IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.01.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.6133 of 2003 K.Kasinathan ... Petitioner vs. 1.The Presiding Officer cum II Additional District Judge, Labour Court, Pondicherry. 2.M/s.Servo Packaging Ltd., 88/1, Pondy-Cuddalore Road, Kattukuppam, Pondicherry. ... Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records on the file of the first respondent in proceedings I.D.No.55 of 2001 dated 30.10.2002 and quash the same and direct the second respondent to reinstate the petitioner with full backwages from 28.11.1999 with all attendant benefits including continuity of service. For Petitioner : Mr.N.R.Rajagopalan For Respondents : Mr.T.P.Manoharan for R2 R1-Labour Court O R D E R The petitioner has filed this writ petition for issuance of a writ of certiorarified mandamus calling for the records on the file of the first respondent in Award I.D.No.55 of 2001 dated 30.10.2002 and to quash the same and further also to direct the second respondent to reinstate the petitioner with full backwages from 28.11.1999 with all attendant benefits including continuity of service. 2. The writ petitioner, a permanent employee of the second respondent/Company was employed as a Winder. On 07.12.1998 during night shift at about 04.15 hours, when an extruder at third Goddef being moved by mechanical power, he fell down between the Goddet Rollers and suffered multiple grievous injuries including head injuries. He was treated initially at General Hospital, Pondicherry https://hcservices.ecourts.gov.in/hcservices/ and shifted to General Hospital at Chennai on 08.12.1998. He underwent a major Splenectonmy operation for multiple injuries and remained as inpatient till 22.12.1998. Further, he was referred to Arthur Eye Nursing Home, Pondicherry and Mahatma Gandhi Dental Hospital, Pondicherry for ENT treatment. 3. The petitioner got himself insured under the Employees State Insurance Scheme with Police No.1304279. He was referred to the Medical Board of E.S.I Hospital Pondicherry and was in receipt of Subsistence Allowance till 28.11.1999 and a preliminary fitness certificate was issued on 28.11.1999 and he submitted the same to the second respondent/Company on 29.11.1999. The Medical Board of E.S.I., on 26.02.2002 issued a final assessment certificate declaring his disability as permanent and recommended light works to the petitioner. 4. The case of the petitioner is that he approached the second respondent to provide him a lighter job as per the recommendation of the Medical Board but the second respondent had not offered any explanation for his non employment and also had not issued any letter terminating his service, he issued a legal notice on 01.07.2000 but no reply was given. Even in the conciliation proceedings, the second respondent/company had not taken part. Since the conciliation failed the matter was referred as Industrial Dispute before the first respondent/Labour Court, Pondicherry. 5. The stand of the second respondent/Company is that the injuries sustained by the petitioner on 07.12.1998 were due to his own negligence and that they provided medical assistance and the petitioner left the work place even without informing the officer of the second respondent/Company and there was no light work available with them and that the petitioner had voluntarily abandoned the service. 6. Before the first respondent/Labour Court on the side of the writ petitioner, Exs.A1 to A8 were marked and no one was examined as a witness on either side. Further no exhibits were also marked on the side of the second respondent. 7. The first respondent/Labour Court on an examination of documents, Exs.A1 to A8 marked on the side of the writ petitioner and taking note of the rival stand projected by the respective parties opined that "as per the Employees State Insurance Act, the petitioner has got right to get necessary benefits in case of permanent disablement and the petitioner has to work out his remedy only by approaching the concerned authority for payment of compensation relating to the permanent disability sustained by him due to employment injuries, etc., and further that the Labour Court cannot compel the respondent/Management to give a light work to the petitioner and the petitioner has to work out his remedy by claiming https://hcservices.ecourts.gov.in/hcservices/ compensation under Section 51 of the Employees' State Insurance Act, 1948 and Regulations 76-A and 76-B of the Employees State Insurance (General) Regulations 1950 and passed an award of dismissing the Industrial Dispute without costs. 8. Being aggrieved against the award passed by the first respondent in I.D.No.55 of 2001, the petitioner has projected this writ petition. 9. The learned counsel for the petitioner urges before this Court that the Award of the first respondent in I.D.No.55 of 2001 dated 30.10.2002 is clearly an erroneous and unsustainable one in the eye of law and as a matter of fact, the first respondent/Labour Court has totally misconstrued the relief sought for by the petitioner and proceeded on an erroneous assumption and over simplification of the matter without even adverting to any of the important issues that arise for consideration and on an erroneous approach by the first respondent/Labour Court has vitiated the award passed by it and added further, when the Medical Board of the E.S.I. Hospital, Pondicherry issued a final assessment certificate which speaks off the permanent disablement of the petitioner and recommended a light work to the petitioner then it is for the second respondent/Company to provide a light work to the petitioner, but in the present case on hand, the second respondent/Company has not offered any work to the petitioner and later the petitioner has been perforced to issue a legal notice dated 01.07.2000 to the second respondent for which no reply has been sent by the second respondent/Company and indeed the petitioner both in the legal notice as well as in the claim petition has sought only the relief of re-employment with backwages and that apart, the re- employment can be claimed by the petitioner only from the second respondent/Company and not from the Employees State Insurance Corporation and in short, the first respondent/Labour Court has committed a material irregularity when it has come to the conclusion wrongly that the petitioner has to work out his remedy by claiming compensation under Section 51 of the Employees State Insurance Act, 1948 and Regulations 76-A and 76-B of the Employees State Insurance (General) Regulations 1950 and therefore prays for allowing the writ petition in the interest of justice. 10. In response, the learned counsel for the second respondent/Company contends that the first respondent/Labour court has taken into account of the facts and circumstances of the case in a conspectus fashion and it has rightly held that the writ petitioner has to work out his remedy by claiming compensation as per Section 51 of the Employees State Insurance Act and Regulations 76-A and 76-B of the Employees State Insurance (General) Regulations 1950 and since there is no material irregularity or patent illegality in the award passed by the first respondent/Labour Court, the same need not be interfered by this Court sitting in the writ jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ 11. This Court has paid its anxious consideration to the arguments advanced on either side and noticed the same. 12. At this stage, it is useful to refer to the contents of exhibits marked on the side of the writ petitioner before the first respondent/Labour Court. In Ex.A1, xerox copy of the Accident Report from the employer in Form 16 Regulation 68, it is mentioned that the accident has taken place on 07.12.1998/04.15 hours and the petitioner commenced his work at 22.00 hours and on 07.12.1999, at about 22.00 hours, the petitioner has reported for work and under the caption "Brief description of the accident", it is mentioned that the petitioner was drawing tape in third goddet, and unfortunately he fell down between goddet rollers and got Injury on Head. In the said Form, it is also made mention of by the second respondent/Company that the petitioner has to be paid wages in full or payable to him on the date of accident and further he has been described as employer under Section 2(9) of the E.S.I. Act, on the day of accident and further more contribution has to be paid by him on the day when the accident has occurred. 13. Ex.A2 dated 08.12.2002 is the photo copy of the Discharge Summary in respect of the petitioner. A perusal of the same indicates that he has been admitted on 08.12.1998 and that he has been discharged on 22.12.1998 and that he received multiple injuries, Splenectomy. In Ex.A2, it is mentioned that alleged n/o machine injury at work place at about 4 p.m. On 08.12.1998. Ex.A3 is the xerox copy of the letter dated 25.01.1999 addressed by the Medical Superintendent of the E.S.I. Hospital, Gorimedu, Pondicherry to the Manager of the E.S.I. Corporation, Mudaliarpet, Pondicherry-4 which relates to the Regularisation of leave in respect of the petitioner, I.P.No.13042749. In the said letter, it is mentioned that the petitioner was suffering from 'Head Injury' and took treatment at Madras for the period from 07.12.1998 to 22.12.1998 as inpatient, due to employment injury on 7.12.1998 and that the leave availed by the I.P. for the above period shall be treated as sick leave and the same shall be regularised upto 30.1.1999 and further treatment of leave should be by the concerned specialist EYE, ENT, SURGERY DEPT. by Government General Hospital, Pondicherry (undergone splenectomy). 14. As a matter of fact, a perusal of Ex.A4 the xerox copy of the letter dated 22.7.99 of the Medical Superintendent, E.S.I. Hospital, Gorimedu, Pondicherry addressed to the Deputy Director (ESI), Health & Family Welfare Department, Mudaliarpet, Pondicherry-5 shows that the petitioner has been suffering from multiple injuries Splenectomy ........ and that he has taken treatment at E.S.I. Hospital, Gorimedu/Govt. General Hospital, Pondicherry/JIPMER Hospital, Pondicherry and as an inpatient he has been advised specialist treatment/C.T.Scan/M.R.I. Scan at higher institution and necessary permission NOC may be issued to him for taking treatment at https://hcservices.ecourts.gov.in/hcservices/ General Hospital, Chennai, ESI Hospital, Ayyanavaram, Chennai or any other recognised higher institution by the ESI Corporation, Chennai whichever is beneficial at the earliest and also it has been certified that no specialist treatment/C.T.Scan/M.R.I. Scan facility is available in the ESI Hospital, Gorimedu, Pondicherry. 15. From Ex.A5 Injury Report by Insurance Medical Officer of the Employees State Insurance Corporation dated 02.08.1999 in respect of the petitioner, it transpires from the Medical Report that his general health was gc good and nature of injury was a grievous one and probable cause was asphyxia due to fall down in between godder rollers. 16. In Ex.A6, xerox copy of Regulation 73 of the Employees State Insurance Corporation dated 26.02.2000, the Medical Board has summarised the findings in respect of the petitioner which runs as follows:- (i)Patient admitted in the Government General Hospital, Pondicherry on 07.12.98 for multiple injury with suspected Head Injury (HI). (ii)He was referred to Government General Hospital, Chennai. DOA-08.12.98 and DOD-22.12.98. Patient underwent Splenectomy operation at General Hospital, Chennai for multiple injuries. (iii)Patient is an anti convulsant drugs since then. Present Neuro opinion-Normal. (iv)Then he was treated as out-patient in MGDCH (Dental College, Pondicherry for fracture mandible from 18.1.99 to 16.2.99. Light work recommended. 17. The petitioner in his legal notice dated 01.07.2000 addressed to the Deputy Manager (P&A) of the second respondent/Company has inter alia stated that as per the recommendation of the Medical Board, the second respondent is bound to offer a light job to him with the respective salary but the same was not provided by the Government and therefore the said act of non employment of the petitioner is illegal and in violation of the established principles of law and has prayed for the monthly salary from 28.11.1999, the date when the petitioner produced his fitness certificate till such date the second respondent reemploys him. 18. The fact that light work recommended to the petitioner by the Medical Board of the Employees State Insurance Corporation is not in dispute. But however the contention of the second respondent is that the Company offered the petitioner the original work on 29.11.1999 but the petitioner has not chosen even to try the said work and left unreported and thereafter there has been no response from the petitioner and therefore the Company presumed that the petitioner has voluntarily abandoned his duty and therefore his name has been removed from the roll and as such the petitioner is not entitled to claim any benefits as per the Common Law principle of 'No https://hcservices.ecourts.gov.in/hcservices/ Work No Pay' and added further, the second respondent/Company has no light work as mentioned in the fitness certificate but the second respondent has always been ready to offer the employment to the petitioner in which he worked as Winder earlier. 19. At this stage, this Court pertinently points out the ingredients of Section of the Employees' State Insurance Act, 1948 which enjoins as follows:- 51. Disablement benefit:- Subject to the provisions of this Act (***)- a) a person who sustains temporary disablement for not less than three days (excluding the day of accident), shall be entitled to periodical payment (at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government); (b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment (at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government). 20. The disablement benefit as per Section 51 of the Employees State Insurance Act is in the form of a periodical payment of an injured individual, whose eligibility to the benefit is certified by an Insurance Medical Officer as per Regulation. Certainly, the benefit is payable whether there is disablement as a result of an Employment injury sustained as an Employee under this Act. 21. It is to be borne in mind that the claim for commutation of periodic payment of disablement benefits does not attract the doctrine of Estoppel under Section 115 of the Indian Evidence Act. 22. Also the Regulations 76-A and 76-B of the Employees' State Insurance (General) Regulations, 1950 enjoins thus:- 76-A.(Submission of claims for permanent disablement benefit).-An insured person who has been declared to be permanently disabled by a Medical Board or by an Appeal Tribunal shall submit, by post or otherwise, to the appropriate (Branch Office) a claim, covering, except in the case of a first payment, a period of one or more complete calendar months in (Form 14) for claiming permanent disablement benefit. 76-B.Commutation of permanent disablement benefit:-(1) An insured person whose permanent disablement has been assessed as final and who has been awarded permanent disablement benefit at a rate https://hcservices.ecourts.gov.in/hcservices/ not exceeding (Rs.5.00) per day may apply for commutation of permanent disablement benefit into a lumpsum: Provided that the insured person whose permanent disablement has been assessed as final and the benefit rate exceeds (Rs.5.00) per day may also apply for commutation of permanent disablement benefit into lumpsum subject to the condition that the total commuted value of the lumpsum permanent disablement benefit does not exceed (Rs.30,000) at the time of commencement of final award of his permanent disability. Provided further that cases falling under clause (3) of this regulation where commutation has been refused because the insured person did not have average expectation of life, shall not be re-opened.) (2) Where such an application is made within 6 months of the date on which he can opt for commutation hereafter called the "date of possible option" (permanent disablement benefit) shall be commuted into a lumpsum. (3) Where such an application is made after expiry of six months from the date of possible option, the (permanent disablement benefit) may be commuted into a lumpsum if the Corporation is satisfied that the insured person has an average expectation of life for his age. For this purpose, the insured person shall, if so required by the appropriate office, present himself for examination by such medical authority as the Director-General may, by general or special order, specify. (4) For the purpose of this regulation, the date of possible option shall mean- (i) in the case of a person who, on the date on which this regulation comes into force, is in receipt of permanent disablement benefit covered by sub- regulation (1) the date of coming into force of this regulation; (ii) in the case of any other insured person, the date on which assessment of permanent disablement covered by sub-regulation(1), is communicated to him by the appropriate Regional Office. (5) The amount of lump sum admissible under this regulation shall be determined by multiplying the daily rate of (permanent disablement benefit) by the figure indicated in Column 2 of Schedule III to these regulations, corresponding to the age on last birthday of the insured person on the date on which https://hcservices.ecourts.gov.in/hcservices/ his application for commutation is received in the appropriate office and on and from the date (the permanent disablement benefit) shall cease to be payable to him: (Provided that where no proof of age has been submitted as required by the appropriate office or if submitted, has not been accepted as satisfactory by the appropriate office, the corresponding age as aforesaid of the insured person shall be the age as estimated by the Medical Board on the date of examination adjusted by the period intervening between the date of examination by the Medical Board and the date on which the application for commutation was received in the appropriate office: Provided further that the age so estimated by the Medical Board shall also operate against any proof of age that may be submitted after the time allowed for the purpose to the insured person by the appropriate office before reference of his case to the Medical Board) 23. Also, it is to be noted that to claim the benefit of commutation of periodic payments of permanent disablement benefit under Regulation 76(B), two conditions ought to be satisfied. (i)Permanent disablement must have been assessed as final and (iii) Permanent disablement benefit must have been awarded at the rate prescribed. To put it differently the insured person who satisfies the aforesaid two conditions will be eligible for commutation of the periodical payments, provided of course, the application is made within the prescribed time. Continuing further whether or not the insured person desires to prefer an appeal as per Section 54A(2) of the Act, the Corporation is under an obligation to commute periodical payments of permanent disablement benefits, provided the conditions and requirements of Regulation 76-B are satisfied. In short, an insured person cannot be denied the right to claim commutation in case he desires to prefer an appeal until the decision is rendered by the Appellate Authority. 24. Be that as it may, on a careful consideration of respective contentions and taking note of the fact that the petitioner has suffered an employment injury due to the accident which has arisen in the course of his employment with the second respondent/Company on 07.12.1998, bearing in mind the overall assessment of the facts and https://hcservices.ecourts.gov.in/hcservices/ circumstances of the case, in a qualitative and conspectus fashion, this Court comes to an inevitable conclusion that the writ petitioner is entitled to claim the disablement benefit as per Section 51 of the Employees' State Insurance Act and further Regulation 76-B of the Employees' State Insurance Act speaks of conditions of permanent disablement benefits to which the petitioner is legitimately and legally entitled to and as such the petitioner can seek his remedy of claiming the disablement benefit and suffice it for this Court to state that the petitioner is not entitled to claim the relief prayed for by him in his claim petition I.D.No.55 of 2001 wherein he has prayed for re-employment as per the recommendation of the Employees' State Insurance Authorities with full backwages from 28.11.1999 and viewed from any angle, the writ petition is devoid of merits and the same fails. 25. In the result, the writ petition is dismissed leaving the parties to bear their own costs. It is open to the petitioner to claim his relief of Disablement Benefits as per the Employees' State Insurance Act, 1948 coupled with the Employees State Insurance (General) Regulation 1950, in the manner known to law if so advised, before the competent forum. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri To 1.The Presiding Officer cum II Additional District Judge, Labour Court, Pondicherry. 2.M/s.Servo Packaging Ltd., 88/1, Pondy-Cuddalore Road, Kattukuppam, Pondicherry. 1 cc To Mr.G.Sridharan, Advocate, SR.3374. 1 cc To Mr.T.P.Manoharan, Advocate, SR.3073. W.P.No.6133 of 2003 LA(CO) RVL 28.01.2010 https://hcservices.ecourts.gov.in/hcservices/