B M HABEEBULLAH MARICAR Vs. PERIASWAMI
HIGH COURT OF MADRAS
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(1.) ONE Arumugham was employed with the petitioner as a workman and, while on duty, died as a result of a fall from a tractor on the 29th of October, 1969. His mother filed a claim for Rs. 3,500 under the Workmen's Compensation Act (hereinafter referred to as the Act) before the Commissioner having jurisdiction, but the same was contested by the petitioner. During the tendency of that claim with the Commissioner, Arumugham's mother also died, whereafter her son Periaswami (respondent No. 1) and her two daughters Thailammal and anjalai (respondents Nos. 2 and 3 respectively) made a joint application to the commissioner praying that they be substituted for their mother as her legal representatives. That application was also contested by the petitioner but was accepted by the Commissioner with a finding that the right to the claim survived to the three respondents and that they were entitled to be substituted as legal representatives for their mother. The order of the Commissioner is dated the 30th of January 1972 and it is that order by which the petitioner feels aggrieved and which he has attacked under art. 226 of the Constitution of India with a prayer that it be quashed by a writ of certiorari.
(2.) THIS petition originally came up for hearing before me sitting singly and it was then contended in support of it that compensation payable under the Act could be claimed only by the injured workman or, in case of his death, by a body of persons described by the Act as 'dependants' and not by any other person, that admittedly none of the respondents was a dependant within the meaning of that expression as used in the Act and that the application made by the respondents before the Commissioner for substitution of their names as their mother's legal representative, was liable to be rejected. Reference in this connection was made to various provisions of the Act and specially to S. 9 which inter alia bars the devolution by operation of law of any lump sum or half-monthly payment payable under the Act to any person other than 'the workman' and to CL. (n) of sub-s. (1) of S. 2 which defines 'a workman' and states that any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. This contention was sought to be met by the dicta in various judgments more particularly the one in Ikkassintakath Abdurabiman v. Nadakkavu Nalikkal beeran Koya, 1938-1 LJ 571: (AIR 1938 Mad 402) to the effect that the later part of S. 9 according to which no lump sum or half-monthly payment shall pass to any person other than the workman, applies only to a workman who is in existence when the time for payment comes and not to one who died before compensation was awarded. As no reference to the definition of workman as appearing in the Act was made by the learned Judges who decided that case which, in my opinion, made all the difference to the determination of the point in dispute. I referred the case for decision to a Full Bench and that is how we are now seized of it.
(3.) SECTION 9 of the Act reads thus:
"save as provided by this Act, no lump sum or half-monthly payment payable under this Act shall in any way be capable of being assigned or charged or be liable to attachment or pass to any person other than the workman by operation of law, nor shall any claim be set off against the same. " In holding this section to be limited in application to the case of an existing workman, Venkataramana Rao and Abdur Rahman JJ. , who constituted the bench in the Madras case (at p. 403 of AIR) reasoned thus:
"section 9 also has no bearing on the facts of the particular case. The first part of that section provides that no lump sum or half-monthly payment payable under the Act is capable of being alienated or subjected to attachment. This is for the purpose of securing the benefit which the Workmen's Compensation Act is intended to provide for the workman or the dependants of the workman. This part of the section has therefore no application to the present case. The other part of the section in S. 9 is that no lump sum or half-monthly payment shall pass to any person other than the workman. This contemplates that the compensation is payable to a workman and cannot be claimed by any person by operation of law. Therefore, before that clause can come into operation, there must be an existing workman to whom it is payable and it has no application to a case where the workman died before the award of compensation. In the case of a workman who is alive and to whom the compensation is payable, the Act says that it must be paid to him and it should not go to any other person; for example, if he becomes an insolvent, his trustee in bankruptsy cannot claim the sum for the benefit of his creditors. This section therefore has no application to this case where the property has been allotted to Pathumma, the mother of the workman, who is a dependant under the Act. It has become her property; it has been recognised to be her property by the said compensation money being invested in the Post Office Savings Bank by the order dated 26th September, 1936. " With all respect to the learned Judges constituted the Bench, these observations do not appear to me to lay down the law correctly. In the first place, no reason is assigned by them for limiting the expression 'the workman' to a workman who is alive and for refusing to extend it to the case of one who is dead, even though transfer by inheritance is a recognised mode of devolution by operation of law. In my opinion, there is no valid reason for restricting the meaning of the expression 'pass to any person other than the workman by operation of law' which should be given its ordinary meaning viz. that in no case the sums mentioned shall stand transferred to a person other than the workman by reason of any legal provision. In other words, the expression is intended to shut out completely the passage of the right of compensation to persons other than the workman. In the second place, the assumption of the bench that the section could in terms apply only to a case of an existing workman appears to have been made by reason of the provisions of CL. (n) of sub-s. (1) of S. 2 not having been brought to its notice. That clause is extracted below:--
" 'workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is:-- (i) a railway servant as defined in S. 3 of the Indian railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in sch. II, or (ii) employed on monthly wages not exceeding one thousand rupees in any such capacity as is specified in Sch. II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing but does not include any person working in the capacity of a member of the armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. " The concluding part of the clause which states that any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them, is very significant. For all practical purposes it enlarge the definition of 'workman' so as to bring within its compass the dependants of the workman and when this part of the clause is brought to bear on the interpretation of S. 9, the relevant part of that section would surely be reasonable thus:
". . . . . . or pass by operation of law to any person except the workman (who bas been injured) and (where the workman is dead) his dependants". This means that if S. 9 is interpreted in the light of the definition in the said CL. (n); that section should apply not only to a workman who is alive and to whom compensation is payable but also to one who is dead and whose dependants are in a position to receive the compensation. The word 'workman' as occurring in s. 9 would thus mean the workman himself if he is alive and his dependants if he is not. The opinion to the contrary expressed in the Bench decision having been arrived at without a reference to that definition must be held to have been based on an erroneous reading of S. 9 which rules out the passing of compensation by succession to heirs of a deceased workman who are not his dependants. ;
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