IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13071 of 2002 M/S USHA AGRO INDUSTRIES PVT.LTD. Versus THE STATE OF BIHAR & ORS ----------- 3 5.5.2009 Heard Mr. Alok Kumar Sinha, learned counsel for petitioner, counsel for the State as also counsel for the respondent no.3. The prayer of the petitioner in this writ application reads as follows:- “1. That the petitioner humbly prays for issuance of appropriate writ/writs, order/orders for quashing the order dated 30.10.2001 (Annexure-1) passed in W.C. Case no.26 of 2000 by the Workmen Compensation Commissioner, Patna (Respondent no.2) through which the petitioner has been made liable to pay Rs. 53040/- by way of Compensation towards the loss of earning capacity alleged to have been suffered by the Respondent no.3, despite the fact that the Respondent no.3 as on the date of his accident was an “Insured person” under the Employees State Insurance Act 1948 (hereinafter for brevity to be referred as the E.S.I. Act) and as per Section 53 of this Act no claim for Compensation was maintainable under the Workmen’s Compensation Act 1923 (hereinafter for brevity referred to as the W.C.Act); and also for quashing the consequent proceeding of Recovery initiated by the Certificate Officer, Patna Under the Bihar and Orissa Public Demand Recovery Act vide institution of Misc. Case no. 17 of 2002 against the petitioner.” With reference to the aforementioned 2 prayer, Mr. Alok Kumar Sinha, learned counsel for the petitioner, would submit that the respondent no.3, a workman, was covered by the benefits of Employees State Insurance Act (hereinafter to be referred to as ‘the E.S.I. Act) and as such, in terms of Section 53 thereof, he was not entitled to receive compensation under the Workmen’s Compensation Act, 1923. This Court would find that when the notices were issued to the petitioners by the Deputy Labour Commissioner cum Commissioner, Workmen Compensation, an adjournment as prayed for was allowed on the very first day of proceedings i.e. on 19.6.2001 to enable the petitioners to file its show-cause reply by 17.7.2001 but on next day itself i.e. on 17.7.2001, the proceeding was conducted ex- parte merely because the petitioners failed to appear before the Commissioner. Apparently in absence of an effective opportunity given to the petitioners, they could not raise the question of jurisdiction in terms of Section 53 of the E.S.I. Act. Counsel for the petitioner has also 3 tried to expand his submission with regard to the question of limitation and other issues but then those issues would make the impugned order amenable to an appeal and it is only the applicability of the Act under Section 53 of the E.S.I. Act which in substance would make the order without jurisdiction and thus amenable to writ jurisdiction of this Court. Counsel for the respondent no.3 who has already appeared in this case long back by filing a Vakalatnama has not chosen to file any counter affidavit and as such, it would be difficult for this Court to hold that the statement of the petitioner in paragraph nos.19 & 20 specifically asserting with regard to the respondent no.3 being subscriber of E.S.I. and the applicability of Workmen’s Compensation Act being ruled out in terms of Section 53 of the E.S.I. Act, has to be accepted as an uncontroverted Act. In that view of the matter, this Court would set aside the impugned order as contained in Annexure-1 and remit the matter back to the Deputy Labour Commissioner cum Commissioner, Workmen Compensation who would 4 only examine the question of applicability of the Workmen’s Compensation Act to the petitioners in view of Section 53 of E.S.I. Act. If the petitioner would produce cogent documentary evidence to show that the respondent no.3 was governed by and entitled to the benefits of E.S.I. Act on the date of accident irrespective of the fact as to whether the monthly E.S.I. subscription was not deducted from the salary of the respondent no.3, the Deputy Labour Commissioner would decide the aforesaid question and if the respondent no.3 is found to be governed by the provision of E.S.I. Act, his claim under Workmen’s Compensation Act would be rejected but at the same time, he would record reasons for the same so that they can be placed by the respondent no.3 for claiming compensation under the E.S.I. Act. Such an exercise by the Deputy Labour Commissioner cum Commissioner, Workmen Compensation must be completed within a period of four months from the date of receipt/production of a copy of this order. It is also made clear that in the event the Deputy Commissioner cum Commissioner, 5 Workmen Compensation would hold that the claim of the respondent no.3 for payment of compensation under the Workmen’s Compensation Act was not maintainable, in view of Section 53 of the E.S.I. Act, the respondent no.3 will have the liberty to file his claim before the E.S.I. authorities which will be disposed of on its own merits but without subjecting respondent no.3 to the rigors of limitation under the E.S.I. Act. The authorities dealing with the claim of compensation under the E.S.I. Act will always keep in mind that a period of almost nine years have been lost by the respondent no.3 and therefore, the claim of the respondent no.3 under the E.S.I. Act will be adjudicated and decided on merits and the same in no event will be rejected on the ground of delay on the part of the respondent no.3 in filing of such claim for payment of compensation under the provision of E.S.I. Act. When this part of the order was dictated, Mr. Sinha, learned counsel for the petitioner also assures this Court that the petitioners if need be will also extend help 6 to the respondent no.3 in getting his compensation under the E.S.I. Act. With the aforementioned observations, this application is allowed. Rsh (Mihir Kumar Jha, J.)