IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA CIVIL MISCELLANEOUS APPEAL No.1142 of 2000 Between: The Regional Director, ESI Corporation, Hyderabad ... APPELLANT A N D Smt. Hemalatha and others ... RESPONDENTS JUDGMENT: This appeal is filed under Section 82 of the Employees State Insurance Act, 1948 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) being aggrieved of the order in E.I. Case No.5 of 1999 on the file of the Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad. 2. Smt.Pushpinder Kaur, learned counsel representing the appellant would maintain that the Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad had failed to appreciate that late Ramesh Chandra, husband of the first petitioner did not attend to his duties as there was no attendance marked against his name on 18-10-1997, the date of death. The learned counsel also would maintain that it was also on record that he died at 7.30 A.M., wherein working hours would commence at 8.00 A.M. The learned counsel also would maintain that the learned Tribunal failed to appreciate the oral and documentary evidence available on record. The learned counsel also would point out that the decisions and the point also had not been appreciated in proper perspective. 3. The respondents had been served and none represents the respondents. 4. In the light of the submissions made by the learned counsel on record, the following points that arise for consideration in this Civil Miscellaneous Appeal are: 1. Whether the findings recorded by the Tribunal to be confirmed or to be modified or to be set aside in the facts and circumstances of the case ? 2. If so, to what relief the parties would be entitled to ? 5. POINT No.1:- The parties hereinafter would be referred to as shown in E.I. Case No.5 of 1999 for the purpose of convenience. The said petition was filed by the petitioners under Section 75 (g) of the Act declaring the death of Mr.Ramesh Chandra as an employment injury, set aside the memo dated 16-2- 1998 and consequently direct the respondent-corporation to pay all the benefits to the petitioners. It is needless to say that the petitioners are the respondents in the present Civil Miscellaneous Appeal. 6. The brief facts of the petition are: One Mr.Ramesh Chandra was working as a Clerk in the factory of M/s.Hiralal Parthuram and Company, Beedi Manufacturers, Nizamabad which is the 2nd respondent herein. The Beedi manufacturing process involves receiving of raw material like Beedi leaves Tobacco stationery material etc., and also dispatch of the manufactured beedis promptly to various destinations including Inter State Supply. Number of Lorries/Trucks come with raw material and number of lorries/trucks go with loaded finished products. Each lorry/ truck operation takes 3 to 4 hours towards loading, unloading, verification, packing stitching, weighing and dispatch work. It was the duty of Mr.Ramesh Chandra to prepare statements, accounts, vouchers, permit papers etc, pertaining to the receipt of material as well as dispatch of finished products. All this work involves physical labour, vigilance, surveillance, control of labour and control hamalies, will naturally result in stress and strain on the concerned person both physically as well as mentally. On 17-10-1997, while doing the said work from 7.00 a.m., onwards, the said Ramesh Chandra had chest pain around 10.30 a.m., and therefore, immediately consulted the doctor and obtained treatment. He continued the work thereafter. He joined the duty at 7.00 a.m., on 18-10-1997 as usual and started the work. Around 7.30 a.m., he had suddenly fallen down and became unconscious. He was taken to Dr.C. Jalapath Rao, Former Superintendent of Government Hospital, Nizamabad. However, he was declared dead by the Doctor. The dead body of the deceased was sent to his native place in Gujrat. On seeing the dead body of the deceased, his mother unable to control herself, died on the spot due to the shock. The deceased Ramesh Chandra died only out of and in the course of employment. Admittedly, he suffered the pain and heart attack while on actual duty. The death was due to his employment only. The 2nd respondent submitted the accident report to the 1st respondent. Inspite of that, the 1st respondent informed vide its letter dated 16-2-1998 that the claim of the petitioner is rejected. The 1st petitioner is the wife, 2nd petitioner is the daughter, 3rd petitioner is daughter and 4th petitioner is son of the said Ramesh Chandra. The ESI Act is a social welfare legislation. The 1st respondent by misinterpreting the law, is not granting the benefits to the helpers dependents. Therefore, this Court may be pleased to pass an order defecting that the death of the deceased Ramesh Chandra had taken place out of and in the course of employment and set aside the Memo dt.16-2-1998 and consequently direct the ESI Corporation to pay all the benefits payable under the Act for the death of the deceased. 7. The first respondent filed written statement that the accident report was submitted by the 2nd respondent, 61 days after the alleged death. The Manager of the Local Office of the respondent corporation investigated this case and sent the report to the 1st respondent which along with the other evidence and material available on record was carefully considered and the 1st respondent came to the conclusion that the death of Sri Ramesh Chandra was not due to employment injury and the same was informed to the petitioner also through its letter dated 16-2-1998. Sri Ramesh Chandra was a clerk and his duty hours are from 8.00 a.m. to 12.00 noon and 2.00 p.m. to 6.00 p.m., whereas the alleged heart attack was at 7.30 a.m., on 18-10-1997. The muster roll does not show that the deceased was on duty at the time when he sustained the alleged heart attack. The evidence on record also established that the deceased was residing in the factory premises itself and therefore, the heart attack sustained by him, even if it is true, is only beyond the duty hours and that the alleged heart attack did not take place in the course and out of the employment. Hence, the death is not due to employment injury. None of the Medical Certificates submitted establishes that the deceased sustained employment injury. The certificates issued by the Medical Officers who are alleged to have examined the deceased during the lifetime did not, disclose the medicines prescribed. Certificates issued by Dr.P.Krishna Murthy on 17-10-97 at 11.00 a.m., speaks of Arjina Pectoris and did not contain the details of examination, medicines prescribed etc. Further the certificates issued by Dr.Vivekanand on 17-10-97 at 10.00 p.m., speaks of retroster not burning. There is no certificate from any Medical Officer to prove that the deceased sustained heart attack at 7.30 a.m., on 18-10-1997. The only certificate issued on that date was death certificate issued by Dr.C.Jalpath Rao which states that the death was due to Acute Mycordial infraction. There is also no evidence to prove that there was acceleration of heart attack due to stress and strain. In fact, there is no evidence to the effect that the deceased was having heart problem earlier, which was accelerated on account of stress and strain during the course of employment. Hence, the respondent corporation has no alternative except to reject the contention that the death was on account of employment injury. The respondent communicated to the petitioner that the death of Ramesh Chandra was not due to employment injury. The question of payment of dependant benefit to the petitioners does not arise. There is no harassment or arbitrariness in the case. Hence, the petitioner may be dismissed. The second respondent filed counter supporting the case of the petitioner. 8. On the strength of this pleadings, the following issues were settled: 1. Whether the death of Ramesh Chandra who is the husband and father of the petitioners respectively, was occurred during the course and out of the employment ? 2. Whether the accident report is sent by the employer in time to the ESI Corporation ? 3. Whether the petitioners are entitled to dependant benefits under the ESI Act ? 4. Whether the petition is liable to be dismissed against the employer i.e., R-2 ? 5. To what relief ? 9. Before the Tribunal PWs.1 and 2 and RWs.1 to 4 were examined, Exs.P-1 to P-4 and Exs.R-1 to R-9 also had been marked. The Tribunal appreciated the evidence available on record and ultimately came to the conclusion that the relief prayed for by the respondents in the Civil Miscellaneous Appeal – petitioners in E.I. Case No.5 of 1999 was allowed. Aggrieved by the same, the present Civil Miscellaneous Appeal had been filed. 10. On a careful analysis of the findings and also the oral and documentary evidence available on record, since it is contended that the unfortunate happening happened not during the employment hours, this is a matter to be gone into. This Court had given anxious consideration to the findings recorded. Though elaborate reasons had been recorded, the crucial question to be decided had not been answered in proper perspective. Even otherwise, the evidence of PWs.1 and 2 also may not be sufficient, in the light of the evidence of RWs.1 to 4, apart from Exs.P-1 to P- 4 and Exs.R-1 to R-7. The parties to be given liberty to adduce further oral and documentary evidence as well. In the light of the facts and circumstances, without expressing any further opinion, this Court is inclined to made an order of remand. 11. POINT No.2:- In the result, the order under challenge is hereby set aside and the matter is remanded to the Employees Insurance Court and Chairman Industrial Tribunal-I, Hyderabad to give an opportunity to both the parties to let in further evidence and record appropriate findings, in accordance with law. 12. Accordingly, the Civil Miscellaneous Appeal is allowed to the extent indicated above. There shall be no order as to costs. 13. Inasmuch as it is an old matter the order of remand is being made let the learned Judge, Employees Insurance Court and Chairman Industrial Tribunal-I, Hyderabad dispose of the matter at the earliest point of time. ___________________ P.S. NARAYANA, J June 17, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA CIVIL MISCELLANEOUS APPEAL No.1142 of 2000 June 17, 2010