Calcutta High Court
Bata India Limited vs The Learned Commissioner, Workmen'S ... on 22 September, 2000
Equivalent citations: II(2001)ACC4, 2001ACJ1074, (2001)1CALLT268(HC), [2001(89)FLR525], (2001)ILLJ670CAL
Author: A. Kabir
Bench: Altamas Kabir
JUDGMENT A. Kabir, J.
1. These two appeals have been taken up together for hearing and disposal as common questions of law and fact are involved.
2. The first of the two appeals is directed against the Judgment and order dated 28th July, 1999, passed by the Commissioner for Workmen's Compensation. West Bengal, Calcutta, in Claim Case No. 154 of 1993, while the other appeal is directed against the Judgment and order dated 30th July, 1999, passed by the said Commissioner in Claim Case No. 48 of 1994.
3. In the first matter, the Commissioner held that the claimant was entitled to get compensation amounting to Rs. 37,520/- as per the amended provisions of the Workmen's Compensation Act, 1923. A similar order was passed in the second matter wherein also compensation was assessed on the basis of the amended provisions of the aforesaid Act.
4. Appearing on behalf of the appellant Company, Mr. Chunilal Ganguli submitted that by virtue of the Workmen's Compensation (Amendment) Act, 1995, section 4 of the Principal Act had been substantially amended. It was submitted that in clause (b) of sub-clause (i) for the words "fifty per cent" and "twenty-four thousand rupees", the words "sixty per cent" and "sixty thousand rupees" had been substituted. Furthermore, section 4A of the Principal Act was also amended as follows :--
"In section 4A of the Principal Act, for sub-section (3), the following subsections shall be substituted namely :--
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-
(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification in the Official Gazette, on the amount due: and
(b) If, in his opinion, there is no Justification for the delay direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty :
Provided that an order for the payment of penalty shall not be passed under clause(b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.
Explanation--For the purposes of this sub-section, "scheduled bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act. 1934 (2 of 1934).
(3-A) The interest payable under sub-section (3) shall be paid to the workmen or his dependent, as the case may be, and the penalty shall be credited to the State Government."
5. Mr. Ganguli submitted that since the amendments were not given retrospective operation, they could only be applied prospectively and the Commissioner had erred in law in applying the amended provisions in making the impugned judgment and order. It was also submitted that the appellant Company and deposited the decretal amount within the time prescribed and had not committed any default in respect thereof.
6. Mr. Ganguli pointed out that while the accident had occurred on 16th December, 1991, the amended provisions became effective on and from 15th September, 1995 and could not, therefore, have been applied to the case of the claimant.
7. Mr. Ganguli submitted that the said question was no longer res integra, having been decided by the Hon'ble Supreme Court in the case of Kerala State Electricity Board and Another v. Valsala K and Another, reported in 1998(8) SCC Page 254, wherein by relying on a decision of a four Judge Bench in the case of Pratap Narain Singh Deo v. Srinivas Sabata the Hon'ble Supreme Court held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman by the accident which arose out of and in the course of employment. Accordingly, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim.
8. The Hon'ble Supreme Court also took note of the Full Bench decision of the Kerala High Court in United India Insurance Company Ltd. v. Alavi (1998(1) K.L.T. page 951), wherein the same question was noted and it was held that the injured workman becomes entitled to get compensation the moment he suffers personal injuries of the types contemplated by the provisions of the Workmen's Compensation Act and it is the amount of the compensation payable on the date of the accident and not the amount of compensation payable on account of the amendment made in 1995, which is relevant.
9. Mr. Ganguli submitted that a Division Bench of this Court took the same view in an unreported decision dated 28th April, 1999, in F.M.A.T. No. 3840 of 1998 (The New India Assurance Company v. Ullashinai Bhowmick and Anr.) wherein following the Full Bench decision of the Kerala High Court referred to above it was observed that it is a well-settled rule of construction that no provision in a statute should be given retrospective effect unless the legislature by express terms or by necessary implication indicated that it would operate retrospectively. Accordingly, it was held that the enhanced compensation would be available only to such claims where the injury had occurred after 15th September, 1995, when the amended provisions came into play.
10. Mr. Ganguli urged that having regard to the above the impugned Judgment and order of the Court below was liable to be set aside.
11. On behalf of the claimant it was submitted by Mr. Krishanu Banik that notwithstanding the view expressed by the Hon'ble Supreme Court in the Kerala State Electricity Board case, it ultimately chose not to interfere with the impugned orders and dismissed the Special Leave Petition on account of the pettiness of the amounts involved in each case. Mr. Banik submitted that even in the instant case the disputed amount would not be more than Rs. 6,000/- and a accordingly the order impugned in these appeals were not required to be interfered with having regard to the pettiness of the amount in question.
12. Admittedly, the accident in both the cases occurred prior to the coming into operation of the amended provisions of sections 4 and 4A of the Workmen's Compensation Act, 1923. While the accident in the first case occurred on 16th December, 1991, the accident in the second case occurred on 9th February. 1993, and since the amendment which came into effect in September, 1995, was not given retrospective operation, the same could not be applied to the case of the claimants in these two cases and the learned Court below was clearly wrong in computing the assessment in each case on the basis of the amended provisions. In our view, the compensation awarded ought to have been computed on the basis of the pre-amended provisions of sections 4 and 4A of the Workmen's Compensation Act, 1923.
13. We, accordingly, allow both the appeals and direct the learned Court below to re-assess the compensation on the basis of the provisions of section 4 and 4A of the Workmen's Compensation Act, 1923, prior to their amendment by the Amending Act of 1995, and pass fresh orders accordingly in both the cases as expeditiously a possible.
There will be no order as to costs.
If an urgent xerox certified copy of this order is applied for, the same is to be supplied expeditiously subject to compliance with all the required formalities.
G. C. de, J.
14. I agree.
15. Appeals allowed