Delhi High Court
Mohinder Pal Singh vs Upender Paswan & Ors on 3 February, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 03, 2017
+ W.P.(C) 11027/2016 & CM 43091/2016
MOHINDER PAL SINGH ..... Petitioner
Through: Mr. S.C. Varma, Mr. Narottam
Vyas, Advocates.
versus
UPENDER PASWAN & ORS ..... Respondents
Through: Mr. Hari Kishan, Advocate for
Respondent No.1 along with
Respondent No.1 in person.
Mr. Vinod Kumar Goyal, Mr.
Abhinav Singh, Mr. Prashant
Tomar, Advocates for
Respondent No.2.
Mr. S. Chadda, Mr. Ishan
Kashyap, Advocates for
Respondent No.3.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The petitioner has challenged the order dated 23rd September,
2016 passed by the Commissioner, Employees' Compensation
whereby compensation of Rs.10,07,616/- has been awarded to
respondent No.1.
2. On 15th February, 2013, respondent No.1 during the course of
his employment with the petitioner, suffered an accident due to which
his right hand from the wrist joint was cut by the petitioner's machine.
Respondent No.1 was taken to Safdarjung Hospital and thereafter
shifted to Kheterpal Nursing Home, Raghuvir Nagar, Delhi where his
right hand was amputated. The police registered FIR No. 42 dated
16th February, 2013 against petitioner under Sections 287/338 of IPC.
Respondent No.1 filed an application for compensation before the
Commissioner, Employees' Compensation in which the petitioner
admitted the relationship of employment between the parties on the
date of the accident. The petitioner also admitted the accident suffered
by respondent No.1 and amputation of his right hand which got stuck
in the machine. However, the petitioner attributed the negligence and
carelessness to respondent No.1. It was further pleaded that the
petitioner got respondent No.1 admitted in the Nursing Home and paid
the medical expenses. The petitioner further expressed willingness to
keep respondent No.1 in service. The petitioner further pleaded that
the petitioner was covered under the ESI Act.
3. During the pendency of the application before the
Commissioner, Employees' Compensation, the petitioner compounded
the criminal offence under Section 338 of the I.P.C before the
Metropolitan Magistrate on 14th December, 2015 upon payment of
Rs.1,00,000/- to respondent No.1 on 14th December, 2015.
4. On 16th October, 2014, the petitioner sought closure of the case
on the ground that petitioner's unit was covered under ESI Act and
respondent No.1 was entitled to benefits under the ESI Act and,
therefore, the application was not maintainable under Section 53 of the
ESI Act. The petitioner further informed having paid Rs.75,000/- as
settlement amount to the respondent No.1. The Commissioner,
Employees' Compensation closed the matter in view of the settlement
and further that respondent No.1 would receive benefits under the ESI
Act.
5. On 18th February, 2015, respondent No.1 filed an application
for restoration of his claim application on the ground that he was not
covered under the ESI Act as stated by the petitioner. Vide order dated
30th March, 2015, the Commissioner, Employees' Compensation
reopened the case and vide order dated 23rd September, 2016, the
claim application of respondent No.1 was allowed and compensation
of Rs.10,07,616/- was awarded to respondent No.1 which is under
challenge in this writ petition.
6. The petitioner has challenged the impugned order on the ground
that the petitioner was covered under ESI Act w.e.f. 08th February,
2013 and the accident dated 15th February, 2013 occurred thereafter
and, therefore, respondent No.1 was entitled to the benefits under the
ESI Act. It was submitted that the application for compensation was
barred by Section 53 of the ESI Act.
7. Learned counsel for respondent No.1 submitted that the writ
petition was not maintainable in view of the equally efficacious
remedy of appeal under Section 30 of the Employee's Compensation
Act. It was further submitted that the petitioner has raised a false claim
with respect to its coverage under ESI Act before this Court and,
therefore, the petitioner be prosecuted under Section 209 of IPC.
8. ESI Corporation have filed an affidavit dated 07th December,
2016 before this Court in which it is stated that the petitioner applied
for its coverage for the first time on 25th February, 2013 i.e. after the
accident dated 15th February, 2013 (Annexure R1); the accident report
was submitted for the first time on-line on 22nd May, 2013 and the
hardcopy was submitted in the Branch Office on 23 rd May, 2013
(Annexure R3). ESI Corporation rejected the petitioner's claim on 27th
June, 2013 and it was communicated to the petitioner on 17th July,
2013 (Annexure R4). Relevant portion of the affidavit is reproduced
hereunder:-
"2. That I have gone through the records of the petitioner
firm which have revealed following facts.
(a) That the Employees State Insurance Corporation after
2010 has implement project Panchdeep wherein after,
various actions such as registration, generation of
Challan, generation insurance card etc. can be done by
the employer at his own end from the online portal of the
Employees State Insurance Corporation.
(b) That the petitioner herein for the first time submitted a
self-declaration by an online application on 25.02.2013
for getting his unit covered under the Employees State
Insurance Act.
(c) That on the basis of the information furnished by him,
registration letter dated 25.02.2013 in form C-11 was
also got generated online by him. Copy of the said letter
was forwarded to the petitioner on 15.05.2013 for the
first time and the copy of the same is Annexed as
Annexure R-1.
(d) That the employer herein on the basis of C-11
generated by him at his end, vide his letter dated
26.02.2013 also submitted form 01 along with relevant
documents. Though the employer claims to have
mentioned about some accident at his premises being
revealed this letter, however, a bare perusal of said letter
dated 26.02.2013 as well as form 01 would revealed that
no clear declaration or information is furnished by the
employer by stating that when such alleged accident has
accrued and/or who had met with the said accident. It is
apparent from the conducted of the petitioner that his
whole attempt was to shift his liability upon ESIC by hook
or by crook. Copy of the form 01 vide letter dated
26.02.2013 is Annexed as Annexure R-2.
(e) That the petitioner herein thereafter submitted the
accident report informing about an accident which
allegedly occurred at his premises even before he had
applied for registration, the said accident report was
submitted for the first time online on 22.05.2013 and the
hard copy of the same was submitted with the concerned
branch office on 23.05.2013. Copy of the accident report
is Annexed as Annexure R-3.
(f) That the said claim of the petitioner herein was
rejected by the competent authority vide communication
dated 27.06.2013 which was also informed to the
petitioner herein vide letter dated 17.07.2013. Copy of
the letter dated 17.07.2013 and 27.06.2013 are
collectively annexed as Annexure R-4(Colly).
(g) That thereafter the petitioner herein remained mum
for almost more than a year and somewhere from the
month of August 2014 started filing one application after
another in connection with the above issue. All the said
communications were duly replied by the answering
corporation and it was categorically informed vide each
communications that the case for employment injury has
been rejected as "Registration of factory under ESIC got
done after the occurrence of accident".
(h) That vide its letter dated 21.10.2014 one Pragatisheel
Engineering and General Mazdoor Union on behalf of
the employee (Respondent No.1) of the petitioner
represented for the first time that the employer while
appearing in the proceedings before the Commissioner,
Workmen Compensation had informed them about the
coverage of the employee under ESIC and accordingly
they prayed for release of benefits to the employee. Copy
of the letter dated 21.10.2014 is annexed herein as
Annexure-R-5.
(i) That in response to the said letter, the corporation
vide its letter dated 11.11.2014 informed the said
employee/union that the case of the employee stood
rejected as the coverage of the factory was got done after
the occurrence of the accident. Copy of the letter dated
11.11.2014 is annexed as Annexure-R-6.
3. That it is humbly submitted that the petitioner herein
has concealed all the above material facts and have not
approached this Hon'ble Court with clean hands. The
petitioner has not only attempted to play fraud with the
answering respondent as shown above he has even not
come clean before this Hon'ble Court. The present
petition is abuse of process of law and is devoid of any
merit and therefore liable to be dismissed with heavy
costs."
9. ESI Corporation have submitted the relevant documents with
respect to the petitioner's coverage as Annexure R1 to R6 along with
the affidavit dated 07th December, 2016. ESI Corporation has also
submitted verified copy of the entire record.
10. On careful consideration of the submissions made by the
petitioner and the record of the Corporation, this Court is satisfied that
the petitioner was not covered under the ESI Act on the date of the
accident i.e. 15th February, 2013. The petitioner applied for
registration of its unit by an on-line application on 25th February,
2013. ESI Corporation, therefore, rightly rejected the petitioner's
claim on 27th June, 2013. The rejection of the petitioner's claim has
not been challenged by the petitioner and has, therefore, attained
finality. The claim of respondent No.1 is therefore, not barred by
Section 53 of ESI Act.
11. There is no merit in this writ petition. This writ petition is
dismissed.
FEBRUARY 03, 2017 J.R. MIDHA, J.
ak
