Delhi High Court
Saket Gupta vs Imrana Khatoon & Ors. on 20 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 93/2016 and C.M. Nos. 10222/16 & 6677/2016
% 20th April, 2017
SAKET GUPTA ..... Appellant
Through: Mr. Suneel K. Atreya, Adv.
versus
IMRANA KHATOON & ORS. ..... Respondents
Through: Mohd. Ataher Khan, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal under Section 30 of the Employees
Compensation Act, 1923 challenges the judgment of the Employees
Compensation Commissioner awarding the claim/compensation to the
respondents herein, and who were the claimants before the Employees
Compensation Commissioner, on account of the death of one Mohd.
Yameen. The respondents herein are the legal heirs of deceased Mohd.
Yameen.
2. The impugned judgment dated 18.11.2015 shows that the
appellant had taken the objection that the deceased Mohd. Yameen was
in fact an employee of M/s Gupta Traders which is a sole proprietary
concern, not of the appellant, but of the father of the appellant Sh.
Vijay Prakash Gupta. The firm of M/s Gupta Traders; sole proprietor
Mr. Vijay Prakash Gupta is duly registered under the Employees State
Insurance Corporation Act, 1948 (in short 'ESIC Act') as per Code No.
10000357760001001 with effect from 2002. Accordingly, it was
contended on behalf of the appellant that the respondents will have to
take their benefit not under the Employees Compensation Act but
under the ESIC Act in view of Section 53 of the ESIC Act. Section 53
of the ESIC Act contains a bar to the grant of compensation under the
Employees Compensation Act in case the employee is covered under
the ESIC Act.
3. ESIC was noticed by the Employee's Compensation
Commissioner and since ESIC denied its liability, hence the
Employee's Compensation Commissioner allowed the claim petition
under the Employee's Compensation Act.
4. It may be noted that ESIC denied its liability on the
ground that the deceased Mohd. Yameen was registered as an
employee with the ESIC after his death and consequently respondents
did not have entitlement under the ESIC Act. Mohd. Yameen died on
26.11.2013 and he was registered under the ESIC Act from
19.12.2013. Learned counsel for the appellant has placed reliance
upon the judgment of the Supreme Court in the case of Bharagath
Engineering Vs. R. Ranganayaki and Another (2003) 2 SCC 138 and
which judgment holds that once an employee is an employee covered
under the ESIC Act, merely because the registration is granted under
the ESIC Act to the employer with respect to the deceased employee
after the death of the employee, would not mean that the ESIC Act will
not apply. Supreme Court in the case of Bharagath Engineering
(supra) has referred to various provisions of the ESIC Act and rules
framed there under along with regulations framed under the ESIC Act
to observe that in spite of insurance premium being not paid by the
employer, the employee or his dependants cannot be deprived of the
benefit of the ESIC Act.
5. Learned counsel for the appellant also states that appellant
has in fact filed an appeal under Section 75 of the ESIC Act against the
order of the competent authority under the ESIC Act refusing to treat
the respondents as beneficiaries under the ESIC Act and this appeal is
pending. It is stated that the appellant will add the present respondents,
being the legal heirs of Mohd. Yaseen as co-appellants in that appeal,
and needful will be done within a period of two weeks from today.
Appellant will do the needful as per this statement.
6. Since the respondents are confronted with the bar under
Section 53 of the ESIC Act whereby compensation cannot be claimed
under the Employees Compensation Act, learned counsel for the
respondents agrees that this appeal be disposed of by setting aside the
order of the Employees Compensation Commissioner dated 18.11.2015,
but the respondents be held entitled to rights under the ESIC Act, and for
which purpose as already stated above, respondents will be added as co-
appellants in the appeal filed by the appellant under the ESIC Act.
Ordered accordingly. The application when filed by the present appellant
before the appellate authority under the ESIC Act will be signed by the
respondents herein giving their consent for being added as co-appellants
in the appeal filed under Section 75 of the ESIC Act.
7. In view of the above discussion, though the impugned
judgment of the Employee's Compensation Commissioner dated
18.11.2015 is set aside, respondents are directed to be made as parties to
the appeal filed under Section 75 of the ESIC Act and the respondents
along with the present appellant will be entitled to pursue the appeal for
getting appropriate claims under the ESIC Act in terms of the ratio of the
judgment of the Supreme Court in the case of Bharagath Engineering
(supra). Appeal is accordingly disposed of, leaving the parties to bear
their own costs.
APRIL 20, 2017/ib/Ne VALMIKI J. MEHTA, J
