit in defence regardingthe issues ofserviceofsummons andexistenceofan employer-employeerelationship between thepetitionerand thedeceased,theformer filed an affidavit dated 25th July, 2019.In thesaid affidavit, even thoughhementionedthat hewas neither theownerofthetransport vehicle, thecompanymentioned, norhad W.P.(C) 5099/ 2019 13/21 any relationship with the deceased, he does statethat his wife received the impugned recovery notice on 5th May, 2019.
14. Despite his denial regarding service of notices during the period of 2013 to 2019 and his averments about not being the owner of M/s. Patliputra Transport Agency and not having any connection with the deceased, it is imperativeto notethat firstly, the petitionerdoes admit that he was, at the very least, employed by M/s. Patliputra Transport Agency. The existenceof such an agency therefore, cannot bedoubted, even as per thepetitioner. Despitean opportunity provided bythis Court, thepetitioner did not provideany documentto show thathewas merely an employeeof thesaid agency. Hence, his connection with theagency cannotbedoubted; thevarious contentionsmadeby thepetitioner aremerely tocreatea smoke screen in order to avoid liability.
15. Secondly, at no point of time has the petitioner denied having recorded the statement under Section 161, Cr.P.C. or having signed as witness to the identification of the body of the deceased by his family, analysisofwhich was filed by theASC.Thus,petitioner’s denialregarding existence of an employer-employee relationship is a glaring contradiction to his statementsrecorded by thepolice and in fact, weakens his case. His connection withthedeceased is also thereforeclear and withoutanydoubt. In this regard, it may be appositeto notecertain observations madeby the Apex Courtin Khatri and Ors. v. State of Bihar (1981)2 SCC 493;same are extracted as under for ease of reference: “It bars the use of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded in a police diary or otherwise, butby the express terms of the Section this bar is applicable only W.P.(C) 5099/ 2019 14/21 where such statement is sought, to be used 'at any inquiry or trial in respect of any offence under investigation at the time when such statement was made'. If the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial butin respect of an offenceother than thatwhich wasunder investigation atthetime when such statementwasmade, the bar of Section 162 would not be attracted.”
16. Thirdly, the consistent denial to accept notice by one Sushil, who introduced himself as brother of owner of the company, but refused to receive summons, and one Sanjay, who did not deny the existence of Raj Kumar but refused to receive summons as well further shows that there were consistentattemptsmadeto evadeliability. In light of theseattempts, the contention of the petitioner that he was completely unaware of the proceedings going on before the Commissioner and he only found out about it when his wife received the impugned recovery notice cannot be accepted. Employer-EmployeeRelationship & ‘During Course of Employment’
17. The respondent’s contention that the deceased was employed with the petitioner is clearly established and corroborated by statements of coworkersSurender Kumar and Shanker statingthat AkbarAli, thedeceased, worked as a loader at M/s. B R Parcel Movers at Gandhi Nagar, Pushta, Delhi, at thegodown ofRaj Kumar.In fact, the petitioner’s own statement under section 161, Cr.P.C.also notes thathehas the godownsin thename and styleofM/s. B R ParcelMovers andamongstthosewho wereengaged for the purpose of loading and unloading in the godown, the deceased too was employed withhim since 7th August, 2008andalsothatheused to stay W.P.(C) 5099/ 2019 15/21 there. This date of 7th August, 2008 holds some significance as it is the same date as stated by co-worker Shankar (who, as per the petitioner, worked with him for the last about 2 years). These statements establish that the deceased was indeed working with the petitioner.
18. Thesinequa non ofestablishingan employer-employeerelationship, for the purpose of compensation of the Act, thus, stands satisfied in the present case. The fact that the employer is stated as Mr. Raj Kumar, does not exonerate him from theliability topaydeath compensation asprovided for in the Act. In this regard, reference may be made to the following decisions: (i)Manju Sarkar& Ors. v. Mabish Miah & Ors. (2014)14 SCC 21 – a caseinvolvinga claim under theWorkman’ Compensation Act, where a driver drove a truck and got down to make arrangements for the repair of the vehicle but met with the road accident, theHon’bleSupremeCourtdealtwithan issueofwhen is the duty of a worker within the course of employment or outside the scope of employment. In this regard, the Hon’ble Supreme Court noted the submissions as under:
(ii) Chiman Surakhia Vasava v. Ahmed Musa Ustad &
Ors. 1986 SCC OnLine Guj 4 – in a case under the Workman CompensationAct,involvingsomeconfusionaboutwho was the trueemployer, relatingto deathof a worker who wasengaged in lifting stones fromquarry tothetruck, theHigh CourtofGujarat observed as under: Thus a funny, but a very unfortunate, situation has arisen. Here is an employee without there being an employer. The person who took work from him and paid wages to him, either thetruck ownerorthe ownerofthequarry, hasfound it convenientto disown him. Both ofthem have been able to create a smoke screen of technicalities and the learned Commissioner has not been able to come out of the hideboundthinkinginfluenced bytheprovisionsof the Civil W.P.(C) 5099/ 2019 17/21 Procedure Code and the Evidence Act with which he is more familiar as Civil Judge, Senior Division. He oughtto have realised that the functions and duties of the Commissioner are radically different than that of a Civil Judge, Senior Division. It is unfortunate that the learned Commissioner who appears to have been obsessed by the proceduralrulesand technicalitiesofCivilProcedureCode and Evidence Act is not sufficiently aware about the underlying principles and object of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act). In the StatementofObjects and Reasonsarticulated at the time of moving the Bill which ultimately resulted in passing of the Act, it is stated: “.. The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, renders it advisablethatthey should beprotected, as far as possible, from hardship arising from accidents.” In the Statementof Objects and Reasonsit is further stated: “The generalprinciple is thatcompensation should ordinarilybe given to workmen who sustained personal injuries by accidents arising out of and in the course of their employment. Compensation will also be given in certain limited circumstances for disease … … At thesame time, on unanimous recommendation of the committee, provision has been made for Special Tribunals to deal cheaply and expeditiously with any disputes that may arise, and generally to assist the parties in a manner which is not possible for the ordinary Civil Courts.”.... In the instantcase, the workman hascategoricallystated in his deposition that he was employed by respondent 1 the truck owner and that he was being paid wagesby him. The workman hasfurtherstated thatfor the last two days before the accident he was working on the truck. In the instant case, the workman was not employed in a factory or farm W.P.(C) 5099/ 2019 18/21 belonging to one person. The very nature of the work to be performed by the workman forced him to move from one place to another, i.e., from quarry to the place where the stones were taken and again to quarry. When workmen are being employed in such type of employment, there may be some understanding between the owner of the quarry and the truck owner with regard to the payment of wages to be made to the workmen engaged in lifting stones and filling the same in the truck. It may be that some servant of the quarry owner or that of the truck owner might be making payment. Therefore, the workman is likely to be in doubtas to who is his real employer. But the learned Commissioner ought to have exercised his common sense. Just as there cannot be a child, either legitimate or illegitimate, without parents, there cannotbe an employee withoutan employer. In the instantcase, when theworkman deposed on oaththat he wasemployed byrespondent[1] thetruckownerand when there was no contrary evidence led either by the owner of the truck (respondent 1) or by the owner of the quarry (respondent 3) the inevitable inference to be drawn is that the workman was employed by respondent 1 the truck owner.
(iii) Oriental Insurance Co. Ltd. (supra). While dealing with a claim ofcompensationarisingfrom deathofa workerwho was driving a bus and after parking the same, went to a nearby stream wherehedied. TheHigh Court ofKerala noted as under:
19. Counsel for the respondent has, therefore, rightly relied upon these decisions that:firstly, advert to thelarger context ofthe Act and its intent, and secondly, refer to the elasticity/notional extension which needs to be attributed while considering death during the course of employment.
20. So far as the first aspect is concerned, the Act is a social security legislation providingcompensation topersons engaged in certain kinds of employment. Theneed for such socialsecurity arosekeepingin mind such individuals who depend upon their earnings to put food on the table and make ends meet. Being faced with humble earnings from the work done, these individuals tend to take risks at the workplace just to ensure continuity of income. As is the case at hand, the deceased was living in Delhi since the last 15-20 yearsworkingodd jobs supportinga family of 5 dependents who primarily reside far away in a village in Jammu. The Act was enacted to secure such workers and their dependents by providing reasonable quantum of compensation and saving them from being left to fend for themselves in the event of a catastrophe. For demise of the sole bread earner is nothing less than a catastrophe when means were already meagre.
21. As regards thesecond aspect, as a generalrule, compensation under the Act is granted to a workman when death occurs arising out of and during the course of employment. However, the pertinent question is whether the deceased continued to remain in the course of employment when he went to defecate and thereafter sustained injuries in the road accident on that fateful day. What constitutes as ‘during course of employment’ needs to bedeterminedafter carefulexamination ofthefacts and circumstances of each case. In the present case, the statement of W.P.(C) 5099/ 2019 21/21 Shankar recorded under Section 161, Cr.P.C. states that the deceased was with a few oftheir colleagues beforeheleft with a bottleofwaterto relieve himself. In the present case, the doctrine of notional extension would be applicable at both entry and exit of ‘time’ and ‘place’. Course of employmentdoes not startand end at the strokeof the clock, especially in line of work such as loading and unloading of transport vehicles. He was at theplace of his employment,wherehe also used to reside. That timeof night if he had to cross the road or go elsewhere in order to defecate, he would stillcontinueto bein therange andambitofhis workasan employee and the circumstance cannot be segregated and severed. The fact that the deceased left the godown to tend to a natural need will very well come within the purview ofsuch extension. Loading/unloadingofvehicles does takeplacein the latehours at night in thetransportindustryand thereis no reason to disbelievetheclaimantsin this regard. Therefore, thepetitioner’s contention that the deceased’s death occurred outside of course of employment as he had gone for defecation cannot be accepted.
22. Therefore, not only is the identity of the petitioner established but also the employer-employee relationship with the deceased is clear. Ergo, theliability under theAct would fallon him beingtheemployer despitehis attempts to create a smoke screen and opacity around the facts.
23. In view of the above, the present writ petitionstandsdismissed; the impugned recovery notice dated 2nd August, 2013 is hereby upheld.
24. Petition stands disposed of accordingly along with pending applications, if any.
25. Copy of the judgment be uploaded forthwith on the website of this Court. W.P.(C) 5099/ 2019 22/21 (ANISH DAYAL)
JUDGE DECEMBER 20, 2023