Madras High Court
The Management vs T. Krishnan on 11 August, 2023
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047,
1048, 1049, 1050, 1052 and 1056 of 2023
and
C.M.P.Nos.9819, 9824, 9826, 9836, 9840, 9843, 9844, 9846, 9847, 9852,
9848, 9858, 9859 and 9896 of 2023
The Management,
ECOF Industries Private Limited,
Door No.3,
Beemanna Garden Street,
Abiramipuram,
Chennai – 600 018. ... Appellants
in all the CMAs
Vs.
T. Krishnan ... Respondent
in CMA.No.1037/2023
K. Kumar ... Respondent
in CMA.No.1038/2023
C. Sugumar ... Respondent
in CMA.No.1040/2023
P. Periyasamy ... Respondent
in CMA.No.1041/2023
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
R. Gunasekaran ... Respondent
in CMA.No.1042/2023
B. Sankar ... Respondent
in CMA.No.1043/2023
T. Karmegam ... Respondent
in CMA.No.1044/2023
P. Chinthamani ... Respondent
in CMA.No.1045/2023
S. Peter ... Respondent
in CMA.No.1046/2023
P. Kaveri ... Respondent
in CMA.No.1047/2023
M. Rajendran ... Respondent
in CMA.No.1048/2023
A. Tamilselvan ... Respondent
in CMA.No.1049/2023
K. Murugan ... Respondent
in CMA.No.1050/2023
M. Mahadevan ... Respondent
in CMA.No.1052/2023
V. Elumalai ... Respondent
in CMA.No.1056/2023
Prayer in CMA.No.1037/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to set aside the order of the
Joint Commissioner of Labour, Salem dated 25.01.2023 in I.A.No.235 of
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
2022 in W.C.No.298 of 2021 and allow the appeal.
Prayer in CMA.No.1038/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to set aside the order of the
Joint Commissioner of Labour, Salem dated 25.01.2023 in I.A.No.234 of
2022 in W.C.No.188 of 2021 and allow the appeal.
Prayer in CMA.No.1040/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to set aside the order of the
Joint Commissioner of Labour, Salem dated 25.01.2023 in I.A.No.233 of
2022 in W.C.No.180 of 2021 and allow the appeal.
Prayer in CMA.No.1041/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to setting aside the order of
the Joint Commissioner of Labour, Salem dated 25.01.2023 in I.A.No.232
of 2022 in W.C.No.179 of 2021 and allow the appeal.
Prayer in CMA.No.1042/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.229 of 2022 in W.C.No.176 of 2021 and allow the appeal.
Prayer in CMA.No.1043/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.249 of 2022 in W.C.No.224 of 2021 and allow the appeal.
Prayer in CMA.No.1044/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.230 of 2022 in W.C.No.177 of 2021 and allow the appeal.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
Prayer in CMA.No.1045/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.240 of 2022 in W.C.No.215 of 2021 and allow the appeal.
Prayer in CMA.No.1046/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.228 of 2022 in W.C.No.175 of 2021 and allow the appeal.
Prayer in CMA.No.1047/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.244 of 2022 in W.C.No.219 of 2021 and allow the appeal.
Prayer in CMA.No.1048/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.245 of 2022 in W.C.No.220 of 2021 and allow the appeal.
Prayer in CMA.No.1049/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.250 of 2022 in W.C.No.225 of 2021 and allow the appeal.
Prayer in CMA.No.1050/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.248 of 2022 in W.C.No.223 of 2021 and allow the appeal.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
Prayer in CMA.No.1052/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.247 of 2022 in W.C.No.222 of 2021 and allow the appeal.
Prayer in CMA.No.1056/2023: Civil Miscellaneous Appeal is filed under
Section 30(1) of Workmen's Compensation Act, to pass orders setting aside
the order of the Joint Commissioner of Labour, Salem dated 25.01.2023 in
I.A.No.243 of 2022 in W.C.No.218 of 2021 and allow the appeal.
For Appellant : Mr.S.Ravindran, Senior Counsel
for Mr.M.Arumugham
For Respondents : No Appearance
COMMON JUDGMENT
All the appeals have been filed challenging the order passed in the
interim applications filed in the claim petitions by the respondents.
2. The respondents in all the appeals had filed the claim petitions
before the Joint Commissioner of Labour, Salem stating that during the
course of employment, they had contracted the disease called Silicosis and
that the appellant is liable to pay compensation for the disease contracted by
them during the course of employment.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
3. The appellant filed an interim application stating that the
respondents' claim for compensation under the provisions of the Workmen's
Compensation Act is barred in terms of Section 53 of ESI Act as the
respondents had ESI coverage and therefore, the claim petitions are liable to
be dismissed. The Joint Commissioner of Labour, dismissed all the interim
applications filed by the appellant herein and held that the claim petitions
are maintainable. Challenging the orders passed in the said interim
applications, the appellant has preferred the above appeals.
4. Mr.S.Ravindran, learned Senior Counsel for the appellant
submitted that when the appellant had raised a specific issue on
maintainability, the Labour Commissioner ought to have decided the issue
on the basis of the facts and pleadings before it instead of observing that the
claim petitions are not barred under Section 53 of the ESI Act. The Joint
Commissioner had stated that from the pleadings, it can be inferred that the
respondents contracted the disease during the course of employment and
had erroneously observed without adverting to the facts that the employees
were out of ESI coverage.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
4.1 For instance, in C.M.A.No.1047 of 2023, though the letter
dated 09.09.2022 addressed by the Deputy Director Legal, ESI Corporation
to the Joint Commissioner of Labour states that the respondent was covered
under the ESI Act for the period from April 2010 to September 2015 and
from October 2016 to September 2018, the Joint Commissioner erroneously
held that the respondent did not have coverage from 01.04.2018.
4.2 Similarly, in CMA.No.1043 of 2023, as per the aforesaid
letter, the respondent had ESI coverage from April 2010 to September 2015,
October 2016 to September 2018 and April 2021 to September 2021. But
the Joint Commissioner held that the respondents did not have coverage
from 01.04.2018.
4.3 The learned Senior Counsel also pointed out that in some of
the other cases, though the Joint Commissioner found that though there was
no proof as to when the employees contracted the disease, the benefit of
doubt should be given in favour of the respondents and presumed that it
could be during the year 2018. Learned Senior Counsel submitted that such
an inference cannot be done.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
4.4 The Joint Commissioner also made another inference
without any basis stating that at the time when some of the respondents had
contracted the disease, they were out of ESI coverage. Therefore, the
learned Senior Counsel submitted that the order of Labour Commissioner
dismissing the IAs as not maintainable has to be set aside.
5. Though notice was served on the respondents in all the
CMAs, except in C.M.A.Nos.1045, 1046 & 1052 of 2023 the respondents
have not chosen to enter appearance. Even though, notice has not been
served in three C.M.As, in view of the order that this Court proposes to pass
no prejudice would be caused to them.
6. This Court finds from the interim applications filed by the
appellant before the Labour Commissioner that their primary contention was
that the respondents were covered under the provisions of ESI Act and
therefore, the claim petitions filed under the Workmen's Compensation Act
against the appellant are not maintainable. As pointed out by the learned
Senior Counsel, the Joint Commissioner had observed in some of the cases
that the respondents were out of ESI coverage, although the letter of the
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
Assistant/Deputy Director (Legal) of the ESI Corporation confirms the fact
that they were covered under the ESI Act, during the relevant period. It is
also seen from the orders passed by the Joint Commissioner that the
Commissioner presumed the date of contracting the disease by the
respondents and observed that they were out of ESI coverage. In certain
other cases, the Joint Commissioner also found that it was not known as to
when the respondents contracted the disease. In the light of the above, this
Court is of the view that the claim petitions cannot be decided on such
vague facts. In order to determine, whether the respondents are entitled to
compensation, in order to award a just compensation and to determine
whether their claim petitions are barred under Section 53 of ESI Act, it is
necessary that the following facts are ascertained:-
i)Whether the respondents contracted the disease
during the course of employment? If so, as to when he or she
contracted the disease?
ii) Whether the respondents concerned were
covered under the ESI Act during the relevant period?
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
7. In order to obtain the answers to the above questions, this Court
is of the view that it is desirable to remit the matter back to the Joint
Commissioner. Accordingly, the matter is remitted back to the Joint
Commissioner. The Joint Commissioner, in order to obtain the facts
necessary to decide the issue may direct the respondents herein to be
examined by the Medical Board, attached to the Salem Government, Mohan
Kumaramangalam Medical College Hospital, Salem. The Medical Board
may certify as to whether the respondents suffer from any disease, whether
it was contracted during employment and as to the approximate time when
they contracted the disease. Thereafter, the Joint Commissioner may
determine on the basis of the aforesaid facts whether the respondents are
covered under ESI Act. On such determination if the Joint Commissioner
finds that any of the respondents are not covered under the ESI Act, then he
may determine compensation in respect of those respondents in accordance
with law.
8. In respect of other respondents who are covered under the ESI
Act, the Joint Commissioner may dismiss their claim petitions. It is needless
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
to say that those respondents would be entitled to claim compensation from
the ESI Corporation under the provisions of ESI Act.
9. With the above observation, all the Civil Miscellaneous
Appeals are disposed of. Consequently, connected miscellaneous petitions
are closed. There shall be no order as to costs.
11.08.2023
Index: Yes/No
Neutral Citation: Yes/No
AT
To
1. The Joint Commissioner of Labour, Salem.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1052 & 1056 of 2023
SUNDER MOHAN, J.
AT
C.M.A.Nos.1037, 1038, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047,
1048, 1049, 1050, 1052 and 1056 of 2023
and
C.M.P.Nos.9819, 9824, 9826, 9836, 9840, 9843, 9844, 9846, 9847, 9852,
9848, 9858, 9859 and 9896 of 2023
11.08.2023
https://www.mhc.tn.gov.in/judis
