Bharath Gold Mines Ltd. vs Hanuman And Ors. on 11 March, 1992

[Cites 9, Cited by 0]

Karnataka High Court

Bharath Gold Mines Ltd. vs Hanuman And Ors. on 11 March, 1992

Equivalent citations: 1(1994)ACC439

Bench: N. Venkatachala

JUDGMENT
 

 N. Venkatachala, J.

1. These are the appeals filed under Section 30 of the Workmen's Compensation Act, 1923 (for short 'me Act') by Bharath Gold Mines Ltd., K.G.F. (for short 'the employer'), against the awards made by the Commissioner for Workmen's Compensation, Kolar District (for short 'the Commissioner'), awarding compensation to the workmen of the employer on premature termination of their services by reason of occupational disease, silicosis, contracted by them in the course of their employment. The respondent in each of these appeals is the workman concerned. As the employment of the workmen involved their exposure to the inhalation of dust containing silica, they contracted the occupational disease, silicosis, listed as occupational disease in Part C of Schedule III to the Act. The contracting of occupational disease, silicosis, by each workman made his employer to treat that disease as an injury arising out of an accident and in the course of his employment and to terminate his service between the year 1979 and the year 1982. When there was a demand made by each workman concerned on the termination of his services by the employer for compensation payable to him with reference to date of termination of his service, the employer refused to concede to his demand. It is such refusal which led the workmen to file applications before the Commissioner claiming from the employer compensation payable to them under the said Act with reference to the date on which the service of each of them was terminated. On equities held by the Commissioner on those applications, he made the awards. Under those awards, the employer is made liable to pay compensation to each workman based on his wages drawn during the year when he was initially found to have contracted the occupational disease, silicosis, and not with reference to the wages he drew on the date of termination of his service due to contracting of that disease. A penalty of 50 per cent on the amount of compensation which was said to be payable, but not paid, is imposed on the employer as per each award. It is also said in each award that the compensation shall be paid by the employer as per the provisions of the Amendment Act, 1976, though earlier it was held that the compensation was payable to workmen with reference to the date on which such workmen had contracted the occupational disease, silicosis. Feeling aggrieved by the awards so made by the Commissioner, the employer has challenged their validity by filing against them the present appeals under Section 30 of the Act. That is how we are required to examine the common question arising in these appeals, to wit, as to how, under the Act, the liability for compensation of the employer to the workman due to termination of his service on his contracting occupational disease, silicosis, has to be assessed.

2. As it would be advantageous to refer to the material provisions of the Act which provide an answer to the said question requiring our examination, they shall be adverted to.

3. Clause (c) of Sub-section (1) of Section 2 of the Act defines 'compensation' as meaning compensation as provided for in the Act. Clause (e) thereof defines 'employer' as including any body of persons whether incorporated or not. Clause (1) thereof defines' total disablement' as meaning disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. Clause (m) thereof defines 'wages' as including any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment. Clause (n) thereof defines 'workman' as meaning, among others, any person who is employed on a monthly wages not exceeding Rs. 1,000/-. Section 3(1) of the Act, which provides for employer's liability for compensation, reads:

Sub-section (2-A) of Section 3 reads:

Occupational                           Employmen
Diseas

Silicosis                  Any employment involving exposure
                           to the inhalation of dust containing silica. 
 

Section 4(1)(b), which provides for the amount of compensation, reads:

Schedule IV (see Section 4)) reads:

Monthly                   Amount of Compensation          Half-monthly
wages of the                      for:                    payment as
workman                   Death        Permanent          compensation
injured                                total              for temporary
                                       disablement        disablement

1 2 3 4

More      But not
Than      more than
Rs.       Rs.             Rs.          Rs.                Rs.
  0        60             7,200       10,080              Half his monthly
                                                          wages
 60        90             9,720       14,608               36.00
 90       120            11,520       16,128               42.00
120       150            13,500       18,900               48.75
150       200            16,800       23,520               60.00
200       300            18,000       25,200               82.50
300       400            19,200       26,880              100.00
400       500            21,000       29,400              118.00
500       600            21,600       30,240              135.00
600       700            23,100       32,340              148.75
700       800            24,000       33,600              160.00
800       900            27,000       37,800              168.75
900     1,000            30,000       42,000              175.00

4. Section 5 of the Act, which provides for method of calculating wages, reads:

5. (a) where the workman has, during a continuous period of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation, the monthly wages of the workman shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period;

(b) where the whole of the continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the workman shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a workman employed on the same work by the same employer, or, if there was no workman so employed, by a workman employed on similar work in the same locality;

(c) in other cases including cases in which it is not possible for want of necessary information to calculate the monthly wages under Clause (b), the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is lable to pay compensation, divided by the number of days comprising such period.

Explanation-A period of service shall, for the purposes of this Section, be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.

5. We shall now see how under the aforesaid provisions the claim for compensation made by each workman-respondent here should have been dealt with by the Commissioner.

6. It is not disputed that the service of each respondent-workman was terminated because of his total disablement for work on account of the occupational disease, silicosis, he contracted due to the exposure to the inhalation of dust containing silica in the course of his employment. It is also not in dispute that each workman suffered personal injury due to the occupational disease contracted by him by reason of accident arising out of and in the course of his employment and the employer was liable to pay compensation to him under Chapter II of the Act for the premature termination of his service. While the liability of the employer to pay compensation to each workman arises under Sub-section (1) of Section 3 read with Sub-section (2-A) of Chapter II of the Act, that the actual compensation amount, which became liable to be paid to him, had to be computed as provided for under Section 4(1)(b) read with Schedule IV, is not disputed. Again, monthly wages, which should have formed the basis for calculating the amount of compensation payable to the workman, are what was earned by him immediately preceding the accident, such time in each of the instant cases being the date of actual termination of service of the workman due to contracting by him of the occupational disease. Therefore, the amount of compensation payable to each workman-respondent should have been assessed according to the above provisions and determined.

7. Unfortunately, the Commissioner, in calculating the amount of compensation payable to the workman-respondent in each of the appeals, for premature termination of his service due to his total disablement for work on accourt of his contracting occupational disease, silicosis, has ignored the aforesaid provisions of the Act which clearly provide for quantification of amount of compensation payable in any of such cases. The Commissioner, as is seen from his award, has proceeded to determine the amount of compensation payable to the workman in the instant cases, with reference to the date on which each of the workmen, for the first time, contracted the occupational disease, silicosis, while such basis is not traceable to any provision in the Act. Then, he has contradicted himself by holding that the compensation is payable to the workman concerned under the Amendment Act, 1976, as per the terms of contract. Further, he has imposed on the employer the penalty of 50 per cent of the amount of compensation. Interest on the amount of compensation is made payable to the workman by the employer from the date on which each workman was first found to have contracted occupational disease, while the same is not envisaged under any of the provisions of the Act.

8. In the said circumstances, the awards of the Commissioner appealed against by the employer in the present appeal are liable to be set aside treating them as those made ignoring the provisions of the Act. However, we cannot dispose of these appeals finally by calculating the amount of compensation which becomes liable to be paid by the employer to each of the workman for want of particulars needed in finding out his monthly wages, in accordance with the provisions contained under Section 5 of the Act. Though opportunity was afforded to the employer to produce the particulars of all the benefits which were being given to each workman by it during the period of 12 months immediately preceding the date of the accident, that is, in the instant cases, the respective dates on which the workmen's services came to be terminated, the same was not made available. When such material is unavailable before us, there is no possibility for us to decide the amount of compensation payable to the workmen and dispose of these appeals finally. The complaint made on behalf of the workmen that for nearly a decade they are not paid by the employer the amount of compensation which they were legitimately entitled to get under the Act, cannot be brushed aside. In the totality of circumstances of the workmen's claims cases in appeals, we feel that ends of justice would be met if we set aside the awards under appeals and remit the cases to the Commissioner with a direction to him to dispose of the cases within three months from 30th March, 1992, on which date we direct the appellant or his representative and the respondents or their representatives to be present before the Commissioner to take further instructions in the matter of disposal of the cases remitted. As there cannot be any dispute that the compensation amount, which may become liable to be paid to the workmen, has to be paid together with interest at 6 per cent per annum as provided for under Sub-section (3) of Section 4-A of the Act, from the date it fell due, the same has to be ordered to be paid when the Commissioner makes his awards. It is needless to point out that if the amounts of compensation, which were liable to be paid to the workmen under the Act, had remained unpaid on the due dates, it shall be the duty of the Commissioner to examine the question of penalty which may be imposed upon the employer for non-payment of such amounts, if they are not of a trivial nature. Hence, our direction here would be that in the event the Commissioner comes to the conclusion that the amounts of compensation payable under the Act to the workmen had not been paid for a long time after they had become due, he shall, after affording an opportunity to the employer to show cause as to why penalty should not be imposed as provided for under Sub-section (3) of Section 4-A of the Act, make such order as may be justified.

9. In the result, we allow these appeals, set aside the awards of the Commissioner appealed against and remit the cases under appeals to the Commissioner for disposal within a period of three months from 30th March, 1992 on which date we direct the parties to be present before the Commissioner without any further notice from him in the matter of disposal of these cases.. He is further directed to dispose of these appeals in the light of this judgment and in accordance with law after affording adequate opportunity to the parties to adduce evidence and have their say in the matter.

10. Having regard to the facts and circumstances of the cases, the employer-appellant is directed to furnish the particulars of wages of each of the workman (respondents in these appeals) before the Commissioner on 30th March, 1992, itself so as to enable the Commissioner to proceed to dispose of the cases before him expeditiously.

11. If any amounts are already deposited by the appellant before the Commissioner, which, according to the employer, are due to be paid to the workmen, the same shall be disbursed to the workman concerned immediately, which amount, of course, will have to be taken and given deduction in directing payment of the balance of the amount of compensation, if any, payable by the employer.

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