The ManagementM/s.Jothi Calendering Mills42, VivekanantharNasianur Main RoadErode - 9... v. Perumal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.08.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.815 of 2002The ManagementM/s.Jothi Calendering Mills42, VivekanantharNasianur Main RoadErode - 9...AppellantVs.1) Perumal2) Employees State Insurance Corporation Ltd., Rep. by its Regional Director (Tamil Nadu and Pondicherry) 35, Sterling road, Chennai - 34...Respondents (2nd Respondent impleaded as per order dated 1.8.2008 in CMP.No.1092/2008)This Civil Miscellaneous Appeal is filed under Section 30 ofthe Workmen's Compensation Act, 1925 to set aside the order dated31.01.2002 (served on 07.03.2002) made in W.C.No.230 of 1999 onthe file of Commissioner for Workmen's compensation and DeputyCommissioner of Labour, Salem.For Appellant: Mr.N.ManoharanFor Respondents: Mr.D.Hariparanthaman (R1) Mrs.Jayakumari (ESI Corpn)J U D G M E N TC.M.P.No.1092/2002 is allowed vide separate order and theEmployee's State Insurance Corporation represented by its RegionalDirector (Tamil Nadu and Pondicherry), Chennai 600 034 isimpleaded as the second respondent.2. Heard the submissions made by Mr.N.Manoharan, learnedcounsel appearing on behalf of the appellant andMr.D.Hariparanthaman, learned counsel appearing on behalf of the https://hcservices.ecourts.gov.in/hcservices/ first respondent and Mrs.Jayakumari, learned counsel appearing onbehalf of the second respondent (newly impleaded party).3. The management of Jothi Calendering Mills, 42,Vivekananthar Salai, Nasianur Main Road, Erode - 9 has preferredthe Civil Miscellaneous Appeal under Section 30 of the Workmen'sCompensation Act, 1925, challenging the award passed by the DeputyCommissioner of Labour, Salem in his capacity as Commissioner forWorkmen's compensation on 31.01.2002 in W.C.No.230 of 1999directing the said management to pay a sum of Rs.48,801/- ascompensation for the employment injuries sustained by the firstrespondent herein in an accident that arose in the course of andout his employment under the appellant management on 16.02.1999.The award of the Commissioner for Workmen's Compensation ischallenged solely on the ground that the claim under the Workmen'sCompensation Act is not maintainable because, the employee, namelythe first respondent herein, at the relevant point of time wascovered by the provisions of the Employees' State Insurance Act,1948. The learned counsel for the appellant drawing the attentionof this court to Section 53 of the Employees' State Insurance Act,1948 contends that an employee to whom the provisions of theEmployees' State Insurance Act are applicable can make claim forthe benefits under the said act alone and is not entitled to claimcompensation under the Workmen's Compensation Act. 4. In support of his contention, the learned counsel for theappellant has cited a judgment of Madhya Pradesh High Courtbetween Pandu d/o Shri Uma charan Mishra & Others and DivisionalManager of M.P.State Road Transport Corporation & Others reportedin 1999-III-LLJ (Supp) 28, a judgment of a learned single of thiscourt in K.Hamza and another Vs. M/s.Emitici Engineering Limited,Post Box No.1, Ennore Thermal Power Station, Madras 600 057reported in 2000 (IV) CTC 614 and a judgment of the Hon'bleSupreme Court in A.Trehan V. M/s.Associated Electrical Agenciesand another. 5. In all the above cited judgments it has been clearly heldthat Section 53 of the Employees' State Insurance Act provides atotal bar to make a claim under the Workmen's Compensation Act.The learned counsel for the first respondent/employee wouldcontend that since contribution to the ESI Corporation was notpaid during the relevant period for the first respondent/employee,he could not get the benefits under the ESI Act and hence itshould be held that he is not barred from making a claim under theWorkmen's Compensation Act. The judgment of the Hon'ble SupremeCourt, cited supra, is the answer to the said contention raised bythe learned counsel for the first respondent. The relevantportions of the judgment of the Supreme Court in which Section 53of the ESI Act before amendment and after amendment has also beenextracted is reproduced hereunder:- https://hcservices.ecourts.gov.in/hcservices/ " Two other provisions in the ESI Act to which it isnecessary to refer are Sections 53 and 61. The presentSection 53 was substituted by Act No.44 of 1960 with effectfrom 28th January, 1968. Section 61 has been there in the Actsince it came into force. It provides that when a person isentitled to any of the benefits provided by the ESI Act heshall not be entitled to receive any similar benefitsadmissible under the provisions of any other enactment.Thus, by enacting Section 61, the Legislature has created abar against receiving similar benefits under the enactments.Section 53 before its amendment read as under:"53. Disablement and dependent's benefits:- When aninsured person is or his dependents are entitled toreceive or recover, whether from the employer of theinsured person or from any other person, anycompensation or damages under the Workmen's CompensationAct, 1923, or otherwise, in respect of an employmentinjury sustained by the insured person as are employeeunder this Act, then the following provisions shallapply, namely:-(i) The insured person shall, in lieu of suchcompensation or damages, receive the disablement benefitprovided by this Act, (but subject otherwise to theconditions specified in the Workmen's Compensation Act,1923) from the Corporation and not from any employer orother person.(ii) to (iv)(v) Save as modified by this Act, the obligationsand liabilities imposed on an employer by the Workmen'scompensation Act, 1923, shall continue apply to him."9. Experience of the administration of the ESI Act haddisclosed certain difficulties in its working. It was,therefore, further amended in 1966. Along with otheramendments made in the ESI Act, the Legislature substitutedpresent Section 53 which read as under:"Section 53. Bar against receiving or recovery ofcompensation or damage under any other law. - Aninsured person or his dependents shall not be entitledto receive or recover, whether from the employer of theinsurer person or from any other person, anycompensation or damages under the Workmen's CompensationAct, 1923 (8 of 1923), or any other law for the timebeing in force or otherwise, in respect of an employmentinjury, sustained by the insured person as an employeesunder this Act." https://hcservices.ecourts.gov.in/hcservices/

10. The Workmen's Compensation Act was enacted by theLegislature in 1923 with a view of provide for the payment bycertain classes of employers to their workmen compensationfor injury by accident. Section 3(1) of the Act providesthat if personal injury is caused to a workman by accidentarising out of and in the course of his employment, hisemployer shall be liable to pay compensation in accordancewith the provisions contained in that Act. Under Section 2(1)(c) word compensation is defined to mean compensation asprovided for by the Act. The definition of the workman underthe Act is as under:"Workman" means any person (other than a person whoseemployment is of a casual nature and who is employedotherwise than for the purposes of the employer's trade orbusiness) who is -(i) .......(ii) employed in any such capacity as is specified inSchedule II, whether the contract of employment was madebefore or after the passing of this Act and whether suchcontract is expressed implied, oral or in writing; but doesnot include any person working in the capacity of a member ofthe Armed Forces of the Union; and any reference to a workmanwho has been injured shall, where the workman is deadincludes a reference to his dependents or any of them."11. A comparison of the relevant provisions of the twoActs makes it clear that both the Act provide forcompensation to a workman/employee for personal injury causedto him by accident arising out of and in the course of hisemployment. The ESI is a later Act and has a wider coverage.It is more comprehensive. It also provides for morecompensation than what a workman would get under theWorkmen's Compensation Act. The benefits which an employeecan get under the ESI Act are more substantial than thebenefits which he can get under the Workmen's CompensationAct. The only disadvantage, if at all it can be called adisadvantage, is that he will get compensation under the ESIAct by way of periodical payments and not in a lump sum asunder the Workmen's Compensation Act. If the Legislature inits wisdom thought it better to provide for periodicalpayments rather than lump sum compensation its wisdom cannotbe doubted. Even if it is assumed that in this behalf it wasopen to the Legislature to take away or modify that right.While enacting the ESI Act the intention of the Legislaturecould not have been to create another remedy and a forum forclaiming compensation for an injury received by the employeeby accident arising out and and in the course of hisemployment. https://hcservices.ecourts.gov.in/hcservices/

12. In this background and context, we have to considerthe effect the bar created by Section 53 of the ESI Act. Baris against receiving or recovering any compensation ordamages under the Workmen's Compensation Act or any other lawfor the time being in force or otherwise in respect of anemployment injury. The bar is absolute as can be seen fromthe use of the words shall not be entitled to receive orrecover, "whether from the employer of the insured person orfrom any other person". "any compensation or damages" and"under the Workmen's Compensation Act, 1923 (8 of 1923), orany other law for the time being in force or otherwise". Thewords employed by the legislature" are clear and unequivocal.When such a bar is created in clear and express terms, itwould neither be permissible nor proper to infer a differentintention by referring to the previous history of thelegislation. That would amount to bypassing the bar anddefeating the object of the provision. IN view of the clearlanguage of the Section, we find no justification ininterpreting or construing it as not taking away the right ofworkman who is an insured person and an employee under theESI Act to claim compensation under the Workmen'sCompensation Act. We are of the opinion that the High Courtwas right in holding that in view of the bar created bySection 53, the application for compensation filed by theappellant under the Workmen's Compensation Act was notmaintainable."6. In yet another judgment of the Hon'ble Supreme Courtbetween Bharaqgath Engineering and R.Ranganayaki and Another,reported in 2003-I-LLJ 558, the Hon'ble Supreme Court explainedthe term insured person as found in Section 2(14) of the ESI Actand held that the payment or non-payment of contribution inrespect of the particular employee was inconsequential. TheHon'ble Supreme Court has also held that insured person is aperson who is or was an employee in respect of whom contributionsare or were payable under the Act and who is, by reason thereof,entitled to any of the benefits provided by the act. It has alsobeen observed that the crucial expression in Section 2(14) of theAct was "are or were payable" will mean that it is the obligationof the employer to pay the contribution from the date ofapplication of E.S.I.Act to the factory or the establishment andthat benefits are to be conferred on the employees from the datewhen the contribution becomes payable. 7. The contention of the appellant herein that the industrialestablishment concerned in this appeal was one covered by theprovisions of the ESI Act has not been disputed by the ESICorporation (the second respondent herein). It is not the case ofeither the first respondent or the ESI Corporation that the firstrespondent was an exempted employee or a person who did not comein the definition of an employee under the Employees' State https://hcservices.ecourts.gov.in/hcservices/ Insurance Act, at the relevant point of time, namely when theaccident occurred. The above said observation of the Hon'bleSupreme Court will be enough to accept the contention of thelearned counsel for the appellant and reject the contention of thelearned counsel for the first respondent.8. Under these circumstances, this court accepts thecontention of the learned counsel for the appellant that the firstrespondent was an insured employee and hence he could claimbenefits under the ESI Act alone and not under the Workmen'sCompensation Act. 9. In view of the above, the appeal succeeds and the award ofthe Commissioner for Workmen's Compensation dated 31.01.2002 madein W.C.No.230 of 1999 is hereby set aside. There shall be noorder as to costs. However, it is made clear that the firstrespondent shall be entitled to claim the benefits under the ESIAct from the second respondent.10. It is brought to the notice of this court that theappellant deposited the entire amount awarded as compensation bythe Commissioner for Workmen's Compensation and the firstrespondent was allowed to withdraw 25,000/- out of the saidamount. The appellant is hereby permitted to withdraw the balanceamount. The first respondent shall refund a sum of Rs.25,000/-withdrawn by him from the amount deposited by the appellant hereinwithin a period of three months from today. The appellantmanagement shall submit a claim form to the ESI Corporation withrelevant documents within a period of two weeks from today and theESI Corporation shall consider the same and dispose of the same inaccordance with law within a period of two months thereafter.ssr Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Commissioner for Workmen's compensation and Deputy Commissioner of Labour, Salem.1 cc to Mr.N.Manoharan, Advocate, SR.423521 cc to Mr.D.Hariparanthaman, Advocate, SR.421191 cc to Mr.S.Jayakumar, Advocate, SR.42619KA (CO)dv/17.9.C.M.A.No.815 of 2002