IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.08.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.815 of 2002 The Management M/s.Jothi Calendering Mills 42, Vivekananthar Nasianur Main Road Erode - 9 ... Appellant Vs. 1) Perumal 2) Employees State Insurance Corporation Ltd., Rep. by its Regional Director (Tamil Nadu and Pondicherry) 35, Sterling road, Chennai - 34 ... Respondents (2nd Respondent impleaded as per order dated 1.8.2008 in CMP.No.1092/2008) This Civil Miscellaneous Appeal is filed under Section 30 of the Workmen's Compensation Act, 1925 to set aside the order dated 31.01.2002 (served on 07.03.2002) made in W.C.No.230 of 1999 on the file of Commissioner for Workmen's compensation and Deputy Commissioner of Labour, Salem. For Appellant : Mr.N.Manoharan For Respondents : Mr.D.Hariparanthaman (R1) Mrs.Jayakumari (ESI Corpn) J U D G M E N T C.M.P.No.1092/2002 is allowed vide separate order and the Employee's State Insurance Corporation represented by its Regional Director (Tamil Nadu and Pondicherry), Chennai 600 034 is impleaded as the second respondent. 2. Heard the submissions made by Mr.N.Manoharan, learned counsel appearing on behalf of the appellant and Mr.D.Hariparanthaman, learned counsel appearing on behalf of the https://hcservices.ecourts.gov.in/hcservices/ first respondent and Mrs.Jayakumari, learned counsel appearing on behalf of the second respondent (newly impleaded party). 3. The management of Jothi Calendering Mills, 42, Vivekananthar Salai, Nasianur Main Road, Erode - 9 has preferred the Civil Miscellaneous Appeal under Section 30 of the Workmen's Compensation Act, 1925, challenging the award passed by the Deputy Commissioner of Labour, Salem in his capacity as Commissioner for Workmen's compensation on 31.01.2002 in W.C.No.230 of 1999 directing the said management to pay a sum of Rs.48,801/- as compensation for the employment injuries sustained by the first respondent herein in an accident that arose in the course of and out his employment under the appellant management on 16.02.1999. The award of the Commissioner for Workmen's Compensation is challenged solely on the ground that the claim under the Workmen's Compensation Act is not maintainable because, the employee, namely the first respondent herein, at the relevant point of time was covered by the provisions of the Employees' State Insurance Act, 1948. The learned counsel for the appellant drawing the attention of this court to Section 53 of the Employees' State Insurance Act, 1948 contends that an employee to whom the provisions of the Employees' State Insurance Act are applicable can make claim for the benefits under the said act alone and is not entitled to claim compensation under the Workmen's Compensation Act. 4. In support of his contention, the learned counsel for the appellant has cited a judgment of Madhya Pradesh High Court between Pandu d/o Shri Uma charan Mishra & Others and Divisional Manager of M.P.State Road Transport Corporation & Others reported in 1999-III-LLJ (Supp) 28, a judgment of a learned single of this court in K.Hamza and another Vs. M/s.Emitici Engineering Limited, Post Box No.1, Ennore Thermal Power Station, Madras 600 057 reported in 2000 (IV) CTC 614 and a judgment of the Hon'ble Supreme Court in A.Trehan V. M/s.Associated Electrical Agencies and another. 5. In all the above cited judgments it has been clearly held that Section 53 of the Employees' State Insurance Act provides a total bar to make a claim under the Workmen's Compensation Act. The learned counsel for the first respondent/employee would contend that since contribution to the ESI Corporation was not paid during the relevant period for the first respondent/employee, he could not get the benefits under the ESI Act and hence it should be held that he is not barred from making a claim under the Workmen's Compensation Act. The judgment of the Hon'ble Supreme Court, cited supra, is the answer to the said contention raised by the learned counsel for the first respondent. The relevant portions of the judgment of the Supreme Court in which Section 53 of the ESI Act before amendment and after amendment has also been extracted is reproduced hereunder:- https://hcservices.ecourts.gov.in/hcservices/ " Two other provisions in the ESI Act to which it is necessary to refer are Sections 53 and 61. The present Section 53 was substituted by Act No.44 of 1960 with effect from 28th January, 1968. Section 61 has been there in the Act since it came into force. It provides that when a person is entitled to any of the benefits provided by the ESI Act he shall not be entitled to receive any similar benefits admissible under the provisions of any other enactment. Thus, by enacting Section 61, the Legislature has created a bar against receiving similar benefits under the enactments. Section 53 before its amendment read as under: "53. Disablement and dependent's benefits:- When an insured person is or his dependents are entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or otherwise, in respect of an employment injury sustained by the insured person as are employee under this Act, then the following provisions shall apply, namely:- (i) The insured person shall, in lieu of such compensation or damages, receive the disablement benefit provided by this Act, (but subject otherwise to the conditions specified in the Workmen's Compensation Act, 1923) from the Corporation and not from any employer or other person. (ii) to (iv) (v) Save as modified by this Act, the obligations and liabilities imposed on an employer by the Workmen's compensation Act, 1923, shall continue apply to him." 9. Experience of the administration of the ESI Act had disclosed certain difficulties in its working. It was, therefore, further amended in 1966. Along with other amendments made in the ESI Act, the Legislature substituted present Section 53 which read as under: "Section 53. Bar against receiving or recovery of compensation or damage under any other law. - An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insurer person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury, sustained by the insured person as an employees under this Act." https://hcservices.ecourts.gov.in/hcservices/ 10. The Workmen's Compensation Act was enacted by the Legislature in 1923 with a view of provide for the payment by certain classes of employers to their workmen compensation for injury by accident. Section 3(1) of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions contained in that Act. Under Section 2 (1)(c) word compensation is defined to mean compensation as provided for by the Act. The definition of the workman under the Act is as under: "Workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is - (i) ....... (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependents or any of them." 11. A comparison of the relevant provisions of the two Acts makes it clear that both the Act provide for compensation to a workman/employee for personal injury caused to him by accident arising out of and in the course of his employment. The ESI is a later Act and has a wider coverage. It is more comprehensive. It also provides for more compensation than what a workman would get under the Workmen's Compensation Act. The benefits which an employee can get under the ESI Act are more substantial than the benefits which he can get under the Workmen's Compensation Act. The only disadvantage, if at all it can be called a disadvantage, is that he will get compensation under the ESI Act by way of periodical payments and not in a lump sum as under the Workmen's Compensation Act. If the Legislature in its wisdom thought it better to provide for periodical payments rather than lump sum compensation its wisdom cannot be doubted. Even if it is assumed that in this behalf it was open to the Legislature to take away or modify that right. While enacting the ESI Act the intention of the Legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident arising out and and in the course of his employment. https://hcservices.ecourts.gov.in/hcservices/ 12. In this background and context, we have to consider the effect the bar created by Section 53 of the ESI Act. Bar is against receiving or recovering any compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute as can be seen from the use of the words shall not be entitled to receive or recover, "whether from the employer of the insured person or from any other person". "any compensation or damages" and "under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise". The words employed by the legislature" are clear and unequivocal. When such a bar is created in clear and express terms, it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision. IN view of the clear language of the Section, we find no justification in interpreting or construing it as not taking away the right of workman who is an insured person and an employee under the ESI Act to claim compensation under the Workmen's Compensation Act. We are of the opinion that the High Court was right in holding that in view of the bar created by Section 53, the application for compensation filed by the appellant under the Workmen's Compensation Act was not maintainable." 6. In yet another judgment of the Hon'ble Supreme Court between Bharaqgath Engineering and R.Ranganayaki and Another, reported in 2003-I-LLJ 558, the Hon'ble Supreme Court explained the term insured person as found in Section 2(14) of the ESI Act and held that the payment or non-payment of contribution in respect of the particular employee was inconsequential. The Hon'ble Supreme Court has also held that insured person is a person who is or was an employee in respect of whom contributions are or were payable under the Act and who is, by reason thereof, entitled to any of the benefits provided by the act. It has also been observed that the crucial expression in Section 2(14) of the Act was "are or were payable" will mean that it is the obligation of the employer to pay the contribution from the date of application of E.S.I.Act to the factory or the establishment and that benefits are to be conferred on the employees from the date when the contribution becomes payable. 7. The contention of the appellant herein that the industrial establishment concerned in this appeal was one covered by the provisions of the ESI Act has not been disputed by the ESI Corporation (the second respondent herein). It is not the case of either the first respondent or the ESI Corporation that the first respondent was an exempted employee or a person who did not come in the definition of an employee under the Employees' State https://hcservices.ecourts.gov.in/hcservices/ Insurance Act, at the relevant point of time, namely when the accident occurred. The above said observation of the Hon'ble Supreme Court will be enough to accept the contention of the learned counsel for the appellant and reject the contention of the learned counsel for the first respondent. 8. Under these circumstances, this court accepts the contention of the learned counsel for the appellant that the first respondent was an insured employee and hence he could claim benefits under the ESI Act alone and not under the Workmen's Compensation Act. 9. In view of the above, the appeal succeeds and the award of the Commissioner for Workmen's Compensation dated 31.01.2002 made in W.C.No.230 of 1999 is hereby set aside. There shall be no order as to costs. However, it is made clear that the first respondent shall be entitled to claim the benefits under the ESI Act from the second respondent. 10. It is brought to the notice of this court that the appellant deposited the entire amount awarded as compensation by the Commissioner for Workmen's Compensation and the first respondent was allowed to withdraw 25,000/- out of the said amount. The appellant is hereby permitted to withdraw the balance amount. The first respondent shall refund a sum of Rs.25,000/- withdrawn by him from the amount deposited by the appellant herein within a period of three months from today. The appellant management shall submit a claim form to the ESI Corporation with relevant documents within a period of two weeks from today and the ESI Corporation shall consider the same and dispose of the same in accordance with law within a period of two months thereafter. ssr Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Commissioner for Workmen's compensation and Deputy Commissioner of Labour, Salem. 1 cc to Mr.N.Manoharan, Advocate, SR.42352 1 cc to Mr.D.Hariparanthaman, Advocate, SR.42119 1 cc to Mr.S.Jayakumar, Advocate, SR.42619 KA (CO) dv/17.9. C.M.A.No.815 of 2002 https://hcservices.ecourts.gov.in/hcservices/