Dinesh Nanhaku Rathor vs The Manager, Varad Industires, ...
2016 Latest Caselaw 4534 Bom

Citation : 2016 Latest Caselaw 4534 Bom
Judgement Date : 8 August, 2016

Bombay High Court

Dinesh Nanhaku Rathor vs The Manager, Varad Industires, ... on 8 August, 2016

Bench: P.R. Bora

                                             1                     FA No. 1636/2016

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                             
                       BENCH AT AURANGABAD

                           FIRST APPEAL NO.1636 OF 2016




                                                     
      Dinesh s/o Nanhaku Rathor
      Age: 31 Yrs., occu. Press Operator
      R/o House No. 24, Vadgaon (Ko)




                                                    
      Tq. and Dist. Aurangabad.          =                     APPELLANT

               VERSUS

      The Manager,




                                      
      Varad Industries, Plot No.31,
      MIDC, Waluj, Aurangabad,
      District Aurangabad.
                             
                               -----
                                                      =        RESPONDENT 

      Mr.Gautam J.Pahilwan, Advocate for Appellant;
                            
      Mr.S.D.Kotkar, Advocate for Sole-Respondent
                                       -----
                                   CORAM :  P.R.BORA, J.

DATE :

8 th

August,2016.

ORAL JUDGMENT:

1) Heard. Admit. By consent of learned

Counsel appearing for the respective parties,

heard finally at admissions stage.

2) The present appeal is filed against the

judgment and order passed by the Labour court, at

Aurangabad in Application (WC) No.7/2014 on

4.2.2016. The present appellant had filed the

aforesaid Application claiming compensation under

the provisions of Workmen's Compensation Act (for

short, the said Act). The learned Labour court,

vide the impugned judgment has dismissed the said

application as being not maintainable under the

provisions of the Workmen's Compensation Act.

3) Shri Pahilwan, learned Counsel appearing

for the appellant, submitted that the Labour

court has grossly erred in rejecting the

application on the point of maintainability. The

learned Counsel relying on the judgment of the

Full Bench of Kerala High court in the case of

P.Asokan Vs. Western Indian Plywoods Ltd,

Cannanonre - AIR 1987 KERALA 103(1), prayed for

setting aside the impugned order and consequently

to allow the application so filed by the

appellant before the Labour court.

4) Shri Kotkar, learned Counsel appearing

for respondent, has supported the impugned

judgment. The learned Counsel submitted that the

provisions of Employees' State Insurance Act,

1948 (for short, ESI Act) are applicable to the

respondent factory and as such, the appellant the

appellant could not have filed the application

invoking the provisions under the Workmen's

Compensation Act. The learned Counsel relied upon

the judgment of this court in First Appeal No.

2837/2009 delivered on 13th April, 2016. The

learned Counsel, therefore, prayed for dismissal

of the appeal.

5) Considered the submissions advanced by

the learned Counsel appearing for the parties.

Perused the impugned judgment and other material

placed on record. The appellant has not disputed

that the provisions of ESI Act are applicable to

the employees of the respondent factory and the

appellant was `insured person' as defined under

Section 2(14) of the ESI Act. The Hon'ble Apex

court in para 12 of the judgment in the case of

Trehan Vs. Associated Electrical Agencies and

Anr. - (1996) 4 SCC 255, 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 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." "