Allahabad High Court
M/S Sagun Offset Private Ltd vs Sri Dharamveer Gaud And Another on 13 February, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - C No. - 21300 of 2019
Petitioner :- M/S Sagun Offset Private Ltd
Respondent :- Sri Dharamveer Gaud And Another
Counsel for Petitioner :- Jamal Ahmad Khan
Counsel for Respondent :- Rajesh Tewari,Shekhar Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Jamal Ahmad Khan, learned counsel for petitioner and Sri Shekhar Srivastava, Advocate for Respondent-1.
2. The question for consideration is that, a workman, who is registered under the provisions of Employees' State Insurance Act, 1948 (hereinafter referred to as "Act, 1948") can claim benefit of Workmen's Compensation Act, 1923 (Now Employees' Compensation Act, 1923) (hereinafter referred to as "Act, 1923") despite specific bar under Section 53 of Act, 1948, which states as follows:
"53. Bar against receiving or recovery of compensation or damages under any other law-An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act."
3. Learned counsel for Respondent-1 fairly cited two judgments, one by Coordinate Bench of this Court in M/s Shriram Investments Ltd. and another vs. Sukhdevi, 2033(3) All WC 2925, which in his favour and another by Supreme Court in A. Trehan vs. Associated Electrical Agencies and another (1996) 4 SCC 255, which is against him, wherein it is held that:
"12. In this background and context we have to consider the effect of the bar created by Section 53 of the ESI Act. Bar is against receiving or recovering any compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute as can be seen from the use of the words shall not be entitled to receive or recover, "whether from the employer of the insured person or from any other person", "any compensation or damages" and "under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise". The words "employed by the legislature" are clear an unequivocal. when such a bar is created in clear an express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation . That would amount to by-passing the bar and defeating the object of the provision. In view of the clear language of the Section we find no justification in interpreting or construing it as not taking away the right of the workman who is an insured person and an employee under the ESI Act to claim compensation under the Workmen's Compensation Act. We are of the opinion that the High Court was right in holding that in view the bar created by Section 53 the application for compensation filed by the appellant under the Workmen's Compensation Act was not maintainable."
4. In these circumstances the order impugned which is passed under Act, 1923 cannot survive as undisputedly petitioner is enrolled under the provisions of Act, 1948 and he can not take benefit of Act, 1923.
5. At this stage, learned counsel for Respondent-1, submits that Respondent-1 has suffered injury as he was admitted in hospital and paid huge amount towards medical expenses and in accident he has suffered 40% disability, therefore, as Rs. 2 lacs has been deposited by petitioner with Prescribed Authority under Act, 1923, some amount may be released in favour of Respondent-1 which will remain subject to outcome of proceedings initiated by Respondent-1 under Act, 1948.
6. Learned counsel for petitioner has appreciated the fairness shown by learned counsel for Respondent-1. He, however, submits that there is no procedure to recover said amount.
7. I have considered the above submissions and in the light of judgment passed by Supreme Court in A. Trehan (supra) the impugned order dated 08.05.2019 passed under Act, 1923 is set aside. However, considering medical expenses of Respondent-1 and his disability, this writ petition is disposed of with further direction to Prescribed Authority under Employees' State Insurance Act to release 50% of amount so deposited, in favour of Respondent-1, subject to undertaking that in case he does not file an application under the provisions of Act, 1948 within four weeks from today, he will return the amount to petitioner and with further direction that remaining amount alognwith accrued interest be released in favour of petitioner.
Order Date :- 13.2.2023
AK
