Full Judgment Text
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PETITIONER:
MR. A. TREHAN
Vs.
RESPONDENT:
M/S. ASSOCIATED ELECTRICALAGENCIES AND ANR.
DATE OF JUDGMENT: 10/05/1996
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
AGRAWAL, S.C. (J)
CITATION:
1996 AIR 1990 1996 SCC (4) 255
JT 1996 (5) 648 1996 SCALE (4)469
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI, J.
This appeal by special leave is against the judgment of
the Bombay High Court in Appeal No. 676 of 1993 whereby the
order passed by a learned Single Judge of the High Court in
Writ Petition No. 1406 of 1993 and also the order dated
April 29, 1993 passed by Commissioner for Workmen’s
Compensation, Bombay have been set aside and the application
filed by the appellant for compensation has been dismissed.
The appellant was employed by Respondent No.1 for
carrying out repairs of television sets. On July 17, 1987
while he was repairing a television set a component of it
burst and that caused an injury to his face. As a result
thereof he lost vision of his left eye.
The appellant being an employee and insured person
under the Employment State Insurance Act, 1948 (hereinafter
referred to as the ‘ESI Act’) and as the injury sustained by
him was an employment injury, became entitled to the benefit
of Section 46(c) of the ESI Act. Therefore, he approached
the ESI Corporation and the Corporation granted the benefit
available to him under the ESI Act.
Thereafter in September 1991 he served a notice on
Respondent No.1 demanding Rs. 7 lakhs as compensation. This
was followed by Application No. 108/C-18 of 1992 before the
Commissioner for Workmen’s Compensation, Bombay under
Section 22(2) of the Workmen’s Compensation Act, 1923
wherein he claimed compensation of Rs.1,06,785 with penalty,
penal interest and costs. In that proceeding Respondent No.1
raised an objection regarding maintainability of the
application under the Workmen’s Compensation Act by filing
an application Exhibit C-5. The objection was that in view
of the bar created by Section 53 of the ESI Act, it was not
open to the appellant to recover any compensation or damages
under the Workmen’s Compensation Act for the said employment
injury. It was overruled by the Commissioner, following the
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Full Bench decision of the Kerala High Court in P. Asokan
vs. Western Indian Plywoods Ltd., Cannanore AIR 1987 Kerala
103, on the ground that ESI Act being a welfare legislation,
the Parliament could not have intended to create a bar
against the workmen from claiming more advantageous benefits
under the Workmen’s Compensation Act. Respondent No.1
thereupon approached the Bombay High Court by way writ
petition being Writ Petition No. 1406 of 1993. A learned
Single Judge of that High Court dismissed it summarily on
the ground that Respondent No.1 had an alternative remedy by
way of first appeal under Section 30 of the Workmen’s
Compensation Act.
Respondent No.1 preferred an appeal to the same High
Court. It was heard by a Division Bench along with other
appeals wherein validity of Section 53 of the ESI Act was
challenged on the ground that it was beyond the legislative
competence of the Parliament and was also violative of
Article 14 of the Constitution. The Division Bench did not
find any substance in the said challenge and upheld the
validity of Section 53. It further held that in view of the
bar created by Section 53 the application filed by the
appellant under the Workmen’s Compensation Act was not
maintainable. It, therefore, allowed the appeal.
The only contention raised by the learned counsel for
the appellant before us was that as the claim for
compensation made by the appellant under the Workmen’s
Compensation Act was de hors the contract of service and was
based on the law of torts the bar created by Section 53 of
the ESI Act was not at all applicable; and therefore, the
High Court committed an error in dismissing the appellant’s
application on the ground that it was barred by Section 53
of the ESI Act. In support of this contention the learned
counsel heavily relied upon the following observation made
by K. Ramaswamy J. in Regional Director E.S.I. Corporation
and Anr. vs. Francis De Costa and Anr. 1992 (3) SCR 23:
"The general law of tort or
special law in Motor Vehicles
Act or Workman Compensation
Act may provide a remedy for
damages. The coverage of
insurance under the Act in an
insured employment is in
addition to but not in
substitution of the above
remedies and cannot on that
account be denied to the
employee."
The decision in Asokan’s case (supra) has also been
relied upon.
The ESI Act was enacted with an object of introducing a
scheme of health insurance for industrial workers. The
scheme envisaged by it is one of compulsory State Insurance
providing for certain benefits in the event of sickness,
maternity and employment injury to workmen employed in or in
connection with the work in factories other than seasonal
factories. The ESI Act which has replaced the Workmen’s
Compensation Act, 1923 in the fields where it is made
applicable is far more wider than the Workmen’s Compensation
Act and enlarges the scope of compensation. Section 38
provides that all employees in factories or establishments
to which the ESI Act applies shall be insured in the manner
provided it. Under Section 39 the employer is also made
liable to pay contribution. Section 42 provides for
circumstances under which the employee need not pay his
contribution. Section 46 provides for the benefits which the
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insured persons, their dependents and the persons mentioned
therein shall be entitled to get on happening of the events
mentioned therein. Sections 5 (e certain
fictions in. favour of the employee so as to have wider
coverage for him. In case of an employment injury Section 46
provides periodical payments to him or to his dependents in
case of his death. Employment injury is defined by Section
2(8) to mean a personal injury to an employee caused by
accident or an occupational disease arising out of and in
the course of his employment, being an insurable employment,
whether the accident occurs or the occupational disease is
contracted within or outside the territorial
limits of India. Section 2(9) defines employee
to mean any person employed for wages in or in connection
with the work of a factory or establishment to which the ESI
Act applies. It includes other persons but it is not
necessary to refer to that part of the definition. Insured
person is defined by Section 2(14) to mean a person who is
or was an employee in respect of whom contributions are or
were payable under the Act and who is by reason thereof,
entitled to any of the benefits provided by the ESI Act. The
Second Schedule to the ESI Act specifies the injuries deemed
to result in permanent total disablement or permanent
partial disablement. Rule 54 of the Employees’ State
Insurance (Central) Rules, 1950 provides the daily rate of
benefit which the employee would get if an employment injury
is suffered by him. Rule 57 provides for disablement
benefits. Rule 58 provides for dependent’s benefits in case
the injured person dies as a result of an employment injury.
Rule 60 provides for the medical benefits to insured person
who ceases to be in an insured employment on account of
permanent disablement. Other benefits are also conferred by
the ESI Act and the Rules but it is not necessary to refer
to them for deciding the point which arises in this case.
Two other provisions in the ESI Act to which it is necessary
to refer are Sections 53 and 61. The present Section 53 was
substituted by Act No. 44 of 1960 with effect from
28.1.1968. Section 61 has been there in the Act since it
came into force. It provides that when a person is entitled
to any of the benefits provided by the ESI Act he shall not
be entitled to receive any similar benefits admissible under
the provisions of any other enactment. Thus, by enacting
Section 61 the Legislature has created a bar against
receiving similar benefits under other enactments. Section
53 before its amendment read as under:
"53. Disablement and
dependent’s benefits:- When an
insured person is or his
dependents are 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, or
otherwise, in respect of an
employment injury sustained by
the insured person as an
employee under this Act, then
the following provisions shall
apply, namely :-
(1) The insured person shall,
in lieu of such compensation
or damages, receive the
disablement benefit provided
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by this Act, (but subject
otherwise to the conditions
specified in the Workmen’s
Compensation Act, 1923) from
the Corporation and not from
any employer or other person.
(ii) .... .... ....
(iii) .... .... ....
( iv ) .... .... ....
(v) Save as modified by this,
Act the obligations and
liabilities imposed on an
employer by the Workmen’s
Compensation Act, 1923, shall
continue to apply to him."
Experience of the administration of the ESI Act had
disclosed certain difficulties in its working. It was,
therefore, further amended in 1966. Along with other
amendments made in the ESI Act the Legislature substituted
present Section 53 which read as under:
"Section 53. Bar against
receiving or recovery of
compensation or damages 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."
The Workmen’s Compensation Act was enacted by the
Legislature in 1923 with a view to provide for the payment
by certain classes of employers to their workmen
compensation for injury by accident. Section 3(1) of
the Act provides that if personal injury is caused to a
workman by accident arising out of and in the course of his
employment, his employer shall be liable to pay compensation
in accordance with the provisions contained in that Act.
Under Section 2 (l)(c) the word compensation is defined to
mean compensation as provided for by the Act. The definition
of the workman under the Act is as under:
" "workman" means any person
(other than a person whose
employment is of a casual
nature and who is employed
otherwise than for the
purposes of the employer’s
trade or business) who is
(i) .... .... ....
(ii) employed in any such
capacity as is specified in
Schedule II, whether the
contract of employment was
made before or after the
passing of this Act and
whether such contract is
expressed or implied, oral or
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in writing; but does not
include any person working in
the capacity of a member of
the Armed Forces of the Union;
and any reference to a workman
who has been injured shall,
where the workman is dead
includes a reference to his
dependants or any of them."
A comparison of the relevant provisions of the two Acts
makes it clear that both the Acts provide for compensation
to a workman/employee for personal injury caused to him by
accident arising out of and in the course of his employment.
The ESI is a later Act and has a wider coverage. It is more
comprehensive. It also provides for more compensation than
what a workman would get under the Workmen’s Compensation
Act. The benefits which an employee can get under the ESI
Act are more substantial than the benefits which he can get
under the Workmen’s Compensation Act. The only
disadvantage, if at all it can be called a disadvantage, is
that he will get compensation under the ESI Act by way of
periodical payments and not in a lump sum as under the
Workmen’s Compensation Act. If the Legislature in its wisdom
thought it better to provide for periodical payments rather
than lump sum compensation its wisdom cannot be doubted.
Even if it is assured that the workmen had a better right
under the Workman’s Compensation Act in this behalf it was
open to the Legislature to take away or modify that right.
While enacting the ESI Act the intention of the Legislature
could not have been to create another remedy and a forum for
claiming compensation for an injury received by the employee
by accident arising out of and in the course of his
employment.
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.
The observations made in Francis De Costa (supra) by K.
Ramaswamy, J. were made in a different context. In that case
the question which had arisen for consideration was whether
the injury caused by an accident on a public road while an
employee was on his way to join duty can be held as arising
out of or in the course of his employment within the meaning
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of Section 2(8) of the ESI Act. Moreover, in that case the
Court was not examining the bar created by Section 53 of the
ESI Act.
In Asokan’s case (supra) the Full Bench of the Kerala
High Court was called upon to consider whether an employee
who had received benefit under the ESI Act and wanted to
file a suit in a civil court in forma pauperis could be
permitted to file such a suit in view of the bar created by
Section 53 of the ESI Act. The Kerala High Court after
referring to the history and development of labour welfare
legislation held that Section 53 and Section 61 of the ESI
Act do not bar an action founded upon the law of torts. The
reason given by the Kerala High Court for taking that view
is that the dominant idea of the ESI Act was to confer
benefits on the workmen and not reduce or restrict a pre-
existing liability of the employer and that if Section 53 is
interpreted or construed as creating a bar from claiming
compensation in respect of a tortious act of the employer
under other provisions of law then that would amount to
depriving an employee the benefit of higher compensation
only for the reason that he is an employee under the ESI
Act. According to the Kerala High Court Parliament could not
have intended "such an operation to operate on the
employees, when it enacted the Employees’ State Insurance
Act". We cannot agree with some of the assumptions and
observations made by the Kerala High Court. Moreover, the
Kerala High Court has taken that view without referring to
and considering the effect of the clear and express words
used in that Section. Again, that was not a case where a
question whether an employee and an insured person under the
ESI Act can again claim the compensation under the Workmen’s
Compensation Act had arisen for consideration We are,
therefore, of the opinion that neither the observations made
by K. Ramaswamy, J. in Francis De Costa (supra) nor the
decision in P. Asokan’s case (supra) can be of any help to
the appellant.
The Madras High Court in Mangalamma vs. Express
Newspapers Ltd. AIR 1982 Madras 223, Karnataka High Court in
K.S. Vasantha vs. Karnataka State Road Transport Corporation
1982 FIR (Vol.60) p.118 and Smt. Annapura vs. General
Manager, Karnataka Stats Transport Corporation (1984 Labour
and Industrial Cases 1335) have considered the effect of the
bar created by Section 53 of the ESI Act with respect to the
claim for compensation made under the Motor Vehicles Act for
injuries received because of an accident arising out of and
in the course of employment. In our opinion, the view taken
by those High Courts with respect to the object of Section
53 of the ESI Act and the nature and the effect of the bar
created by it appears to be correct.
In the result, this fails and is dismissed. NO order as
to coats.