IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (WCA) No. 26 of 2006 Judgment reserved on 01.10.2009 Date of decision 15.12.2009 Hari Man …Appellant. Versus Bharat Sanchar Nigam Limited Through the Chief General Manager, Telecom, H.P. Circle and another …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting? No For the appellant: Ms. Salochana Kaundal, Advocate. For the respondents: Shri Ratish Sharma, Advocate. Dev Darshan Sud, J. This appeal has been preferred by the workman against the order of the Commissioner under the Workmen’s Compensation Act, Hamirpur challenging the award made by him partly allowing the claim made by the workman. 2. The undisputed facts are that the appellant herein was working with the respondents as a Casual Mazdoor. On 28.09.1986 while he was discharging official duties, he fell down from a pole and suffered grievous injuries for which he was treated at Civil Hospital, Hamirpur and lateron shifted to I.G.M.C. Hospital in Shimla on 01.10.1986 where he remained hospitalized till 07.01.1987 as an indoor patient. The appellant had suffered 55% permanent disability as a result of the injuries sustained by him. On the pleadings of the parties, three  Whether Reporters of Local Papers are allowed to see the judgment? Yes --2-- issues were settled. On the first issue, the Commissioner, considering the evidence on record that is PW-3 Professor Sukh Ram who proved the hospitalization of the appellant herein, the Commissioner concluded that 55% permanent disability suffered by the appellant was proved on record. 3. The appellant also brought on record Ex. D1 which is the order passed in the petition which was filed by the petitioner before the Central Administrative Tribunal, Chandigarh being O.A. No. 322/HP/90 decided on 28.11.1990 wherein he had prayed for regularization as a Class IV employee. In his corss- examination, the appellant admitted that he has been appointed as temporary mazdoor since 01.10.1986 and there is no adverse affect on his salary relatable to injury suffered by him in the accident. In these circumstances, the Commissioner allowed Rs. 34,656/- as the expenditure on medical treatment etc. incurred by the appellant. It was proved on record that the appellant was appointed as temporary mazdoor vide order dated 01.10.1989 Ex. R-1 alongwith all those who had been appointed as daily paid mazdoors before 31.3.1985. Further vide Ex. R-2 he was appointed as a regular mazdoor w.e.f. 29.2.1992. At the time when the petition was taken up by the Commissioner, the appellant was working as a telecom mechanic. 4. Learned counsel appearing for the appellant contests the correctness of the award. The appeal was admitted on two questions of law: 1. Whether the Commissioner has totally ignored the provisions of the Workmen’s Compensation Act in holding that the claimant is not entitled to --3-- compensation on the basis of the loss of disability proved on record at 55%? 2. Whether the Commissioner has erred in not awarding interest and penalty in accordance with the provisions of the Workmen’s Compensation Act? 5. On the first question, learned counsel submits that the question regarding the disability suffered by the appellant has not been considered in its true perspective by the Commissioner. 6. I have considered the rival contentions of the parties. During the course of arguments it was submitted by learned counsel appearing for the respondents that the services of the appellant have since been regularized, he submits that the injury sustained by the appellant has in no way adversely affected his earning capacity. In fact, he has been regularized against a higher post and promoted. 7. Learned counsel appearing for the respondents submits that no appeal is maintainable on the question as to whether regarding the assessment of the loss of the earning capacity. He places reliance on the judgment of the Madras High Court in New India Assurance Co. Ltd. Vs. Ponnammal and others 2005 ACJ 149, holding that: “19……………..We have already held that assessment of the loss of earning depends upon the factual materials placed before the Authority. In the light of the first proviso to section 30 of the Act, we do not find any substantial question of law for interference in these appeals. We have already referred to the fact that the appellant has not raised any other contention, except the question relating to the loss of earning capacity.” --4-- 8. Learned counsel for the appellant urges that irrespective of the fact whether the appellant was reemployed or not, would not be a bar in assessing the loss of his earning capacity. He relies upon the decision of the Orissa High Court in Executive Engineer, Nawarangpur Electrical Division versus Istpan Gonda and others 2005 ACJ 904. 9. On going through the award as a whole, I find that without going into the niceties of law, the appellant has been reengaged; his services have been regularized and he has been promoted to a higher post. In case he had been disabled from performing his duties, respondents would not have kept him in employment and promoted him. I am not pronouncing upon the question whether the appeal is maintainable or not, since I find that the Workmen’s Compensation Act being a beneficial piece of legislation, protects the interests of the Workmen and the interests of the appellant have been adequately looked after. In this case, the services of the appellant having been regularized, promotion granted and statement made by the learned counsel appearing for the respondents that his services would not be terminated on the ground of his physical incapacity sustained in the accident; in these circumstances this is a case in which interference of this court not is called for. Both the questions are, therefore, answered against the appellant. This appeal is disposed of accordingly with a direction that the services of the appellant shall not be discontinued only for the reason of his having suffered an injury in the accident subject matter of this appeal. (Dev Darshan Sud), 15th December, 2009 Judge. (virender)