Bombay High Court

The Manager Bedse Pulp Conversion ... vs Sau Hirabai Laxman Nikale ... on 13 April, 2016

Bench: P.R. Bora

                                         1                   FA NO.2837/2009

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                       BENCH AT AURANGABAD

                           FIRST APPEAL NO.2837 OF 2009




                                              
      The Manager,
      Bedse Pulp Conversion Industries 




                                             
      Pvt. Ltd.F-32, MIDC Area, 
      Chikalthana,Aurangabad.                            = APPELLANT

                       VERSUS




                                      
      1. Sau. Hirabai w/o Laxman Nikale (Nikalje),
         Age: 50 years, Occu: Household,
                             
      2. Laxman s/ Natha Nikale
         Age: 55 years, Occu: Labour,
                            
         Both R/o. Bhaigaon, Tq. Vaijapur,
         Dist. Aurangabad.
         At present R/o Galli No.8,
         Sanjay Nagar, Mukundwadi,
      

         Aurangabad.
   



      3. Smt. Swati Jagdish Nikale
         Age - 28 years, Occu. Nil
         R/o. C/o. Sumanbai Thorat,
         Galli No.14, Sanjay Nagar,





         Mukundwadi, Aurangabad.

      4. The Manager,
         Employees State Insurance Company,
         Branch Office
         Naregaon Road, MIDC





         Chikalthana, Aurangabad.        =   RESPONDENTS 
                                      -----
      Mrs.   Madhaveshwari   D.   Thube   -   Mhase,   Advocate   for 
      Appellant;

      Mr.VD Sonawane, Advocate for Respondent No.1;
      Mr.PM Hiwale, Advocate for  Resp. No.2
                                      -----




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                                           2                   FA NO.2837/2009

                                   CORAM :  P.R.BORA, J.

th DATE :

                                           13     April,2016.
                                                             




                                                
                                                         
      ORAL JUDGMENT




                                               
      1)               Heard  the   learned  counsel   appearing   for 

      the respective parties. 




                                      
      2)               The question raised by the appellant in

the present appeal is, - "whether it was open for

the Labour Court, which was also designated as

the commissioner for Workmen's Compensation, to

entertain an application filed by the legal heirs

of the deceased claiming compensation under the

provisions of the Workmen's Compensation Act,

1923, when the deceased was an `insured person'

under the provisions of Employees' State

Insurance Act, 1948?"

3) The appellant has challenged the

judgment and Award passed by the Labour Court,

Aurangabad in Application (WC) No.38/2002 on 26th

August, 2009. Respondent Nos.1 and 2 had filed

the aforesaid application before the Labour

3 FA NO.2837/2009

Court, Aurangabad, claiming compensation on

account of death of their son by name Jagdish,

during the course of his employment with the

present appellant. In the aforesaid application,

the present appellant had raised a specific

objection that the application so filed under the

provisions of the Workmen's Compensation Act, was

not maintainable in view of the Bar provided

under Section 53 of The Employees' State

Insurance Act, 1948 (for short, the ESI Act). It

was the contention of the present appellant in

his written statement that deceased Jagdish was

covered under the provisions of the ESI Act and

as such, the persons claiming to be his

dependents were having remedy to approach the

Employees' State Insurance authority and the

remedy of filing the application under the

Workmen's Compensation Act, was not available to

them.

4) The learned Counsel appearing for the

appellant submitted that the learned Labour Court

has not even considered the objection so raised

4 FA NO.2837/2009

by the present appellant in his written

statement, taking a specific plea that there was

a Bar under Section 53 of the ESI Act and the

application under the Workmen's Compensation was

not maintainable.

5) I have perused the impugned judgment.

The learned Labour Court though has recorded the

objection raised by the present appellant, as

about the maintainability of the application

under the Workman Compensation Act in view of the

bar under Section 53 of the E.S.I. Act, has not

dealt with the said issue and has not recorded

any finding thereon.

6) The learned Counsel for the appellant

has relied upon the judgment of the Hon'ble Apex

Court in the case of A. Trehan Vs. Associated

Electrical Agencies and Anr. - (1996) 4 SCC 255,

wherein it is held that in view of the clear

language of Section 53 of the ESI Act, the

insured or his dependents cannot claim any

5 FA NO.2837/2009

compensation under the provisions of the

Workmen's Compensation Act. The learned Counsel

has relied upon one more subsequent judgment of

the Hon'ble Apex Court in the case of Western

India Plywood Ltd. Vs. A.Ashokan - 1997 (7) SCC

638, wherein, relying on the judgment in the case

of A. Trehan (cited supra) the Apex Court has

reiterated the similar view.

7) The learned Counsel appearing for the

original claimants submitted that, having

considered the fact that the claimant had not

received any compensation on account of death of

their son, who had died during the course of his

employment, the learned Labour Court deemed it

appropriate to entertain the application filed by

the claimants under the provisions of the Workmen

Compensation Act, and as such, according to the

learned Counsel no interference is required in

the impugned Judgment and Award. The learned

Counsel however did not dispute that, Section 53

of the ESI Act provides a bar against receiving

or recovery of compensation or damages under

6 FA NO.2837/2009

any other law.

8) I have carefully considered the

submissions advanced on behalf of the learned

Counsel appearing for the respective parties. I

have also perused the impugned Judgment and

Award. As mentioned at the beginning of the

Judgment, the only question raised in the present

appeal is, - "whether it was open for the labour

Court, which was also designated as the

commissioner for Workmen's Compensation, to

entertain an application filed by the legal heirs

of the deceased claiming compensation under the

provisions of the Workmen's Compensation Act,

1923, when the deceased was an `insured person'

under the provisions of Employees' State

Insurance Act, 1948?"

9) It would be appropriate to reproduce

herein below the relevant provisions under the

ESI Act, more particularly Section 53 and 61 of

the said Act, which read thus:

7 FA NO.2837/2009

"53. Bar against receiving or recovery of compensation or damag-

es under any other law. - An insured person or his dependents

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 (8 of 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.]

"61. Bar of benefits under other

enactments.- When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar

benefit admissible under the provisions of any other enactment."

10) The plain reading of the aforesaid

provisions makes it clear that, the application

8 FA NO.2837/2009

so filed by parents of deceased Jagdish before

the Labour Court / Commissioner for Workmen

Compensation, invoking the provisions of the

Workmen Compensation Act, was not maintainable

and the learned Labour Court ought not have

entertained and adjudicated the said application.

11) The Hon'ble Apex Court in para 12 of its

Judgment in the case of A. Trehan Vs. Associated

Electrical Agencies and Anr. (cited supra) has

observed thus:

"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

9 FA NO.2837/2009

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.

12) It is not in dispute that the provisions

of ESI Act are applicable to the employees of the

appellant - company and deceased Jagdish was

`insured person' as defined under Section 2(14)

of the ESI Act.. As such, in view of the law

laid down by the Hon'ble Apex court, as above,

the application filed by the legal heirs of

deceased Jagdish before the Labour court under

the provisions of the Workmen's Compensation Act,

was not maintainable.

                                         10                   FA NO.2837/2009

      13)              The Bar created under Section 53 of the

ESI Act is not limited only to contractual

obligation, but covers every obligation to pay

compensation or damages under any law including

the Workmen's Compensation Act. Use of the

expression "any other law for the time being in

force or otherwise" clearly sets out the

intention of the Parliament that the `insured

person' or his dependadnts shall not entitled to

any claim in respect of an employment injury

beyond what is provided under ESI Act.

14) In the above circumstances, in no case,

the impugned Judgment and Award can be sustained

and deserves to be set aside.

15) The appellant-insurance company in its

written statement filed in the proceeding before

the Labour Court, had raised a specific plea that

provisions of ESI Act were applicable to its

employees. It was also submitted that the

incident of death of deceased Jagdish during the

course of his employment was immediately reported

11 FA NO.2837/2009

by the appellant company to ESI Corporation and

the Provident Fund authorities and further that

all required papers were submitted before the

said authorities so as to facilitate the payment

of compensation pension and other legal dues to

the legal heirs of deceased Jagdish. The

appellant company in its written statement had

also specifically stated that in view of the Bar

under Section 53 of the ESI Act, the application

so submitted by the legal heirs of deceased

Jagdish under the provisions of Workmen's

Compensation Act, was not maintainable. The

contentions raised, as aforesaid, by the

appellant company have been taken note of by the

learned Labour court in paras 3, 4 and 5 of the

impugned Judgment. The Labour court, however, did

not seem to have considered the said objections

merely for the reason that after filing of the

written statement, the appellant did not turn up

before the court either to cross-examine the

applicants or to lead any evidence on its behalf.

                                         12                   FA NO.2837/2009

      16)              The approach of the learned Labour Court 




                                                                       
      referred   as   above   was   wholly   erroneous.     When

certain legal objections were raised and more

particularly as regards to the jurisdiction of

the said Court for entertaining the subject

application, it was incumbent upon the learned

Labour Court to at least read the provisions so

referred by the respondent in its written

statement. When it was specifically submitted

that, there was a bar under Section 53 of the ESI

Act against receiving or the recovery of

compensation or damages under any other law

except the ESI Act, the learned Labour Court was

expected to at least read the aforesaid provision

before delivering the Judgment. The learned

Labour Court, it seems, did not bother even to go

through the relevant provisions of E.S.I. Act,

which were referred in the written statement

filed by the respondent.

17) In fact, when certain objection was

raised by the respondent Company, the Labour

13 FA NO.2837/2009

Court ought to have framed a specific issue in

that regard. No such issue was admittedly

framed. That apart, in no case, the learned

Labour Court could have decided the matter

without going through and knowing the relevant

provisions under the ESI Act and more

particularly Sections 53 and 61 of the said Act.

The entire approach of the Labour Court, as has

been noticed, was very casual. Moreover, as

brought to my notice by the learned Counsel

appearing for the appellant Company, some of the

observations made by the learned Labour Court are

apparently contrary to the evidence on record.

18) In view of the fact that, the

application under the provisions of Workmen's

Compensation Act itself was not maintainable, the

Judgment and Award passed by the Labour Court

cannot be sustained and has to be quashed and set

aside. It is accordingly quashed and set aside.



      19)              It is however, clarified that, it would 





                                          14                    FA NO.2837/2009

be open for the claimants to avail appropriate

remedy under the provisions of ESI Act. If the

claimants approach the ESI authorities, the ESI

authorities shall entertain their request without

raising any objection as regards to the delay, if

any, occurred on their part in availing the

remedy under the provisions of ESI Act. It is

accordingly directed.

20) The amount deposited by the appellant

either before this Court or before the Labour

Court at Aurangabad shall be refunded to it.

21) The First Appeal stand disposed of in