# Seema Devi v. Vimal Jain & Anr

- **Citation:** (2024) 11 ILRA 448
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-21
- **Case number:** First Appeal From Order No. 1596 of 2022
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/seema-devi-v-vimal-jain-anr-54658
- **Pages:** 6

## Headnote

Civil law-- first appeal from order has
been filed on behalf of claimant-appellant-
Section
30(1)(a)
of
Employees
Compensation Act, 1923- Sections 2(dd) &
3 - Definition of 'employee' - Casual
labour
-
Death
during
course
of
employment
-
Worker
engaged
in
painting work on third floor -person
engaged in repair/painting of multi-storey
building
falls
under
Schedule
II
-
Rejection of claim on ground of lack of
employee-employer
relationship
erroneous -painting work is included
within meaning of 'repair' - Appeal
allowed, matter remanded. (Paras 10 to
15)
HELD:
It is admitted fact that the deceased had
received grievous injuries on fateful day
31.03.2015 while working as a painter at the
11 All. Seema Devi Vs. Vimal Jain & Anr.
449
building of respondent no.1. It is also admitted
that the deceased fell down from third storey of
building
while
he
was
engaged
in
repairing/painting
work.
The
Employees
Compensation Commissioner itself has recorded
the finding after considering the evidence
adduced by the parties that the deceased was
engaged for white washing and painting work
on fateful day i.e. 31.03.2015 and fell down
from third storey and had received grievous
injuries and died on account of injuries received
by him. The claim petition was dismissed merely
on the ground that the engagement of deceased
was purely casual in nature and there was no
employee-employer relation. (Para 10)

From the evidence adduced by the parties, it is
apparent that the deceased was engaged for
repairing/painting work at the house of opposite
party no.1 on 31.03.2015 and fell down from
third floor and had received injuries and died on
account of injuries received by him. The
deceased is an employee under the ambit of
Employees Compensation Act. The Employees
Compensation Commissioner has erred
in
dismissing the claim petition holding that there
was no employeeemployer relation and claim
petition was not maintainable, whereas from the
definition clause of employee it is apparent that
the deceased was working as an employee and
had received injuries during the course of his
employment. The fining recorded by the
Employees
compensation
Commissioner,
in
rejecting the claim petition is perverse and
against the law. (Para 15)

Appeal allowed. (E-14)

List of Cases cited:

Nadirsha Hormusji Sidhwa Vs Krishnabai Bala &
anr. reported in A.I.R. 1936 Bombay 199

## Text

448 INDIAN LAW REPORTS ALLAHABAD SERIES
benefit. When all the accused persons have
been found guilty of committing the same
offences, granting benefit of Section 4(1) of
the Probation of Offenders Act, 1958 to
one of them and denying the same benefit
to the revisionists "keeping in view the
nature of the offence" appears to be
unreasonable.

19. As the aforesaid unreasonableness
in the impugned order is apparent on the
face of the impugned order itself, it does
not need examination of the entire record of
the trial Court. Therefore, this revision is
being decided without calling for the record
of the trial Court.

20. In view of the aforesaid facts, this
Court is of the considered view that the
Trial Court's order dated 08.12.2022 to the
extent that it denies the benefit of Probation
of Offenders Act, 1958 to the revisionists,
is unsustainable in law. The other findings
recorded in the impugned order have not
been challenged.

21. Accordingly, the revision is
allowed in part. The judgment and order
dated 08.12.2022, passed by the learned
Civil Judge (J.D.)/F.T.C. - I Gonda in Case
No.180560 of 2018 arising out of Case
Crime No.45 of 2018 under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 of
Dowry Prohibition Act, Police Station
Wazirganj, District Gonda is modified to
the extent it denies the benefit of Section
4(1) of Probation of Offenders Act, 1958 to
the revisionists and it is provided that in
case the revisionists appear before the trial
Court and furnish personal bonds and two
sureties for their appearance to receive
sentence of one year as and when called
upon and in the meantime to keep the peace
and be of good behavior, the Court shall
release them on probation of good conduct.
The revisionists shall pay the amount of
fine imposed by the trial Court.

22. In case the revisionists fail to
observe
the
aforesaid
condition
of
furnishing a personal bond and two
sureties, the benefit of this order shall not
be available to them.
----------
(2024) 11 ILRA 448
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2024

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appeal From Order No. 1596 of 2022

Seema Devi ...Appellant
Versus
Vimal Jain & Anr. ...Respondents

Counsel for the Appellant:
Shekhar Srivastava

Counsel for the Respondents:
Ravindra Prakash Srivastava, Yogesh Kumar
Mishra

Civil law-- first appeal from order has
been filed on behalf of claimant-appellant-
Section
30(1)(a)
of
Employees
Compensation Act, 1923- Sections 2(dd) &
3 - Definition of 'employee' - Casual
labour
-
Death
during
course
of
employment
-
Worker
engaged
in
painting work on third floor -person
engaged in repair/painting of multi-storey
building
falls
under
Schedule
II
-
Rejection of claim on ground of lack of
employee-employer
relationship
erroneous -painting work is included
within meaning of 'repair' - Appeal
allowed, matter remanded. (Paras 10 to
15)
HELD:
It is admitted fact that the deceased had
received grievous injuries on fateful day
31.03.2015 while working as a painter at the
11 All. Seema Devi Vs. Vimal Jain & Anr.
449
building of respondent no.1. It is also admitted
that the deceased fell down from third storey of
building
while
he
was
engaged
in
repairing/painting
work.
The
Employees
Compensation Commissioner itself has recorded
the finding after considering the evidence
adduced by the parties that the deceased was
engaged for white washing and painting work
on fateful day i.e. 31.03.2015 and fell down
from third storey and had received grievous
injuries and died on account of injuries received
by him. The claim petition was dismissed merely
on the ground that the engagement of deceased
was purely casual in nature and there was no
employee-employer relation. (Para 10)

From the evidence adduced by the parties, it is
apparent that the deceased was engaged for
repairing/painting work at the house of opposite
party no.1 on 31.03.2015 and fell down from
third floor and had received injuries and died on
account of injuries received by him. The
deceased is an employee under the ambit of
Employees Compensation Act. The Employees
Compensation Commissioner has erred
in
dismissing the claim petition holding that there
was no employeeemployer relation and claim
petition was not maintainable, whereas from the
definition clause of employee it is apparent that
the deceased was working as an employee and
had received injuries during the course of his
employment. The fining recorded by the
Employees
compensation
Commissioner,
in
rejecting the claim petition is perverse and
against the law. (Para 15)

Appeal allowed. (E-14)

List of Cases cited:

Nadirsha Hormusji Sidhwa Vs Krishnabai Bala &
anr. reported in A.I.R. 1936 Bombay 199

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. This first appeal from order has been
filed on behalf of claimant-appellant under
Section 30(1)(a) of Employees Compensation
Act, 1923 against the judgement and order
dated 18.05.2022 passed by Employees
Compensation
Commissioner/
Deputy
Labour Commissioner, U.P., Ghaziabad
Region, Ghaziabad in E.C.A. Case No.- 164
of 2015 (Smt. Seema Devi Vs. Sri Vimal Jain
and another) by which claim petition filed by
claimant-appellant was dismissed.

2. Heard Sri Shekhar Srivastava,
learned counsel for the appellant and Sri
Yogesh Kumar Mishra, learned counsel
appearing on behalf of respondent no. 2. No
one is present on behalf of respondent no.1 in
spite of service of notice.

3. Brief facts of the case are that the
claimant had filed claim petition under
Section 3 of Employees Compensation Act,
1923
claiming
compensation
of
Rs.
7,68,560/- along with 12% interest on
account of death of her husband namely late
Sri Mahendra S/O Dhruva @ Dhroop Singh,
who died on 31.03.2015 while working at site
no.- C-130, Surya Nagar, Ghaziabad. It was
the case of claimant before the Employees
Compensation
Commissioner
that
the
deceased was an employee of opposite party
no.2 for the last ten years on the monthly
wages of Rs. 9,100/- per month. The opposite
party no.2/employer was a contractor, got the
contract for wall repairing and painting work
from opposite party no.1. The deceased was
working on 31.03.2015 at site no.- C-130,
Surya Nagar, Ghaziabad belonging to
opposite party no.1 on the direction of
opposite party no.2. During the course of
employment on 31.03.2015 the deceased fell
down from third floor of the building and
have received grievous injuries and died on
20.04.2015 on account of injuries received by
him. The death was occurred arising out and
in the course of his employment.

4. The opposite party nos. 1 and 2
put their appearance before the authority
below and filed separate written statements
denying the claim allegations. It was the
450 INDIAN LAW REPORTS ALLAHABAD SERIES
case of defendant-opposite party no.1 that
the deceased was never engaged by him
and there was no relation of employeeemployer between deceased and opposite
party no.1. The claim petition against
opposite party no.1 is not maintainable and
is liable to be dismissed.

5. The opposite party no.2 had also
contested the claim petition by filing his
written
statement
denying
the
claim
allegations.
The
employment
of
the
deceased was denied, but it was admitted
that the deceased was engaged for painting
work on casual basis at the site of opposite
party no.1. It is also admitted that he was
also engaged for painting work by opposite
party no.1 and while performing painting
work the deceased fell down and received
grievous injuries and died on account of
those injuries.

6. The claimant had appeared
before the authority concerned as claimantwitness
and
had
also
produced
documentary evidence in support of her
case. The defendant no.2 was appeared as
defendant-witness.
The
Employees
Compensation
Commissioner
without
framing issued of determination had
decided the claim petition holding that the
deceased was engaged for repairing and
white washing on casual basis and there
was no relation of master and servant and
the claimant is not entitled for any
compensation
under
the
Employees
Compensation Act.

7. It is submitted by learned
counsel for the appellant that the claimant
had fully proved her case by producing
documentary as well as oral evidence
regarding employment of the deceased as
painter and death during the course of his
employment. The defendant no.2 who was
contractor had also admitted that the
deceased was engaged for painting work
and had received injuries in the incident on
31.03.2015 and died on account of injuries
received by him on 20.04.2015. It is further
submitted
that
the
Employees
Compensation
Commissioner,
after
considering evidence adduced by the
parties has accepted the employment of the
deceased as casual worker on daily wages,
but had rejected the claim petition as it is
not maintainable under the Employees
Compensation
Act.
The
Employees
Compensation Commissioner had also
erred in rejecting the claim petition holding
that the claimant had failed to prove the
employment of the deceased and the
deceased was not a permanent employee
but was engaged for repairing and painting
work on casual basis.

8. On the other hand, learned
counsel appearing on behalf of respondent
no.2
submits
that
the
Employees
Compensation Commissioner has recorded
the finding that there was no relation of
employee-employer and the claimant had
failed to prove the employment of the
deceased. The Employees Compensation
Commissioner has rightly dismissed the
claim petition and there is no illegality in
any manner. No ground for interference is
made out. The appeal is devoid of merits
and is liable to be dismissed.

9.

Considered
the
rival
submissions of learned counsel for the
parties and perused the record.

10. It is admitted fact that the
deceased had received grievous injuries on
fateful day 31.03.2015 while working as a
painter at the building of respondent no.1.
It is also admitted that the deceased fell
down from third storey of building while he
11 All. Seema Devi Vs. Vimal Jain & Anr.
451
was engaged in repairing/painting work.
The
Employees
Compensation
Commissioner itself has recorded the
finding after considering the evidence
adduced by the parties that the deceased
was engaged for white washing and
painting
work
on
fateful
day
i.e.
31.03.2015 and fell down from third storey
and had received grievous injuries and died
on account of injuries received by him. The
claim petition was dismissed merely on the
ground that the engagement of deceased
was purely casual in nature and there was
no employee-employer relation.

11. The Employee is defined
under
Section
2(dd)
of
Employees
Compensation Act, 1923 which is quoted
hereinbelow:-

2(dd) "employee" means
a person, who is-:
"(i).
(ii).
(iii). employed in any such
capacity as is specified in Schedule
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 any
employee who has been injured
shall, where the employee is dead,
include
a
reference
to
his
dependants or any of them;"

12. From the perusal of definition
of employee, it is apparent that any person
in any capacity, which is specified in
Schedule II is an employee under the
Employees Compensation Act.
13. The relevant portion of para
(viii) of Second Schedule is quoted
hereinbelow:-

"(viii) employed in the
construction, maintenance, repair
or demolition of -
(a) any building which is
designed to be or is or has been
more than one storey in height
above the ground or twelve feet or
more from the ground level to the
apex of the roof; or
(b)
any
dam
or
embankment which is twelve feet or
more in height from its lowest to its
highest point; or
(c) any road, bridge, tunnel
or canal; or
(d) any wharf, quay, seawall
or
other
marine
work
including any moorings of ships;
or"

14. From the bare perusal of
definition of employee it is very much clear
that any person engaged in construction,
maintenance, repairing or demolition of
any building, which is more than one story
in height above the ground is treated as
employee. In the present case, it is admitted
fact that the deceased was engaged for
repairing/painting work and was fell down
from third story. The Hon'ble Bombay High
Court in the case of Nadirsha Hormusji
Sidhwa Vs. Krishnabai Bala and another
reported in A.I.R. 1936 Bombay 199 has
held that the painting work of house
include repairing of house. The relevant
paragraph is quoted hereinbelow:-

"In regard to the third
question, whether the painting of
the house, which was the work on
which the deceased was engaged,
452 INDIAN LAW REPORTS ALLAHABAD SERIES
was " repair " within the meaning
of Clause (viii) of the second
schedule,
the
learned
Commissioner held that it was, and
I think there was clearly evidence
to support that finding. In so far as
the
question
involves
the
construction of the Act and the
schedule, it is one of law, and I
entirely agree with the view of the
learned Commissioner. I should say
that in normal cases the paint of a
house
becomes
part
of
the
structure, and if it falls into
disrepair and has to be renewed, I
should say that the renewal forms
part of the repair of the house, or
building, and that view has now
been adopted in England : see
Dredge v. Conway, Jones & Co.
[1901] 2 K. B. 42 Mr. Bahadurji for
the appellant has argued that "
repair " does not include painting,
and in support of that argument he
relies on Clause (vii) of the second
schedule which is dealing with
ships,
and
includes
loading,
unloading, fuelling, constructing,
repairing, demolishing, cleaning,
or painting any ship. It is argued
that, inasmuch as the two words "
repairing " and " painting" are
included
in
that
clause
the
legislature must have considered
that repairing would not include
painting and that, therefore, the
word " repairs " in Sub-section
(viii) should also be held not to
include painting. I see no reason
for drawing that conclusion. The
legislature may have considered
that it was less clear in the case of
a ship, than in the case of a
building, that repairs would include
painting. For the reasons I have
given it seems to me to be clear that
repair must include renewal of the
paint of a building. We are not
dealing with a case, which might
possibly arise and in which at any
rate the point would be more
arguable, where a house is being
repainted simply because the owner
wishes to change its colour, and not
because the old paint is in a bad
state of repair. In the present case
the building was being repainted
because repainting was necessary.
In my opinion that clearly falls
within the word "repairs" in Subsection
(viii)
of
the
second
schedule, I think, therefore, that the
appeal must be dismissed with
costs."

15. From the evidence adduced by
the parties, it is apparent that the deceased
was engaged for repairing/painting work at
the house of opposite party no.1 on
31.03.2015 and fell down from third floor
and had received injuries and died on
account of injuries received by him. The
deceased is an employee under the ambit of
Employees
Compensation
Act.
The
Employees Compensation Commissioner
has erred in dismissing the claim petition
holding that there was no employeeemployer relation and claim petition was
not
maintainable,
whereas
from
the
definition clause of employee it is apparent
that the deceased was working as an
employee and had received injuries during
the course of his employment. The fining
recorded by the Employees compensation
Commissioner, in rejecting the claim
petition is perverse and against the law.

16. The first appeal from order is
allowed. The judgement and order dated
18.05.2022
passed
by
Employees
11 All. Er. Prabhu Dayal Agrawal & Ors. Vs. Joint Registrar Co-Operative Society & Anr.
453
Compensation
Commissioner/
Deputy
Labour Commissioner, U.P., Ghaziabad
Region, Ghaziabad in E.C.A. Case No.-
164 of 2015 (Smt. Seema Devi Vs. Sri
Vimal Jain and another), is set aside.

17. The matter is remanded back to
the concerned Employees Compensation
Commissioner to decide the claim petition
as fresh after affording opportunity of
hearing to the parties within a period of six
months from the date of production of
certified copy of this order, unless there is
any legal impediments.
----------
(2024) 11 ILRA 453
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

S.C.C. Revision No. 146 of 2023

Er. Prabhu Dayal Agrawal & Ors.
 ...Revisionists
Versus
Joint Registrar Co-Operative Society &
Anr. ...Opp. Parties

Counsel for the Revisionists:
Arvind Srivastava

Counsel for the Respondents:
Tej Bhanu Pandey

Civil Law -Transfer of Property Act, 1882Section 106- in the absence of any contract
between the parties or any local law usage to
the contrary- the tenancy is terminable upon
notice by the landlord in 15 days' advance-
notice would not be rendered invalid merely
because the period mentioned therein was short
-notice is a must to determine the tenancy and
once the tenancy has been determined, tenant
is liable to be evicted at the instance of the
landlord by instituting the suit-impugned order
set aside.
Revision allowed. (E-9)

List of Cases cited:

1. Smt. Anju Srivastava Vs Saurabh Birla &
anr.:2020(140) ALR 576

2. Waqf Allal Aulad/Waqf Alkhair Allahtala, Dr.
Ziaul Haq Vs Ist ADJ, Bijnor:2008 SCC OnLine
All 862

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Arvind Srivastava,
learned counsel for the petitioner and Sri
Rahul Malviya, learned Standing Counsel
for the State-respondent.

2. This revision application has
been directed against the judgment and
decree dated 16.12.2022 dismissing the suit
of the plaintiff.

3. As many as five issues were
framed. While the issue no.1 is qua damage
caused to the property by the tenant, issue
no.2 is qua non-application of the U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (Act No.13 of
1972). The most crucial issue is the third
issue as to whether the plaintiff has been
able to determine the tenancy by issuance
of notice. The entitlement of the plaintiff
for damages @ Rs.600/- per day as issue
no.4 and default in payment of rent by the
defendant-respondent being issue no.5 have
all been decided against the plaintiff.

4. The submission advanced by
learned counsel for the revision-applicant
is, when the trial court had determined
issue no.2 against the defendant-respondent
holding that Act No.13 of 1972 did not
apply, the Court was neither to see the
default in payment of arrears of rent, nor
could have seen into the niceties with