Case: Western India Plywood Ltd Vs. Shri. P. Ashokan

ESI being a welfare legislation, the Parliament could not have intended to create a bar against the workmen claiming more advantageous benefit under the Workmens Compensation Act. The Single judge of the High Court dismissed the writ petition filed by the employer but the Division Bench, in appeal, held that in view of the bar created by Section 53, the application for compensation filed by Trehan was not maintainable. This Court analysed the provisions of Section 53 of the ESI Act and observed at page 260 as follows : "In this background and context we have to consider the effect of the bar created by Section 53 of the ESI Act. Bar is against receiving or recovering any compensation or damages under the Workmens 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 persons or from any other person, ``any compensation or damages and ``under the Workmens Compensation Act, 1923 (8 of 1923), 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 the workman who is an insured person and an employee under the ESI Act to claim compensation under the Workmens 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 under the Workmens Compensation Act was not maintainable. The judgment under appeal in the present case of the Full Bench of the Kerala High Court was considered and it was observed that ``we cannot agree with some of the assumptions and observations made by the Kerala High Court. Moreover, the Kerala High Court has taken that view without referring to and considering the effect of the clear and express words used in that Section. 10. In view of the aforesaid observations in Trehans case, with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Sections 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmens Compensation Act or any other law for the time being in force or otherwise. The use of the expression ``or otherwise would clearly indicate that this Section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the legislature had thought if fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustained by him is an employment injury.11. The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalammas case (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 53 of the ESI Act, the trial Court was right in dismissing the application under Order 33 Rule 1 of the Code of Civil Procedure.12. The position in law being clear and concluded by the decision of this Court in Trehans case (supra) we see no justification for the Court not exercising its jurisdiction under Article 136, as was contended by the respondents counsel. The incorrect decision on a point of law of the High Court has to be corrected. 13. During the course of hearing it had been argued that Section 53 should not be construed in such a way that an insured person cannot raise a claim against a third party in the event of his suffering an employment injury. It was submitted that though qua the employer only one remedy may be available, namely, under the ESI Act but as far as third persons are concerned Section 53 cannot be taken up as a defence to an action in tort in a claim being made for damages because the ESI Act creates certain rights as a result of the employment qua the employer and has no application as far as third parties are concerned. In this connection it was submitted that the use of the words `employment injury in Section 53 relates to a claim which is relatable to the employment of the insured person with his employer. 14. In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case to decide this issue finally because in the instant case the claim which was sought to be made was not against the third party but against the employer itself. Perhaps this question may require consideration in an appropriate case. 15.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. In view of the aforesaid observations in Trehans case, with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Sections 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmens Compensation Act or any other law for the time being in force or otherwise. The use of the expression ``or otherwise would clearly indicate that this Section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the legislature had thought if fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustained by him is an employment injury.11. The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalammas case (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 53 of the ESI Act, the trial Court was right in dismissing the application under Order 33 Rule 1 of the Code of Civil Procedure.12. The position in law being clear and concluded by the decision of this Court in Trehans case (supra) we see no justification for the Court not exercising its jurisdiction under Article 136, as was contended by the respondents counsel. The incorrect decision on a point of law of the High Court has to be corrected.In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case to decide this issue finally because in the instant case the claim which was sought to be made was not against the third party but against the employer itself. Perhaps this question may require consideration in an appropriate case.