Andhra HC (Pre-Telangana)
Tavati Srinivas @ Srinu S/O Pullaiah And ... vs Smt.N.Padmavathi W/O Nageswar Rao And ... on 25 November, 2013
HONOURABLE SRI JUSTICE A.V.SESHA SAI C.R.P.No.4910 OF 2013 25-11-2013 Tavati Srinivas @ Srinu S/o Pullaiah and another. Petitioners Smt.N.padmavathi W/o Nageswar Rao and two others. Respondents Counsel for the Petitioners: Sri P.Prabhakara Rao Counsel for the second Respondent: Sri E.Venugopal Reddy <GIST: >HEAD NOTE: ? Cases referred (1986) 2 SCC 614 2(1976) 3 SCC 71 HONOURABLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4910 of 2013 O R D E R:
The applicants in W.C.No.28 of 2011 on the file of the Commissioner for Employees Compensation and Assistant Commissioner of Labour at Suryapet, Nalgonda District are the petitioners in the present revision filed under Article 227 of the Constitution of India. The order dated 19.08.2013 passed by the learned Assistant Commissioner, dismissing I.A.2/2012, is under challenge in the present revision.
2. Heard Sri P.Prabhakara Rao, learned counsel for the petitioners and Sri E.Venugopal Reddy, learned counsel for the second respondent apart from perusing the material available on record.
3. Despite service of notice by substitute service by way of paper publication, none appears for the first respondent. Petitioners herein filed W.C.No.28 of 2011 on the file of the Commissioner for Employees Compensation and Assistant Commissioner of Labour at Suryapet, Nalgonda District, seeking compensation of Rs.4,45,420/- with interest @ 24% per annum following the death of their son on 24.04.2010 in a road accident. In the said W.C.No.28 of 2011 petitioners filed the present I.A.No.2 of 2012, seeking permission of the Commissioner to enhance the amount of compensation from Rs.4,45,420/- to Rs.6,69,110/- in addition to Rs.5,000/- towards funeral expenses. Resisting the said application, the second respondent Insurance Company filed a counter stating that the said application is not maintainable and the amendment published on 31.05.2010 cannot be made applicable to the case of the petitioners herein as the incident took place on 24.04.2010. The learned Commissioner by way of an order dated 19.08.2013 rejected the said request made by the petitioners herein for amendment.
4. Calling in question, the validity and legal acceptability of the said order passed by the Commissioner, the present revision has been filed.
5. It is contended by the learned counsel for the petitioners that the order under challenge in the present revision is erroneous, contrary to law, irrational and opposed to the very spirit and object of the provisions of Employees Compensation Act, 1923 ( hereinafter called the Act). It is further argued by the learned counsel for the petitioners that the order passed by the Commissioner is cryptic and unsupported by any reasons. It is further submitted by the learned counsel for the petitioners that since the accident in the instant case took place on 24.04.2010 i.e., after the advent of the amendment Act 45/2009 dated 18.01.2010, the Commissioner herein went wrong in dismissing the application. It is also submitted by the learned counsel for the petitioners herein that the petitioners herein are also entitled for Rs.5,000/- towards funeral expenses. It is also argued by the learned counsel that had the contents of the petition filed by the petitioners herein been taken into consideration, the order impugned in the revision would not have emanated.
6. Per contra, it is vehemently contended by the learned counsel for the second respondent/Insurance Company that as the date of accident in the instant case is 24.04.2010 and as it is crucial for awarding compensation, petitioners herein are not entitled for the relief in the present revision. It is further argued by the learned counsel that the learned Commissioner is perfectly justified in rejecting the request of the petitioners as the Central Government issued notification on 31.05.2010 i.e., much subsequent to the death of the petitioners son and that the said notification is only prospective in operation.
7. In the above background, now the issue that boils down for consideration of this Court is Whether the Commissioner for Workmen Compensation is justified in rejecting the request of the petitioners herein for amendment of quantum of the compensation and whether the order passed by the Commissioner requires any correction by this Court under Article 227 of the Constitution of India?
8. In order to appreciate the rival contentions and for the purpose of examining the sustainability of the impugned order, this Court deems it appropriate to refer to the relevant provisions of the Act and the amendments made by virtue of Act No.45/2009 to the extent of the relevance to the present case.
9. The unamended provisions of Section 4 of the Workmens Compensation Act, 1923 read as under:
1[4. Amount of compensation. (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(a) Where death results from the injury.
an amount equal to [fifty per cent.] of the monthly wages of the deceased workman multiplied by the relevant factor;
or an amount of [eighty thousand rupees]], whichever is more;
(b) Where permanent total disablement results from the injury.
an amount equal to [sixty per cent.] of the monthly wages of the injured workman multiplied by the relevant factor;
or an amount of [ninety thousand rupees]], whichever is more;
Explanation I.For the purposes of clause (a) and clause (b) relevant factor in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.
Explanation II.Where the monthly wages of a workman exceed 6[four thousand rupees], his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be 7[four thousand rupees] only;
(c) Where permanent partial disablement result from the injury.
(i) in the case of an injury specified in Part II of Schedule 1, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by thequalified medical practitioner) permanently caused by the injury;
Explanation I.Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II.In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in schedule I.
(d) Where temporary disablement, whether total or partial results from the injury.
a half monthly payment of the sum equivalent to twenty-five per cent of monthly wages of the workman, to be paid in accordance with the provisions of sub-section (2).
1[(I-A) Notwithstanding anything contained in sub-section (l), while fixing the amount of compensation payable to a workman is respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the workman in accordance with the law of that country.] (2) The half-monthly payment referred to in clause (d) of sub- section (I) shall be payable on the sixteenth day
(i) from the date of disablement where such disablement lasts for a period of twenty-eight days or more, or
(ii). After the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty- eight days; and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter:
Provided that
(a) there shall be deducted from any lump sum or half-monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be; and
(b) no half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident.
Explanation.Any payment or allowance which the workman has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso.
(3) On the ceasing of the disablement before the date on which any half-monthly payment falls due there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.] 1[(4) If the injury of the workman results in his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of 2[two thousand and five hundred rupees] for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.]
10. The Government of India brought in amendments to the said enactment by way of Act No.45/2009 with effect from 18.01.2010. The name of the Act is also changed now as the Employees Compensation Act, 1923. The amended provisions of Section 4 by virtue of the said enactment read as under:
4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-
-
(a) where death results an from the injury : amount equal to fifty per cent. of the monthly wages of the deceased [employee] multiplied by the relevant factor; or an amount of [one lakh and twenty thousand rupees], whichever is more;
(b) where permanent total disablement results from the injury :
an amount equal to sixty per cent. of the monthly wages of the injured [employee] multiplied by the relevant factor; [one lakh and twenty thousand rupees], whichever is more; [Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).] Explanation I.--For the purposes of clause (a) and clause (b), "relevant factor", in relation to a [employee] means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the [employee] on his last birthday immediately preceding the date on which the compensation fell due.
Explanation II .- Omitted by
(c) where permanent partial disablement result from the injury:
(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I.--Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II.--In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
(d) where temporary disablement, whether total or partial, results from the injury :
a half monthly payment of the sum equivalent to twenty-five per cent. of monthly wages of the [employee], to be paid in accordance with the provisions of sub-section (2). (1A) Notwithstanding anything contained in sub-section (1), while fixing the amount of compensation payable to a [employee] is respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such [employee] in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the [employee] in accordance with the law of that country.] [(1B) The Central Government may, by notification in the Official Gazette, specify, for the purposes of sub-section (I), such monthly wages in relation to an employee as it may consider necessary.] (2) The half-monthly payment referred to in clause (d) of sub- section (1) shall be payable on the sixteenth day --
(i) from the date of disablement where such disablement lasts for a period of twenty-eight days or more, or
(ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty-eight days; and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter:
Provided that--
(a) there shall be deducted from any lump sum or half-monthly payments to which the [employee] is entitled the amount of any payment or allowance which the [employee] has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be; and
(b) no half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly wages of the [employee] before the accident exceeds half the amount of such wages which he is earning after the accident.
Explanation.--Any payment or allowance which the [employee] has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso.
[(2A) The employee shall be reimbursed the actual medical expenditure incurred by him for treatment of injuries caused during course of employment.] (3) On the ceasing of the disablement before the date on which any half-monthly payment falls due there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.
(4) If the injury of the [employee] results in his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of [not less than five thousand rupees] for payment of the same to the eldest surviving dependant of the [employee] towards the expenditure of the funeral of such [employee] or where the [employee] did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.] [Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount specified in this sub-section.]
11. It would be clear from the above provisions of law that as per Section 4 (1) (a) of the Act when death results from the injury, the dependants are entitled for the amount equivalent to 50% of the monthly wages of the deceased workman multiplied by the relevant factor on an amount of Rs.80,000/- whichever is more. As per explanation 2 of the unamended provisions where the monthly wages of workman exceeds Rs.4,000/-, his monthly wages for the purposes of Clauses (a) and (b) shall be deemed to be Rs.4,000/- only. The said stipulation is conspicuously absent in the amended provisions of Section 4 which came into being from 18.01.2010. But as per Section 4 of the amended Act the Central Government by way of a notification in the Official Gazette is empowered to specify such monthly wages as it may consider necessary for the purpose of sub-section (1). Admittedly, in the instant case, the Union of India published a notification in the Gazette of India dated 31.05.2010 under Section 4 (1B) of the Employees Compensation Act, 1923, specifying Rs.8,000/- as monthly wages. As per the said notification the claimants under the Act are entitled to have the monthly wages of the deceased employee calculated in the light of the said notification.
12. In the instant case, the petitioners herein admittedly filed the main W.C.No.28 of 2011 on 19.03.2013, claiming compensation of Rs.4,45,420/- calculating the minimum wages @ Rs.4,000/-. It is also an admitted fact that son of the petitioners died in an accident on 24.04.2010 i.e., subsequent to the advent of the amended provisions i.e., 18.01.2010. It is an admitted reality that the present legislation brought in by the Union of India is a welfare legislation intended for the purpose of safeguarding the workman and his/her dependants in the event of unforeseen incidents. Therefore, the provisions of the said legislation are required to be interpreted in a harmonious manner, keeping in view the said object behind the legislation. It is to be noted at this juncture that even though the amended provisions by virtue of Amendment Act 45/2009 came into being with effect from 18.01.2010, which include 4 (1)(b) of the Act and it authorizes and empowers the Union of India to issue a notification indicating the quantum of monthly wages. The Union of India issued a notification on 31.05.2010. As stated above the petitioners son passed away on 24.04.2010 i.e., in between the date of advent of the amended provisions and the date of notification. Therefore, the petitioners herein cannot be non-suited for no fault of them. It is also an admitted fact that as on the date of death of the petitioners son, the explanation (ii) to Section 4 (1) which prescribed the maximum amount of Rs.4,000/- was not in existence as such the said figure cannot be made applicable. It is also a fact that the Commissioner is authorized to decide the issue and fix the compensation basing on the material available on record. Therefore, there is neither any rational nor any justification on the part of the Commissioner to deny the benefit of claiming the amount as per the amended provisions. It is ultimately for the Commissioner to fix the quantum of compensation. It is also to be noted that except recording the contentions, the learned Commissioner did not undertake any exercise nor recorded any reasons for deciding the issue. In the considered opinion of this Court, the approach of the Commissioner towards the issue is highly unreasonable and being a quasi judicial authority the learned Commissioner ought to have recorded the reasons for denying the request. It is a settled and cardinal principle of law that any order passed by a quasi judicial authority should necessarily be supported by reasons. In the absence of assigning the reasons, the very intention of the legislature in conferring jurisdiction on the quasi judicial bodies would be frustrated.
13. It is the contention of the learned counsel for the second respondent that the benefit under the Gazette Notification No.1047 dated 31.05.2010 cannot be extended to the cases where the cause of action arose prior thereto. This contention, in the considered opinion of this Court, is neither sustainable nor tenable nor is it reasonable. Creation of such ambiguous situation by any stretch of imagination cannot be inferred as the intention of the legislature. By necessary implication it should be construed harmoniously that the amendment is applicable to the cases where the accident took place between the date of advent of amendment Act i.e., 18.01.2010 and the date of notification issued by the Union of India i.e., 31.05.2010 under Section 4 (1B) of the Act also. This beneficial social legislation shall be interpreted liberally and for the welfare of the beneficiaries and not for the destruction of their rights conferred by the legislature.
14. In this context, it may appropriate to refer to the judgments of the Honble Supreme Court in BHARAT SINGH v. MANAGEMENT OF NEW DELHI TUBERCULOSIS CENTRE, NEW DELHI AND OTHERS and RUSTON & HORNSBY (I) LIMITED v. T.B.KADAM Ps.6 wherein the Honble Supreme Court dealt with the retrospective operation of the provisions of the Industrial Disputes Act.
15. In BHARAT SINGH (supra 1), the Honble Apex Court at paragraphs 10 and 11, held as follows:
10. The objects and reasons give an insight into the background why this Section was introduced. Though objects and reasons cannot be the ultimate guide in interpretation of statutes, it often times aids in finding out what really persuaded the legislature to enact a particular provision. The objects and reasons here clearly spell out that delay in the implementation of the awards is due to the contests by the employer which consequently cause hardship to the workmen. If this is the object, then would it be in keeping with this object and consistent with the progressive social philosophy of our laws to deny to the workmen the benefits of this Section simply because the award was passed, for example just a day before the Section came into force? In our view it would be not only defeating the rights of the workman but going against the spirit of the enactment. A rigid interpretation of this Section as is attempted by the learned Counsel for the respondents would be rendering the workman worse off after the coming into force of this Section. This section has in effect only codified the rights of the workmen to get their wages which they could not get in time because of the long drawn out process caused by the methods employed by the Management. This Section, in other words, gives a mandate to the Courts to award wages if the conditions in the Section are satisfied.
11. In interpretation of statutes, Courts have steered clear of the rigid stand of looking into the words of the Section alone but have attempted to make the object of the enactment effective and to render its benefits unto the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the Courts. Section 17-B on its terms does not say that it would bind awards passed before the date when it came into force. The respondents' contention is that a Section which imposes an obligation for the first time, cannot be made retrospective. Such sections should always be considered prospective. In our view, if this submission is accepted, we will be defeating the very purpose for which this Section has been enacted. It is here that the Court has to evolve the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under review. We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the intention of the legislature is not clear from the words or where two constructions are possible, it is the Court's duty to discern the intention in the context of the background in which a particular Section is enacted.
Once such an intention is ascertained the Courts have necessarily to give the statute a purposeful or a functional interpretation. Now, it is trite to say that acts aimed at social amelioration giving benefits for the have not should receive liberal construction. It is always the duty of the Court to give such a construction to a statute as would promote the purpose or object of the Act. A construction that promotes the purpose of the legislation should be preferred to a literal construction. A construction which would defeat the rights of the have not and the underdog and which would lead to injustice should always be avoided. This Section was intended to benefit the workmen in certain cases. It would be doing injustice to the Section if we were to say that it would not apply to awards passed a day or two before it came into force.
16. In RUSTON & HORNSBY (I) LIMITED (supra 2), the Honble Apex Court at paragraph 6, held as follows:
6. The first argument on behalf of the appellant is that the incident took place in December 1963 and the order of dismissal was made on the 7th January 1964 and as Section 2A of the Industrial Disputes Act came into force on 1-12-
1965 the reference of this dispute under Section 10 of the Industrial Disputes Act read with Section 2A is bad. It is argued that this will amount to giving retrospective effect to the provisions of Section 2A. We are not able to accept this contention. Section 2A is in effect a definition section. It provides in effect that what would not be an industrial dispute as defined in Section 2(k) as interpreted by this Court would be deemed to be an industrial dispute in certain circumstances. As was pointed out by this Court in Chemical & Fibres of India Ltd. v. D.G. Bhoir and Ors. C. A. Nos. 1633-1644 of 1973, decided on 2-5-1975 the definition could as well have been made part of Clause (k) of Section 2 instead of being put in as a separate section. There is therefore no question of giving retrospective effect to that section in making the reference which resulted in the award under consideration. When the section uses the words "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman"
it does not deal with the question as to when that was done. It refers to a situation or a state of affairs. In other words where there is a discharge, dismissal, retrenchment or termination of service otherwise the dispute relating to such discharge, dismissal, retrenchment or termination becomes an industrial dispute. It is no objection to this to say that interpretation would lead to a situation where the disputes would be reopened after the lapse of many years and referred for adjudication under Section 10. The question of creation of new rights by Section 2A is also not very relevant. Even before the introduction of Section 2A a dispute relating to an individual workman could become an industrial dispute by its being sponsored by a labour union or a group of workmen. Any reference under Section 10 would be made only sometime after the dispute itself has arisen. The only relevant factor for consideration in making a reference under Section 10 is whether an industrial dispute exists or is apprehended. There cannot be any doubt that on the day the reference was made in the present case an industrial dispute as defined under Section 2A did exist. Normally the dispute regarding an individual workman is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The change made by Section 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrial dispute. Supposing in this very case a labour union or a group of workmen had sponsored the case of the respondent before the reference was made, such a reference would have been valid. All that Section 2A has done is that by legislative action such a dispute is deemed to be an industrial dispute even where it is not sponsored by a labour union or a group of workmen. What a labour union or a group of workmen can do the law is competent to do. The only question for consideration in considering the validity of a reference is whether there was or apprehended an industrial dispute when the reference was made. If there was an industrial dispute or an industrial dispute was apprehended, even though the facts giving rise to that dispute might have arisen before the reference was made the reference would still be valid. It is to be borne in mind that every reference would be made only sometime after the dispute has arisen. In Birla Brothers Ltd. v. Modak ILR 1948 2 Gal. 209 it was pointed out that though the Industrial Disputes Act came into force in 1947, reference of an industrial dispute based on the facts which arose before that Act came into force is a valid reference. The same reasoning would apply to a reference of a dispute falling under Section 2A even though the facts giving rise to that dispute arose before that section came into force. The decision in Birla Brothers case (supra) was approved by this Court in its decision in Jahiruddin v. Model Mills Nagpur 1956 I LLJ 430. These two decisions clearly establish that the test for the validity of a reference under Section 10 is whether there was in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S.N. Kaul : (1969)IILLJ186Del , by the Punjab & Haryana High Court in Shree Gopal Paper Mills Ltd. v. The State of Haryana 1968 Lab. I.C. 1259. The view of the High Court of Mysore in P. Janardhana Shetty v. Union of India :
(1970)IILLJ738 Kant to the contrary is not correct.
17. Therefore, the contention that the benefits conferred under the Gazette Notification dated 31.05.2010 are only prospective and cannot be extended to the cases where the cause arose between the amendment Act and the notification dated 31.05.2010 can neither be approved nor sustained and the said contention deserves to be repulsed and rejected.
18. For the aforesaid reasons and having regard to the nature of controversy and keeping in view the intention of the legislature in enacting the Employees Compensation Act, 1923, the revision is allowed and consequently I.A.No.2 of 2012 in W.C.No.28 of 2011 on the file of the Commissioner for Employees Compensation and Assistant Commissioner of Labour at Suryapet, Nalgonda District stands allowed. As a sequel, pending miscellaneous petitions, if any, shall stand disposed of. No order as to costs.
______________ A.V.SESHA SAI, J Date:25.11.2014