IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.02.2009 CORAM THE HON'BLE Mr. JUSTICE S.PALANIVELU C.M.A.No.943 of 2003 Employees State Insurance Corporation Ltd 100, Cross Cut Road, Gandhipuram, Coimbatore ... Appellant/1st Respondent Vs. 1. N. Marappan ..1st Respondent/Petitioner 2. The Management M/s. Ganapathy Engineering Manufacturers Company Ltd., Ganapathy Post, Coimbatore ... 2nd Respondent/2nd Respondent This civil miscellaneous appeal has been filed under Section 82 of ESI Act, 1948 to set aside the decree and judgment of the Employees State Insurance cum Labour Court, Coimbatore passed in E.S.I.O.P.No.36 of 2001 dated 17.08.2001. For Appellant : Mr.K.C.Ramalingam For Respondents : Mr.A. Sivaji [for R-1] J U D G M E N T 1. The following averments are found in the petition filed by the first respondent, filed under section 75 (e) and (g) of the Employees' State Insurance Act, 1948: 1.(i) The petitioner was employed as porcelain moulder in the second respondent company as a permanent worker. On 21.12.1991, at about 5.00 p.m., while he was in employment, he met with an accident. While he was working in Hydraulic Press at Procelain Section, he suffered crush injury in his left hand and was immediately removed to Sri Ramakrishna Hospital, Coimbatore. On 25.12.1991, the crushed parts of the left hand were removed and the left hand was amputated below elbow. The permanent disablement is due to the amputation below elbow of the left hand. The petitioner's E.S.I. Number is 51- 1402359. He submitted accident report in Form 16 (Regulation 68) on 21.12.1991 itself to the first respondent (ESI Corporation). He approached the E.S.I. Local office, for sanction of permanent https://hcservices.ecourts.gov.in/hcservices/ disablement benefit. Since they refused, he sent letters through Trade Union, namely, National Labour Organisation on 23.06.1992. On 30.06.1992 a reply was sent by the Corporation that he was not an employee under Section 2(9) of the E.S.I. Act on the date of accident i.e., on 21.12.1991. By means of a letter dated 3.7.1992 the Management also sent a letter to him that he was not employee as per Section 2(9) of the E.S.I. Act, as his monthly wages exceeded Rs.1,600/- per month since 1.4.1991. 1.(ii) His contribution period was from 1.10.1990 to 31.03.1991 and his benefit period was between 1.7.1991 and 31.12.1991. Accident took place on 21.12.1991 within the benefit period. He was provided with sickness benefit and hence he is also eligible for disablement benefit. Hence the Management may be directed to send the petitioner to Medical Board for assessing the loss of earning capacity due to the injury caused to him in the course of the employment on 21.12.1991, to declare him that he is entitled for permanent partial disablement and also to sanction permanent partial disablement benefit from the date of accident i.e, from 21.12.1991. 2. In the counter filed by the first respondent (Corporation)the following are stated: 2.(i) It is true that the petitioner is an employee. But it is not admitted that he sustained injuries in the course of the employment. No doubt the petitioner is entitled all medical benefits in case if he suffers any injury in the course of the employment and not otherwise. As on 21.12.1991 he cannot be termed to be an employee as per Section 2(9) of the E.S.I. Act. On the date of the alleged accident, he was drawing a salary of Rs.1600/- per month. Hence he will not come under the definition of Section 2(9) of the E.S.I. Act, and so he is not entitled for disablement benefit. From 1.4.1991 onwards his salary exceeded Rs.1600/- per month, he is not eligible for disablement benefit, since he was working as an employee on 1.4.1991 and the accident occurred on 21.12.1991. As he was not an employee as defined under Section 2 (9) of E.S.I. Act., no question to refer him to the Medical Board would arise. Hence the petition has to be dismissed. 2.(ii) In the Counter filed by the Corporation, it is stated that the petitioner is not entitled for any benefit from this respondent and if he is eligible, he has to claim the same from his Management. This respondent is not a necessary party to this petition. The petition is not maintainable as far as this respondent is concerned. 3. After considering the pleadings and oral evidence on record, the authority below viz., the Employees State Insurance Court cum Labour Court, Tribunal, (Labour Court), Coimbatore allowed the application and the order is under challenge before this Court. 4. It is not debatable that the first respondent is an employee under the second respondent Management and he suffered the employment injury during the course of the employment on 21.12.1991. But his https://hcservices.ecourts.gov.in/hcservices/ very entitlement to get the disablement benefit under the E.S.I. Act is much disputed. Concededly, the contribution period was from 1.10.1990 to 31.3.1991 and the benefit period commences on 1.7.1991 and ended with 31.12.1991 and in the meanwhile, on 21.12.1991 the accident took place, resulting in the amputation of the first respondent's left hand below elbow. 5. It is the back-bone contention of the appellant that he is not at all entitled to the disablement benefit since he would not come under the purview of Section 2(9) of E.S.I. Act. The second respondent, in addition to this plea, also contends that since his salary exceeded Rs.1,600/- with effect from 01.04.1991 and the accident has been taken place on 21.12.1991, he could not get disablement benefit. 6. Learned Presiding Officer of the Labour Court, placed reliance upon the decision reported in 2001 (1) LLJ 1662 [Regional Director, Employees' State Insurance Corporation v. M. Ganesan] and held that even though the employee has crossed the stage of his salary exceeding the statutory ceiling, since he suffered injury during the benefit period, he has to be made eligible for getting disablement benefit. 7. A decision in 1988 (1) LLN 688 [Tirupur Textiles (P) Ltd., Ammapalayam, Tirupur v. E.S.I. Corporation (By the Regional Director, Madras) and other] an identical view has been expressed. 8. As far as the availability of sickness benefit is concerned, there is no quarrel between the parties. It has been held in 2001 (2)KLT 115 [E.S.I. Corporation v. Ouseph]. 9. The learned counsel for the respondent placed reliance upon a decision of the Kerala High Court in 2007-III-LLJ 1076 [E.S.I. Corporation v. Suresh Babu] wherein the learned single Judge has held that even though if an employee was drawing salary, which exceeds the limit prescribed by the Act, if he suffered injury during the benefit period he was covered employee. The relevant portion of the Judgment is as follows: "3. ... ... the respondent also did not dispute the fact that on the date of accident he was drawing more than Rs.3,000/- as salary. But according to him, in view of proviso to Section 2(9) of the E.S.I. Act, he is entitled to get the disablement benefit. Till September 30, 1994 the respondent was a covered employee. The salary was increased only from October 1, contribution period was from April 1, 1994 to June 30, 1995. As already found, the accident occurred on May 16, 1995, which was within the benefit period. So, the fact that there was increase in the salary as the date of accident was not a ground to reject the claim put forward by the appellant. The order passed by the Insurance Court does not call for any interference and I confirm that order." https://hcservices.ecourts.gov.in/hcservices/ 10. This Court on 09.02.2009, in an order passed in C.M.A.No.2806 of 2002 [The Deputy Regional Director, E.S.I.C. Ltd., Coimbatore v. Chinnasamy and another], has decided that when it is shown that the employee ceases to be an "employee" for the purpose of the Act and could not be brought within the purview of Section 2(9) of the Act, when his statutory limit of salary exceeds the limit during the contribution period, he could not claim disablement benefit, on the strength of the Division Bench decision of this Court reported in 2003 (II) LLJ 895 [Employees' State Insurance Corporation (rep. by Regl. Director), Chennai and M.Ganesan]. The relevant portion in the Judgment goes thus: "10. For claiming the disability benefit, it is a pre- condition that the employment injury should have been sustained at a time when the person was an employee. The fact that such an employee had made contribution during the preceding contribution period and would be entitled to the sickness, maternity and other benefits provided under the other sub-clause of Section 46(1) would not on that score enable that employee to claim the disability benefit as well for an employment injury sustained during the benefit period. To hold otherwise would do violence to the clear language employed in Section 46(1)(c). A person who crosses the prescribed wage limit after the commencement of a contribution period is deemed to be an employee till the end of that contribution period and not beyond. Though he is allowed to enjoy certain benefits during the corresponding benefit period he does so not as an 'employee', but as a person who was an employee during the relevant contribution period. An employment injury sustained during such benefit period, when he had ceased to be an employee on account of crossing the prescribed wage limit and the contribution period during which he crossed the wage limit also having ended, will not be an injury sustained by him as an 'employee'. Disability benefit would not become payable to such a person." 11. Following the principles set out in the Division Bench decision of this Court, it is held that as the salary of the first respondent had crossed the statutory limit much earlier to the date of accident, he is not entitled to receive the disablement benefit. Such being the position, the order impugned, passed by the learned Presiding Officer of the Labour Court is not sustainable and has to be necessarily disturbed, which is accordingly set aside. https://hcservices.ecourts.gov.in/hcservices/ 12. In view of the above, the Civil Miscellaneous Appeal deserves to be allowed and accordingly it is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ggs To The Presiding Officer, Employees State Insurance Court, (Labour Court), Coimbatore. +1cc to Mr.K.C.Ramalingam, Advocate Sr 6104 +1cc to Mr.A.Sivaji, Advocate Sr 6157 KM(CO) km/25.2. C.M.A.No.943 of 2003 https://hcservices.ecourts.gov.in/hcservices/