IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.02.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.29862 of 2006 K.Mohandas ... Petitioner Vs. 1.The Regional Director, Regional Office-Tamil Nadu, 143,Sterling Road, Employees State Insurance Corporation, Chennai-600 034. 2.The Director, Regional Office,Bouvancare Street, Mudaliarpet, Pondicherry-600 004. 3.M/s.Swadeshi Cotton Mills, rep by Sr. Labour Welfare Officer, Pondicherry-605 004. ... Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent in reference No.55-15-14-1/05-PG, dated 24.8.2005, to quash the same and also to direct the respondents to grant all the benefits including payment of compensation, pensionary benefits and the reimbursement of amount spent by him for his medical treatment as well as the medical expenses incurred by for taking MRI scan and X-Ray and the cost of medicines amounting to Rs.12487.17 etc which the petitioner is entitled to. For Petitioner :Mr.M.A.Abdul Wahab For Respondents :Mr.K.C.Ramalingam for RR1 and 2 No appearance for R-3 O R D E R The petitioner has filed the present writ petition, seeking to challenge an order dated 24.08.2005. By the impugned order, the petitioner was informed that he was not eligible for any benefit under the E.S.I.Act as neither he was an insured person nor an employee during the period of his claim. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petition was admitted on 27.10.2006. On notice from this Court, respondents 1 and 2 have filed a counter affidavit dated 30.10.2006. 3. It is the case of the petitioner that he was in the employment of the third respondent M/s.Swadeshi Cotton Mills as a Fitter for the period from 14.07.1975 to 01.03.1988. He was also covered by the provisions of E.S.I.Act with Registration No.1466663. On 08.07.1985, when he was attending his duty in the Mill, he was subjected to an electric shock and thrown away to an adjoining machine which was in a running condition at that time. Because of the shock and accident, his health condition was badly affected. He underwent medical treatment for a long time at the E.S.I.Hospital. Since the local hospital was not having facilities, the petitioner was treated at E.S.I.Hospital Chennai. There was no improvement in his health condition and he could not work in the Mill in view of his ill health. 4. The E.S.I.Hospital directed the petitioner to be examined by the JIPMER Hospital, Puducherry and to furnish a detailed report in connected with the injuries caused to the petitioner. The petitioner was examined by the JIPMER Hospital from 22.03.1993. A CT Scan was taken and a detailed report and case sheet was submitted to the E.S.I. On 30.06.1995 and during that period, the petitioner was continuing his treatment. The JIPMER Hospital, Puducherry informed the respondents E.S.I. that the petitioner's health condition could be ascertained only by taking MRI scan and since there was no MRI scan facilities, both at JIPMER Hospital and also at Government General Hospital at Puducherry, it was advised by JIPMER to take MRI scan elsewhere. The petitioner went to the E.S.I.Hospital at Chennai and was kept as inpatient for the period from 12.07.1993 to 03.08.1993. Since there was no MRI scan facility, he was given only treatment. Due to his financial condition, he could not take MRI scan at private hospital. He was sent back to E.S.I.Hospital, Puducherry for further treatment. 5. Because of the petitioner's long absence due to ill health, he was suspended by the third respondent for the period from 12.07.1998 to 28.02.1998. During the suspension period, deduction towards E.S.I. was also done and remitted to the Local Office. The petitioner, as he could not carry out his work opted for voluntary retirement on 01.02.1998. He was relieved from the service by the third respondent with effect from 01.03.1998. Even after being relieved, he was taking continuous treatment both at JIPMER as well as in a private hospital. As his back pain had increased considerably, the petitioner was taken to the Government Hospital, Puducherry and MRI scan was done on 20.05.2005 after remitting a sum of Rs.9000/-. The Neurology Department of JIPMER, on seeing the scan gave a detailed report on 14.06.2005. The report went on the following lines: "This patient was referred to the Neurology https://hcservices.ecourts.gov.in/hcservices/ Department from the ESI Hospital. He complained of impotence and numbness of lower limbs. According to him, he had developed right testicular astrophy and impotence after he sustained accident in a machine while at work in which the external genitalia were injured. On physical examination he was confirmed to have an atrophic right testis by the urologist. He has subsequently numbness on both lower limbs L1 to S1 and S1 to S3 on the left side. Knee and ankle are sluggish but the power was normal. Nerve conduction studies in the lower limbs were normal. His MRI scan showed mild disc prolapse at L2-L3, L3-L4 levels. Mylogram showed no obstruction. MRI scan of the brain was normal. On psychiatric evaluation he was found to have depression and multiple somatic symptoms. His impotence was lumbar root disease but hormarac profile needs to be checked in view of testicualr injury, which it involved amounts to grevious injury." 6. In the light of this finding, the petitioner requested for considerable compensation as he had suffered disablement due to the accident arising in the course of his employment. It is on the request made by the petitioner, which was rejected by the impugned order. 7. In the counter affidavit filed on behalf of respondents 1 and 2, it was stated that under Regulation 103-A of the ESI Regulation 1950, entitlement to medical benefit can be done only in respect of whom contributions have been paid for not less than 78 days. The petitioner cannot link his present illness with the accident that took place in 1985 and the benefits due to the petitioner were paid as per his entitlement. The petitioner has not submitted any claim for temporary disablement benefit subsequent to 10.04.1986 and his linking the present condition with the injuries suffered in 1984 was an after thought. He is not eligible for any permanent disablement benefit. 8. In the impugned order, the only contention was that the petitioner is not an injured person. The term 'injured person' came to be considered by the Supreme Court vide its judgment reported in (2003) 2 SCC 138 [Bharagath Engg. v. R.Ranganayaki]. In paragraph 8 to 10 and 12, the Supreme Court held as follows:- "8. Section 2(14) of the Act, which is the pivotal provision, reads as follows: "‘Insured person’ means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this https://hcservices.ecourts.gov.in/hcservices/ Act." 9. It is to be noted that the crucial expression in Section 2(14) of the Act is 'are or were payable'. It is the obligation of the employer to pay the contribution from the date the Act applies to the factory or the establishment. In ESI Corpn. v. Harrison Malayalam (P) Ltd. 1 the stand of the employer that employees are not traceable or that there is dispute about their whereabouts does not do away with the employer’s obligation to pay the contribution. In ESI Corpn. v. Hotel Kalpaka International 2 it was held that the employer cannot be heard to contend that since he had not deducted the employee’s contribution on the wages of the employees or that the business had been closed, he could not be made liable. The said view was reiterated in ESI Corpn. v. Harrisons Malayalam Ltd.3 That being the position, the date of payment of contribution is really not very material. In fact, Section 38 of the Act casts a statutory obligation on the employer to insure its employees. That being a statutory obligation, the date of commencement has to be from the date of employment of the employee concerned. 10. The scheme of the Act, the Rules and the Regulations clearly spell out that the insurance covered under the Act is distinct and different from the contract of insurance in general. Under the Act, the contributions go into a fund under Section 26 for disbursal of benefits in case of accident, disablement, sickness, maternity etc. The contribution required to be made is not paid back even if an employee does not avail any benefit. It is to be noted that under Regulation 17-A, if medical care is needed before the issuance of temporary identification certificate, the employer is required to issue a certificate of employment so that the employee can avail the facilities available. “Wage period”, “benefit period” and “contribution period” are defined in Section 2(23) of the Act, Rule 2(1-C) and Rule 2(2-A) of the Rules. Rule 58(2)(b) is a very significant provision. For a person who becomes an employee for the first time within the meaning of the Act, the contribution period under Regulation 4 commences from the date of such employment from the contribution period current on that day and the corresponding benefit period shall commence on the expiry of the period of nine months from the date of such employment. In cases where employment injuries result in death before the commencement of the first https://hcservices.ecourts.gov.in/hcservices/ benefit period, Rule 58(2)(b)(ii) provides the method of computation of dependant’s benefits. It provides for computation of dependant’s benefits in the case of an employee dying as a result of employment injuries sustained before the first benefit period and before the expiry of the first wage period. 12. When considered in the background of statutory provisions, noted above, the payment or non-payment of contributions and action or non-action prior to or subsequent to the date of accident is really inconsequential. The deceased employee was clearly an “insured person”, as defined in the Act. As the deceased employee has suffered an employment injury as defined under Section 2(8) of the Act and there is no dispute that he was in employment of the employer, by operation of Section 53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that the Corporation has filed an affidavit indicating that the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons." 9. Under Rule 61 of the Employees State Insurance (Central) Rules, 1950, a retired injured person is entitled for medical benefits for himself and his spouse. But in so far as disablement benefit under Section 51(b) of the E.S.I.Act, it is mandated that a person who sustains a 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. For this purpose, there is no limitation prescribed. If an injured person is able to prove that he had suffered a permanent disablement and proved to the satisfaction of the respondents that the disablement arose out of and in the course of employment as found under Section 51(A) of the E.S.I.Act, ESI is bound to provide the permanent disablement benefit. Therefore, they cannot throw out the petitioner's application at the threshold by stating the reason found in the impugned order viz., that he is no longer an injured person. 10. In view of the above, the impugned order is liable to be set aside. Accordingly, the impugned order stands set aside. The respondents are directed to examine the petitioner in the light of his medical records and take a decision with reference to payment of permanent disablement benefit in accordance with law. This exercise shall be undertaken within a period of three months from the date of receipt of a copy of this order. The result shall be communicated to the petitioner without fail. https://hcservices.ecourts.gov.in/hcservices/ 11. The writ petition stands allowed to the extent indicated above. No costs. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar svki To 1.The Regional Director, Regional Office-Tamil Nadu, 143,Sterling Road, Employees State Insurance Corporation, Chennai-600 034. 2.The Director, Regional Office, Bouvancare Street, Mudaliarpet,Pondicherry-600 004. +1cc to Mr.M.A.Abdul Wahab, Advocate Sr 14629 +1cc to Mr.K.C.Ramalingam, Advocate Sr 15138 DM(CO) km/18.3. W.P.No.29862 of 2006 https://hcservices.ecourts.gov.in/hcservices/