Which the appeal of the appellant under Section 30 of the Employees Compensation Act, 1923 (formerly known as the Workmen’s Compensation Act, 1923 – hereinafter referred to as the 1923 Act) against the order of the Workmen Compensation Commissioner (in short, “the Commissioner”) in W.C. Case No. 05 of 2010, has been dismissed. (Para 1)
He died on 23.04.2008 in an accident in the course of his employment. On his death, the first respondent along with other heirs of the deceased filed a claim petition under the 1923 Act for compensation by claiming, inter alia, that on the date of his death, the deceased was aged 25 years and getting monthly wages of Rs. 8,000/-. The claim was resisted by the appellants, inter-alia, on the ground that the deceased was part of the Armed Forces of the Union and, therefore, not a workman; hence, the claim petition under the 1923 Act is not maintainable. (Para 2)
The Commissioner found that the relationship of workman-employer between the deceased and the non-claimant was admitted to the non-claimant; the deceased died in an accident in the course of his employment; and the deceased being a “Railway Servant”, as per the provisions of Section 2(34) of the Railways Act, 1989 (in short, the 1989 Act), would be deemed to be a “workman” under Section 2(1)(n)(i) of the 1923 Act and, therefore, the claim petition was maintainable. (Para 3)
The thrust of the submissions before the High Court was that the definition of “workman” as per Section 2 (n) of the 1923 Act excludes any person working in the capacity of a member of the Armed Forces of the Union, therefore, since Section 3 of the Railway Protection Force Act, 1957 (in short, “the 1957 Act”) declared the RPF as an Armed Force of the Union, the deceased being a constable in the RPF would not be a workman within the meaning of section 2 (n) of the 1923 Act; hence, claim petition under the 1923 Act was not maintainable. (Para 4)
On behalf of the respondents, it was submitted that Section 2 (1) (n) (i) of the 1923 Act unequivocally states that workman means a “railway servant” as defined in Section 2(34) of the 1989 Act. Section 2 (34) of the 1989 Act, as amended with effect from 01.07.2004, provides that “railway servant” would include a member of the RPF appointed under clause (c) of sub-section (1) of Section 2 of the 1957 Act. Therefore, by virtue of Section 2(1)(n)(i) of the 1923 Act read with Section 2(34) of the 1989 Act, a constable of RPF would be deemed a workman for the purposes of the 1923 Act. (Para 12)
It was urged that by declaring a member of the RPF as a member of the armed forces of the Union, the legislative intent was not to exclude the applicability of the 1923 Act, inasmuch as Section 19 of the 1957 Act, which was simultaneously amended, though excludes the applicability of certain other Acts such as Payment of Wages Act, 1936, Industrial Disputes Act, 1947 and Factories Act, 1948, does not exclude the applicability of the 1923 Act. This clearly indicates that the legislative intent is not to exclude the applicability of the provisions of the 1923 Act on a member of the RPF by virtue of their inclusion in the definition of a “railway servant” (Para 15)
It was also submitted that by Workmen’s Compensation (Amendment) Act, 2009, with effect from 18.01.2010, the term “Workman” was substituted by the term “Employee” and, therefore, clause (n) of sub-section (1) of Section 2 of the 1923 Act, defining a “workman”, was omitted and new clause (dd), defining an “employee”, was inserted in sub-section (1) of Section 2 of the 1923 Act. Yet, despite having declared RPF as an armed force of the Union and a member of the RPF being included in the definition of a “railway servant”, with effect from 1.7.2004, the newly inserted clause (dd), defining an “employee”, takes no exception to it. Therefore, the legislative intent has never been to exclude a member of the RPF from the purview of the 1923 Act. (Para 16)
In a nutshell, the submission on behalf of the respondents is that the application before the Commissioner under the provisions of the 1923 Act was maintainable and it was rightly entertained and allowed, therefore, the appeal was justifiably dismissed. (Para 18)
Thus, to sustain a claim against an employer under the 1923 Act, there must be a workman-employer relationship; there must be a personal injury to the workman by an accident; and that accident must arise out of and in the course of his employment. (Para 51)
At the time of the accident in question, “workman” was defined by clause (n) of sub-section (1) of Section 2 of the 1923 Act. As per the then definition clause workman meant any one of the persons specified in sub clauses (i), (ia) and (ii) of clause (n) of sub-section (1) of Section 2 of the 1923 Act; but would not include any person working in the capacity of a member of the Armed Forces of the Union. (Para 54)
The definition of a “Railway Servant” as contained in Section 2 (34) of the 1989 Act was amended vide Act No.51 of 2003, with effect from 1.7.2004. By such amendment, notwithstanding that from 20.09.1985 the RPF was declared an armed force of the Union, the definition of a Railway Servant included a member of the RPF. Therefore, since a railway servant continued to be a workman as per Section 2(1)(n)(i) of the 1923 Act, the provisions of the 1923 Act would continue to apply to a member of the RPF as he does not belong to any of those categories specified in Schedule II of the 1923 Act. More so, when there is nothing in the Railways Act, either new or old, which may exclude the applicability of the 1923 Act on a railway servant. Rather, Section 128 of the 1989 Act makes it clear that right of any person to claim compensation under Section 124 or Section 124-A of the 1989 Act shall not affect the right of any such person to recover compensation payable under the 1923 Act. (Para 59)
We are of the considered view that despite declaring RPF as armed force of the Union, the legislative intent was not to take it out of the purview of the 1923 Act. (Para 61)
The answer to issue no.(ii) lies in Section 128 of the 1989 Act. According to which, notwithstanding the right to claim compensation under Section 124 or Section 124-A of the 1989 Act, the right of a person to claim compensation under the 1923 Act, or any other law for the time being in force, is specifically saved subject to the condition that he shall not be entitled to claim compensation more than once in respect of the same accident. (Para 62)
In the instant case, there is nothing to indicate that the respondents’ claim under the 1923 Act was made after receiving compensation for the same accident under any other Act or law. Hence, the application under the 1923 Act was not barred on account of there being an alternative remedy under the 1989 Act. Issue no.(ii) is decided accordingly (Para 63)
We hold that the claim set up by the respondents under the 1923 Act was maintainable. The appeal lacks merit and is accordingly dismissed. (Para 64)
SUPREME COURT OF INDIA
2023 STPL(Web) 297 SC
[2023 INSC 859]
Commanding Officer, Railway Protection Special Force, Mumbai Vs. Bhavnaben Dinshbhai Bhabhor & Others
Civil Appeal No. 3592 of 2019-Decided on 26-9-2023
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