Gujarat High Court
Employees State Insurance Corporation vs Lalsing Sadiya Garasiya on 2 July, 2018
Equivalent citations: AIRONLINE 2018 GUJ 100
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/2374/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2374 of 2015
With
R/FIRST APPEAL NO. 2375 of 2015
With
R/FIRST APPEAL NO. 2376 of 2015
With
R/FIRST APPEAL NO. 2377 of 2015
With
R/FIRST APPEAL NO. 2378 of 2015
With
R/FIRST APPEAL NO. 2379 of 2015
With
R/FIRST APPEAL NO. 2380 of 2015
With
R/FIRST APPEAL NO. 2381 of 2015
With
R/FIRST APPEAL NO. 2382 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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EMPLOYEES STATE INSURANCE CORPORATION
Versus
LALSING SADIYA GARASIYA
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Page 1 of 49
C/FA/2374/2015 JUDGMENT
Appearance:
MR SACHIN D VASAVADA(3342) for the PETITIONER(s) No. 1,2
MR GM JOSHI(370) for the RESPONDENT(s) No. 2
MS SHILPA R SHAH(796) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/07/2018
COMMON ORAL JUDGMENT
1. Since the issues raised in all the captioned first appeals are the same and the disposal of one first appeal would govern the disposal of all other connected first appeals, those were heard analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the First Appeal No.2374 of 2015 is treated as the lead matter.
3. This first appeal under section 82 of the Employees' State Insurance Act, 1948 is at the instance of the Employees State Insurance Corporation-original respondent and is directed against the judgment and order dated 26th February, 2015 passed by the Employee's State Insurance Court, Vadodara in the ESI Application No.16 of 2008.
4. The facts giving rise to this first appeal may be summarized as under;
4.1 The respondent No.1-preferred an application under section 52-A of the Employees' State Insurance Act, 1948 (for short "the Act, 1948") read with Schedule-III-C, Entry No.1 of the Act, 1948 for compensation from the year 2003 on the Page 2 of 49 C/FA/2374/2015 JUDGMENT ground of having contracted occupational disease, namely, silicosis. The respondent No.2 in this appeal is the employer. The respondent No.1-original applicant was working in a cement factory. The case put up by the respondent No.1- original applicant before the ESI Court was that as he was working in the crushing plant of the cement factory and such other sections where various chemicals and minerals like Dolomite, Silica, Quarry etc. are being crushed for the purpose of manufacturing of the cement, he, as a result, was continuously exposed to the fine particles of the minerals present in the atmosphere. Due to inhalation of such mineral particles, the respondent No.1-workman contracted a dreaded disease known as "Silicosis" making it difficult for the respondent No.1- to survive. In such circumstances, he preferred an application addressed to the Corporation with the necessary materials with a prayer to take appropriate steps in accordance with law for appropriate compensation. It appears from the materials on record that the Corporation failed to proceed further in accordance with the provisions of the Act, 1948. The Corporation did not refer the respondent No.1- workman to the Medical Board for medical examination. In such circumstances, the respondent No.1-workman had to prefer appropriate application in the ESI Court seeking relief of 100% compensation for the permanent total disablement payable for lifetime.
4.2 The ESI Court, for the purpose of adjudication of the application filed by the respondent No.1-workman, framed the following issues vide Exh.19;
"(1) Whether the applicant proves that, he was working in the establishment of the respondent No.3 from Page 3 of 49 C/FA/2374/2015 JUDGMENT January, 2002 to December, 2003?
(2) Whether the applicant proves that, the opponent No.3 was his employer and he was the employee?
(3) Whether the opponent proves that, the ESI Act, 1948 is not applicable to the opponent No.3?
(4) Whether only for the reason that the opponent No.3 had not paid the contribution, this Court does not have the jurisdiction to adjudicate this application?
(5) Whether the opponent proves that, the applicant has not contracted Silicosis during his service in the establishment of the opponent No.3?
(6) Whether the applicant proves that, due to the occupational diseases Silicosis he has suffered 100% permanent physical disablement?
(7) Whether the applicant is entitled to seek compensation as per the provisions of ESI Act having suffered total disablement on account of contracting Silicosis from the year 2003?
(8) Whether the applicant is entitled to receive 100% compensation with 12% interest for the permanent total disablement payable for lifetime?
(9) Whether as per the provisions of the ESI Act 1948 the applicant is entitled to the handicap benefit/ compensation hereinafter every month?
(10) Whether the applicant is entitled to the costs from the opponents jointly and severally?
(11) What final orders?"
4.3 The issues framed by the ESI Court, referred to above, came to be answered as under;
"1) In the affirmative.Page 4 of 49
C/FA/2374/2015 JUDGMENT
2) In the affirmative.
3) In the negative
4) In the negative
5) In the negative
6) In the affirmative
7) In the affirmative
8) Partly in the affirmative
9) In the affirmative
10) In the affirmative
11) As per the final orders."
4.4 The ESI Court, after due consideration of the entire matter, allowed the application and declared that the respondent No.1-workman, having contracted silicosis, is entitled to compensation from the year 2007 at the rate of 8% interest. The operative part of the order passed by the ESI Court, reads as under;
"1) The application by the applicant is allowed.
2) It is hereby held that the applicant in this matter Lalsingh Sadiya Garasiya has suffered occupational diseases 'Silicosis, and due to this 100% handicap of the applicant is declared. The applicant becomes entitled to handicap benefit compensation as per the provisions of ESI Act, 1948 from the year 2007. The applicant is entitled to handicap benefit/ compensation and costs from the opponent Nos. 1 and 2 jointly. It is hereby ordered to pay 8% interest jointly to the applicant on the entitled compensation.
3) These orders to be implemented within 30 days.
4) The opponent Corporation is also ordered to pay Rs. 1000/- [rupees one thousand only] towards the costs of this application by the applicant. "
4.5 Being dissatisfied with the judgment and order passed by the ESI Court, the Corporation has preferred this first appeal Page 5 of 49 C/FA/2374/2015 JUDGMENT under section 82 of the Act, 1948, formulating the following substantial questions of law;
"(a) In facts of the present case and in view of the ESI Act, Rules and Regulations made thereunder, WHETHER IT IS OPEN FOR the ESI Court to assess the disability without referring the matter to the Special Medical Board consisting expert doctors?
(b) In facts of present case and in view of the ESI Act, Rule and Regulations, WHETHER the ESI Court is right and justified in granting 100% of the permanent disability without examining any doctors/ expert and erred in not referring to the statutory provisions of ESI Act?
(c ) Whether it is right and justified by ESI Court to ignore the statutory provisions viz. Section 52A to be read with the Schedule appended to the Law and the rules and regulations framed with regard to the constitution of Special Medical Board to diagnose the alleged disease and to pass the order burdening the Appellant Corporation with huge liability for which the Corporation was not at all liable?
(d) WHETHER the diverse findings and conclusions of the ESI Court are right and justified and based on without leading evidence or they are contrary to the weight of evidence on record and WHETHER the ESI Court is right and justified in ignoring the provisions with regard to limitation as per section 77 of ESI Act and erred in entertaining the application without considering the delay and the order of Special Medical Board?"
5. SUBMISSIONS ON BEHALF OF THE APPELLANTS;
5.1 Mr. Vasavada, the learned counsel appearing for the appellants vehemently submitted that the impugned judgment and order passed by the ESI Court is erroneous in law. According to Mr. Vasavada, the entire judgment is based on conjectures and surmises. According to Mr. Vasavada, the ESI Page 6 of 49 C/FA/2374/2015 JUDGMENT Court, at best, could have asked the Corporation to refer the respondent No.1 herein, i.e., the workman to the medical board for medical examination. It is submitted that the ESI Court could have adjudicated the application only upon receipt of the report of the Medical Board as regards the occupational disease. Mr. Vasavada would submit that as the workman was never employed at any point of time by the respondent No.2 herein and as the respondent No.2 has not insured the respondent No.1, the provisions of the ESI Act would not be applicable and on such ground alone, the application ought to have been rejected.
5.2 In such circumstances, referred to above, Mr. Vasavada prays that as there are substantial questions of law involved in this first appeal, the same may be admitted and allowed.
6. On the other hand, this application has been vehemently opposed by Ms. Shilpa Shah, the learned counsel appearing for the respondent No.1-workman. The submissions of Ms. Shah, the learned counsel appearing for the respondent No.1- workman are as under;
"(1) The respondent-workman was examined by the Civil Hospital, Dahod and x-rays were taken. That it was diagnosed by the Civil Hospital, Dahod that the respondent is suffering from silicosis.
(2) The medical reports of the respondent-workman was forwarded to the National Institute of Occupational Health (hereinafter referred to as "NIOH") as the respondent was suffering from silicosis.
(3) The respondent therefore preferred an application in the year 2007 to the appellant corporation along with the medical reports, requesting the appellant corporation Page 7 of 49 C/FA/2374/2015 JUDGMENT to undertake necessary procedure for awarding compensation to him as he was diagnosed to be suffering from the disease silicosis.
(4) Indisputably, the respondent is insured under the Act, 1948.
(5) The application filed by the workman was ignored and not acted upon by the appellant corporation. The respondent was not referred to the medical board as per sec. 54-A of the ESI Act by the corporation inspite of there being thumping and convincing evidence as regards the respondent suffering from silicosis.
(6) That as per sec. 54-A of the ESI Act, the Corporation has to refer the insured persons' case to the Medical Board for determination on the question of permanent disablement. However, the corporation in spite of being approached by the respondent by way of written application, did not refer his case to the Medical Board.
(7) In such circumstances, the respondent had to file the application directly before the ESI Court in the year 2008 as his physical condition was deteriorating. That before the ESI Court, there were in all 15 insured persons out of which 6 persons succumbed to the disease silicosis during the pendency of the case.
(8) That the main piece of evidence relied upon by the Court below is the list of the insured persons who were suffering from Silicosis- Occupational Disease and it is a part of the record. That the said list was provided by one Shri Bihariram, Deputy Director (CPIO) working under the appellant corporation. That the Court below has observed that it is an admitted fact according to the list provided by the appellant corporation that all the respondents were suffering from the disease silicosis and hence, rightly did not deem fit to refer the respondents to the Medical Board.
(9) That Section 75(2A) of the Act, 1948 stipulated a situation wherein an insured person has not been referred to or examined by a Medical Board. That in such eventuality, it is left to the discretion of the ESI Court to direct the Corporation to have such claim determined by Page 8 of 49 C/FA/2374/2015 JUDGMENT the Medical Board. Thus, it is the satisfaction of the ESI Court u/s. 75(2)(A) of the ESI Act.
(10) That in the present appeals, it is an admitted fact that the respondents were suffering from silicosis. The list of insured persons suffering from silicosis was produced on record ad the said list was furnished by the Deputy Director of the Appellant Corporation itself. In such circumstances, the ESI Court had cogent and convincing evidence to determine that the respondents were suffering from the disease silicosis.
(11) That Sec.75(2-A) also provides for the situation where as 'disablement question arises....;. That in the present appeals, it is an admitted fact that the respondents were suffering from the disease silicosis and hence, no disablement question arose for which a decision or opinion of the Medical Board was required.
(12) That as per the two decisions of this Hon'ble High Court in the case of Regional Director, E.S.I. Corporation vs. Babubhai Kalidas, reported in 2000 (2) GCD 1280 and in the case of Babubhai Maganbhai Patanwadia (Decd.) through Heirs & LRs. vs. Regional Director, 2004(3) LLJ, 236, the disease silicosis has been termed ass a life time 100% permanent disability and is incurable. In that view also, the judgment and order of ESI Court is just and proper.
(13) That the Legal Superintendent of the Appellant Corporation viz. Vidyaben Mule was examined by the Court below during the course of the trial. That the said witness has deposed on oath that the list of insured persons suffering from disease silicosis produced on record and submitted by Deputy Director (CPIO) Mr. Bihariram is correct and the respondents are suffering from the disease silicosis.
(14) The Court below has rightly observed in the last para on pg.38 of the judgment and order of the ESI Court that the respondents were suffering from silicosis and the appellant corporation ought to have referred them to the Medical Board under Rule 74. However, the respondents were not referred to the Medical Board by the appellant corporation in spite of the application having been made by the respondents. This clearly indicates that the Page 9 of 49 C/FA/2374/2015 JUDGMENT Corporation admittedly believed that the respondents were suffering from the disease Silicosis. "
7. In such circumstances, referred to above, Ms. Shah, the learned counsel appearing for the workmen in all the appeals submitted that there being no merit in any of the appeals, those be dismissed.
8. Mr. Gautam Joshi, the learned counsel has appeared on behalf of the respondent No.2, i.e., the employer. He has supported the case put up by the workmen. Mr. Joshi would also submit that there being no merit in any of the appeals filed by the Corporation, those be dismissed.
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the ESI Court committed any gross error in passing the impugned judgment and order.
10. Silicosis has been defined as one of the occupational diseases in Part-III of the 3rd Schedule to the Act. It is deemed to be an "employment" injury arising out of and in the course of the employment as contemplated by section 52-A of the Act and since silicosis is an incurable disease, the assessment of permanent partial disability is not provisional but final. In such circumstances, the consequential benefits to receive the disablement benefit for lifetime are required to be granted.
11. In the case of Regional Director, ESI Corporation vs. Babubhai Kalidas 2000(2) GCD 2280 (Guj.), this Court had Page 10 of 49 C/FA/2374/2015 JUDGMENT the occasion to consider the provisions of the Act, 1948 and also about silicosis in details. I may refer to the materials referred to and discussed by the Court in the said judgment.
"Among the occupational diseases, silicosis is the major cause of permanent disability and mortality. It is caused by inhalation of dust containing free silica or silicon dioxide (SiO2). It was first reported in India from the Kolar Gold Mines (Mysore) in 1947. Ever since,its occurrence has been uncovered in various other industries e.g. mining industry (coal, mica, gold,silver, lead, zinc, manganese and other metals), pottery and ceramic industry, sand blasting, metal grinding, building and construction work, rock mining, iron and steel industry and several others.
In the mica mines of Bihar, out of 329 miners examined, 34.1percent were found suffering from silicosis. In a ceramic and pottery industry, the incidence of silicosis was found to be 15.7 percent. The incidence of silicosis depends upon the chemical composition of the dust, size of the particles, duration of exposure and individual susceptibility. The higher the concentration of free silica in the dust, the greater the hazard. Particles between 0.5 to 3 microns are the most dangerous because they reach the interior of the lungs with ease. The longer the duration of exposure, the greater the risk of developing silicosis. It is found that the incubation period may vary from a few months up to 6 years of exposure, depending upon the above factors.
The particles are ingested by the phagocytes which accumulate and block the lymph channels. Pathologically, silicosis is characterised by a dense 'nodular' fibrosis, the nodules ranging from 3 to 4 mm in diameter. Clinically, the onset of the disease is insidious. Some of the early manifestations are irritant cough, hyspnoea on exertion and pain in the chest. With more advanced disease, impairment of total lung capacity (TLC) is commonly present. An x-ray of the chest shows'snow-storm' appearance in the lung fields. Silicosis is progressive and what is more important is that silicosis are prone to pulmonary tuberculosis, a condition called silicotuberculosis. In recent years, doubts have been Page 11 of 49 C/FA/2374/2015 JUDGMENT raised, whether silico-tuberculotics are really tubercular or purely silicotics. It is because,sputum in silico-
tuberculotics rarely shows tubercle bacilli; children and women of silico- tuberculotics do not develop tuberculosis; post- mortem on silicotuberculotics failed to prove the existence of tuberculosis disease, but showed them to be cases of pure silicosis. The radiological evidence in the two conditions is so similar that one is apt to mistake a case of silicotic tobe a case of tuberculosis of lungs. The final answer to this question is still awaited.
There is no effective treatment for silicosis. Fibrotic changes that have already taken place cannot be reversed. The only way that silicosis can be controlled (if not altogether eliminated) is by (a) rigorous dust control measures, e.g. substitution, complete enclosure, isolation, hydroblasting, good house-keeping, personal protective measures and (b) regular physical examination of workers.
Silicosis was made a notifiable disease under the Factories Act,1948 and the Mines Act, 1952."
In the Harrison's"Principles of Internal Medicine", 12th Edition, Vol.II, about Silicosis, reported in July 1993 issue of Bulletin "Occupational Health & Safety" Silicosis has been described as "A MEGA AIDS." It is described as under:
"The radiological investigations coupled with socio- economic and other associated aspects as emerged out in this sample survey of mine workers revealed a very alarming health scenario of mine workers. A large number of workers were found suffering from silicosis, silico- tuberculosis and tuberculosis. These findings commensurate with the startling fact that there are villages in which young widows of mine workers predominate the women folk since their husbands have died after working in sandstone mines. It is probably because of this widespread health hazard to which mine workers are exposed. The Rajasthan Government has framed strict legislatioin to protect and compensate the sandstone mine workers way back in 1955. If the health problems of sandstone mine workers is assessed under the existing legal provisions, the silicosis and silico-Page 12 of 49
C/FA/2374/2015 JUDGMENT tuberculosis cases will inflate to as much as 90% as compared to general population. The prevalence of tuberculosis therefore comes to about 120 times in this sample. (personal communication). It is worthwhile to mention that in disease like AIDS, the recorded prevalence of tuberculosis is 500 times more than the general population, which together are a fatal combination.It will, therefore, not be unfair to equate the silicosis with AIDS and label it as 'Mega AIDS' for sandstone working population in respect to tuberculosis. It is strange that silicosis rules are redundant since no worker is examined as per rules."
In the same journal, the article on Silicosis is published with a title "SHADOW OF DEATH". It is stated therein that :
"The nature is centered around the ancient port town of Khambat and surrounding areas in Gujarat and dates back about 4500 years. Today, what can be seen are the dire conditions the employees work in. Shakabhai, a resident of Shakarpur, one of the towns in Gujarat involved in the Industry, has lost five of his six sons to the trade. They died due to Silicosis contracted while working in the dust filled environs. Gangaba, an 80 year old woman laments the loss of three sons and three grandsons. So workers have died in just one area of Shakarpur in the last five years. The death list for the entire industry is endless. Most of the deaths occur due to inhalation of silica dust produced while grinding and polishing the crude agate stone. The air in these areas is 60 to 90 per cent silica. This accumulates in the lungs of the workers, finally leading an occupational disease called Silicosis. The symptoms of this disease are very much like those of Tuberculosis and is often mistaken for it. Silicosis drastically reduces the vital capacity of the lungs, resulting in death of the patient. There is no known cure for it in Allopathy."
Even though the this Article is thought provoking, it is not necessary to refer to the other details given in the Article in this judgment.
Page 13 of 49C/FA/2374/2015 JUDGMENT
7. In view of the aforesaid material on record, it is clear that amongst the occupational diseases, Silicosis is the major cause of permanent disability and mortality and it is caused by inhalation of dust containing silica and silicon dioxide and there is no effective treatment for Silicosis. Fibrotic changes which have already taken place cannot be reversed. It is also clear that Silicosis can be controlled before it is being contracted by rigorous dust control measures or by regular physical examination of the workers, but once it is contracted, there is no effective treatment for it and the person has to die. There is no dispute with regard to the fact that all the 54 workers have been diagnosed as the patients of Silicosis."
12. The Court, thereafter, proceeded to look into the relevant provisions of law. I may quote the relevant para-8 of the said judgment as under;
"Section 2(8) deals with employment injury which defines 'employment injury' as a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.
Section 2(15-A) defines 'permanent partial disablement' to mean such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement.
Reading these two provisions, it is clear that in the case of permanent partial disability, the disablement must cause a reduction in the earning capacity of the employee and such reduction must be in every employment which was incapable of undertaking at the time of the accident whereas permanent total disablement is that where there is permanent incapacity and that the employee is incapacitated to do the work which he was capable of undertaking at the time of the accident.Page 14 of 49
C/FA/2374/2015 JUDGMENT Section 52-A deals with occupational disease. The word "Occupational disease" is not defined. However, the Third Schedule prescribes a list of occupational disease. Therefore, the words "Occupational disease" are required to be read with section 52-A and the Third Schedule. Item No.1 of Part C of the Third Schedule deals with Silicosis as an occupational disease which reads as under:-
Occupational disease Employment
1.Pneumoconioses caused by sclerogenic Work involving mineral dust (silicosis, anthraoosi- exposure to the licosis asbestosis) and silico- risk concerned. tuberculosis provided with silicosis is an essential factor in causing the resultant incapacity or death.
Section 54 of the Act deals with the determinatioin of question of disablement and provides that :
"Any question---
(a)whether the relevant accident has resulted in permanent disablement; or
(b)whether the extent of loss of earning capacity can be assessed provisionally or finally; or
(c)whether the assessment of the proportion of the loss of earning capacity is provisional or final; or
(d)in the case of provisional assessment, as to the period for which such assessment shall hold gold, shall be determined by a medical board constituted in accordance with the provisions of the regulations any such question shall hereafter be referred to as the 'disablement question.' Section 54-A deals with references to medical boards and appeals to medical appeal tribunals and Employees' Insurance Courts. Section 55 is material for our purpose which deals with review of decisions by medical board or medical appeal tribunal and provides that any decision under the Act of the medical board or the medical appeal tribunal may be reviewed at any time by the medical board or the tribunal as the case may be if it is satisfied Page 15 of 49 C/FA/2374/2015 JUDGMENT by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the employee or any other person of a material fact and also any assessment of the extent of the disablement resulting from the relevant employment injury may also be reviewed by a medical board if it is satisfied that since the making of the assessment, there has been a substantial and unforeseen aggravation of the results of the relevant injury.
Rule 57 of the Employees' State Insurance (Central) Rules, 1950 deals with disablement benefits and inter alia provides that where permanent disablement, whether total or partial,has been assessed provisionally for a limited or finally, the benefit provided under the rule shall be payable for that limited period, or as the case may be, for life. Since it is conceded by the learned Counsel for the Corporation that the workers are entitled to the disablement benefit till life, it is not necessary for me to consider that question. However, in view of this, the finding recorded by the ESI Court that the workers shall be provided with benefits till their service, is required to be set aside and is hereby set aside.
Regulation 74 deals with Occupational disease which inter alia provides that any question whether an employment injury is caused by an occupational disease specified in the Third Schedule to the Act shall be determined by a Special Medical Board which shall examine the disabled person and send a report in such form as may be prescribed by the Director General to the Regional Office stating whether the disabled person suffering from one or more of the diseases specified in the said Schedule; whether the relevant disease has resulted in permanent disablement; whether the extent of loss of earning capacity can be assessed provisionally or finally and the assessment of the proportion of loss of earning capacity and in case of provisional assessment, the period for which such assessment shall hold good."
13. The Court, thereafter, proceeded to observe the following in paras-9,10 and 11;
Page 16 of 49C/FA/2374/2015 JUDGMENT "9. Keeping in mind the fact of workmen having contracted the disease Silicosis specified as an occupational disease of Part 'C' of the Third Schedule and the aforesaid provisions of the enactments which are undisputedly beneficial to the workmen, brought forth by the Welfare State for the hapless employees, the rival contentions are required to be considered. In the present case, before the ESI Court, both the parties have produced necessary materials by way of evidence. The workmen filed necessary affidavits and produced relevant books/ journals for which reference has been made above. Dr.Jayant Acharya, who was one of the members of the Special Medical Board has also been examined. On behalf of the Corporation, necessary documents, namely the report of the medical board, form no. 16-A filed by the Corporation and the medical certificates of the workmen etc. have been produced. Dr.Jayant Acharya who has been examined by the concerned workmen before the ESI Court, vide Ex. 10, has, in his evidence, given details about the disease Silicosis attracted by the workers of Alembic Glass and Sarabhai Glass Industry in the City of Baroda. According to him, the patients of Silicosis suffer breathing problem. The patients of the said disease are not able to perform hard labour. If no proper treatment is given, the working capacity deteriorates day by day. According to him,the said disease is incurable. The last stage of the disease is known as "Fibrosis". The said stage of Fibrosis can be delayed provided medicines are taken. However, because of the adverse effect, practically medicines are not used. According to him, at what rate the workmen of Crushing Plant can sustain Silicosis depends on the immunity power of the workmen. The possibility of contracting Silicosis increases by inhaling the powder of the dust. According to him, the dust particles deposit in the lungs with the result that the heart weakens and it also affects the liver as well as kidney. The patient is also not in a position to do his work. Day by day, the life span decreases. According to him, Harrison's Principle & Internal Medicine is a standard book as far as the disease Silicosis is concerned. He has assessed the disability of the workmen to the extent of 60% to 70%. There are all possibilities that the patients may die within a year or two. In the cross examination, his attention was invited to the report of the medical board wherein 20% disability has been assessed, to which he has stated that he is not Page 17 of 49 C/FA/2374/2015 JUDGMENT prepared to say that the same is not correct. In view of this oral as well as documentary evidence on record, the ESI Court recorded a finding that the disease Silicosis is an incurable disease. This being a peculiar disease, even though the ESI Court has recorded that the concerned workmen are entitled to compensation for 100% disability, however, in the final order, the disability was assessed to the extent of 80% to 90%. In any case, on appreciation of evidence on record, once such a finding is recorded, it cannot be contended that it is a case of 'no evidence'. Admittedly, in the instant case, all the 54 workmen contracted Silicosis which is an incurable disease and in the course of time, its adverse effects increase and ultimately leads to death and, therefore, it cannot be contended that the disablement is for a limited period but it continues throughout the life.
10. Once such a finding is recorded, I am of the view that the workmen are entitled to receive compensation for 100% disability. According to the provisions of section 2(15-A) which deals with permanent partial disablement, permanent partial disablement must cause reduction in the earning capacity of the employee in every employment which he was capable of undertaking at the time of the accident resulting into disablement whereas under section 2(15-B), 'permanent total disablement' means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement. In other words, the character of disablement is such that a person concerned is not only unable to do work which he was doing at the time of the accident, but any work. In the instant case, all the 54 workmen have contracted Silicosis which is an incurable disease. Considering the fact that Silicosis being a disease wherein it is not possible for the workman to do his daily routine work efficiently and which condition further deteriorates day by day and ultimately results into death, I am of the opinion that the workmen are entitled to receive 100% disablement benefit for the permanent disablement, payable under the Act for the injury to an employee caused by an accident or by occupational disease arising out of and in the course of the employment. The case on hand is not for the assessment of permanent total disablement provisionally, but it is for final assessment, being Page 18 of 49 C/FA/2374/2015 JUDGMENT described as an occupational disease as per the Third Schedule. Therefore, the workmen are entitled to receive 100% disability benefit for permanent total disablement for life time. Once such a finding is recorded that the workmen have contracted incurable disease of Silicosis, is it necessary to examine the nature, extent and quantum of the disability suffered by the respondents- workmen? and for that, is it necessary to refer the concerned workmen under section 55 of the Act for review to find out whether the disease has aggravated or not ? Mr.Shah, learned Counsel for the ESI Corporation submitted that in view of the provisions of sections 54 and 2(15-B) read with Regulation 74 which provides for determination of the question of disablement by the medical board constituted in accordance with the provisions of the Regulations, contrary to their report, if it is held that the workmen have contracted Silicosis and, therefore, they are entitled to 100% disability benefit, would amount to ignoring those provisions. In the submissions of Mr. Shah, it is for the medical board to decide the extent of the disease. Mr.Shah further submitted that there is nothing on record to show that all the 54 workmen are totally incapacitated and, therefore, the case on hand requires remand. He has relied upon the decision of this Court in the case of Mahmad Abdulla Vs. ESI Corporation, reported in 1984 LIC 1717. It was a case wherein an injured person sustained an employment injury on his right leg and on being referred to the medical board, the medical board assessed his loss of earning capacity at 9%. It was set aside by the Medical Appellate Tribunal. The Medical Appellate Tribunal did not speak anything about what injuries were actually suffered by the appellant and ran to give a conclusion that the present condition of the appellant was unrelated to original industrial injuries. In further appeal to the Employees' State Insurance Court under section 54A (2)(i) of the Act, the judge noticed the basic lacuna in the reports of the Medical Officers, but accepted the report of the Medical Appeal Tribunal on the ground that the appellant failed to examine a medical man to challenge the findings of the Medical Appeal Tribunal.The Court held as under:-
"xxxx the lower Appellate Judge had not correctly approached the problem. It was clear from the judgment of the lower Appellate Judge that even without the Page 19 of 49 C/FA/2374/2015 JUDGMENT assistance of a medical witness examined by the appellant, it did appear to him that the reports of the statutory authorities were not satisfactory and if so he could not have agreed with it only because the appellant had not examined a medical witness in his support. Thus, the wrong approach on the part of the lower Appellate Judge had resulted in a gross miscarriage of justice to the appellant, an extremely poor workman, who claimed that he had suffered a total disability resulting in 90 per cent loss of earning capacity and had been assessed at only 9 per cent loss of earning capacity."
In this view of the matter, this Court held that the Insurance Court could have remanded the matter for further consideration.
The aforesaid judgment was delivered in the facts of that case. However, as recorded earlier, in the present case, the ESI Court considered oral as well as documentary evidence produced before it and recorded a specific finding that Silicosis is an incurable disease and thereafter decided the question of disability. In my opinion, this was within the powers of the ESI Court to record the statement. The finding recorded by the ESI Court is based on the evidence including the evidence of Dr. Acharya who was the member of the board. Therefore, it cannot be contended that it was merely an ipse dixit of the Court. In this view of the matter, even the judgment delivered by my learned brother Y.B.Bhatt in First Appeal No. 2660 of 1996 in the case of Sureshchandra Jani Vs. Regional Director, ESIC will have no application.
11. True, under section 54 of the Act, the medical board can determine the question of disablement whenever such a question arises as to whether the relevant accident has resulted into permanent disablement or the extent of loss of earning capacity provisionally or finally and the assessment of the proportion of the loss of earning capacity etc. and even section 55 of the Act gives power to the medical board and the Medical Appellate Tribunal to review their own previous decisions once it is pointed out that the injury or the disease has aggravated. Ordinarily, it should be left to the discretion of the medical board to determine the question involved under section 54 and in a given case, under section 55, Page 20 of 49 C/FA/2374/2015 JUDGMENT but there are cases and cases of accident and disease. As far as accidental injuries are concerned, Schedule II of the Act prescribes for description of injuries and percentage of loss of earning capacity. The medical board can certainly determine the question of disablement in the light of what is provided under the Act. Even after determining the said question, if at all there is any aggravation of the injury, the concerned workman can certainly apply for review under section 55. Similarly, in the case of occupational disease also, it can be decided under section 54 and can also be reviewed under section 55, but once it is declared that the disease is incurable, then is it necessary to determine the question of disablement in a case of incurable disease ? It is a permanent disablement and the patient is bound to reduce his earning capacity. Since the employee has contracted an incurable disease,it is bound to aggravate and, therefore, all these questions which are required to be determined by the medical board or the Medical Appellate Tribunal, it is nothing but an empty formality. The only exception that can be made in the case of an incurable disease is only when a finding is recorded that such a disease is controllable. In the present days, when medical facilities are available, all the diseases are practically curable. However, there are still certain diseases for which no cure is invented. From the evidence on record,it is clear that the disease Silicosis is one of such diseases. In the circumstances, even though there are certain provisions which are required to be followed, but by asking the patient suffering from an incurable disease to apply before the medical board to find out as to whether he has suffered a permanent disablement or not or whether he has lost his earning capacity or not and whether his disease has aggravated or not is nothing but a cruel joke to him. It is stated at the bar that out of 54 workers who sustained Silicosis, 14 have already expired during the pendency of the proceedings. This would go to suggest that Silicosis is incurable and uncontrollable. This Court cann't shut its eyes to the seriousness of the disease and insists that the workers must follow the provisions by applying again and again to the medical board to review their decision when the death is inevitable. This Act which is a benevolent legislation is for the benefit of the workmen and all the interpretations of the enactments are required to be interpreted with a broader outlook. The Page 21 of 49 C/FA/2374/2015 JUDGMENT Court must desist itself from accepting technical contentions. Thus, none of the submissions of Mr. Shah impressed me and they are required to be rejected."
14. Let me now look into the impugned judgment of the ESI Court. The ESI Court, while answering the issues framed vide Exh.19, held as under. The issues Nos.1 and 2 came to be answered as under;
"Issue Nos. 1 and Issue No. 2Whether the applicant proves that, he was working in the opponent No. 3 institution from January 2002 to December 2003?
Whether the applicant proves that, the opponent No. 3 was his employer and he was the employee?
Both these issues are interconnected with each other therefore discussed together. On perusal in this regard then the applicant has stated in his Exh. 1 application that he was working in opponent No. 3 Bharat Silica Sand, Chikhodra, Godhra since January 2002 to December 2003 as a helper.
Below Exh. 24/1 the Assistant Director, Industrial Safety and Health, Godhra has addressed a letter to Director, Industrial Safety & Health, Gujarat State, Ahmedabad on 5/7/2008 in the said letter the name of the concerned workman Lalji Sadiya Kamod is included at Sr. No. 10 as the employee of Bharat Silica Sand, Chikhodra, Godhra. And against the same 'on the basis of the letter dated 5/7/08 before this office it is stated that the workman has not worked in the factory', such endorsement is made.
Below Exh. 24/2 Mr. Bihariram, Assistant Director [CPIO], has in reference to RTI application by Mr. Mohit Gupta, New Delhi with the letter dated 7/10/2009 enclosed a list Exh. 24/3 in which the name of concerned workman is appearing at Sr. No. 26 Lalsingh S. is written, and the place of work Bharat Silica is shown. And diseases Silicosis is shown.
Page 22 of 49C/FA/2374/2015 JUDGMENT Below Exh. 36 ESI Corporation Sub Regional Office, Vadodara Assistant Director [CPIO] Mr. Bihariram has in his letter dated 27/2/2013 to Mr. Jagdish Patel named person supplied the information below the RTI Act, wherein 'Ins. No. of Lalsingh Sadya Garasiya is 7084661 employed by Bharat Silica. Godhara is written' that is the insurance number allotted to the applicant is 7084661.
On behalf of the opponent Corporation below Exh. 18/1 Branch Manager, Kalol has filed the inspection report, in which the Manager had carried out the inspection on 1/8/2008. And below Annexure - 2 Form Lalsingh Sadiya Kamod name is recorded, in the name of institution Bharat Silica Sand is written. Insurance number is not allotted, he is not in service, and 'suspected case of Silicosis' is written, whereas Bharat Silica Sand undated letter which is to the Branch Manager, ESIC, Kalol and it is written in it that, 'in reference to your office letter No. 38-BO-KLL-PD-2008 dated 27/8/2008 and the enclosed list of workmen from amongst them village Chhasiya inhabitant Mr. Lalsingh Sadiya Kamod has never worked in our factory....' As stated.
Thus, when Manager, ESIC, Kalol has visited on 1/8/2008 he had recorded the name of the concerned workman, and the place of his work is shown to be Bharat Silica Sand, and made entry 'not in service', whereas Bharat Silica Sand company has stated that he has never worked in their institution vide their undated letter and made false statement there are no reasons to believe this. Because below Exh. 26/1 the Deputy Director Mr. Bihari Ram has in reference to the RTI application addressed a letter to Mr. Jagdish Patel, Vadodara on 27/2/2013 and in the enclosed list at Exh. 26/4 the name of the concerned applicant is appearing at Sr. 26 and the said name is "Lalsingh S", and the place of work is shown to be Bharat Silica, and the diseases Silicosis is shown Here it is imperative to note that, the name 'Lalsingh Sadiya Garasiya' shown in the letter by the Deputy Director, in the said list there is no other name starting with letter L. Whereas the name of this same workman is shown at different places as 'Lalsingh Sadiya Kamod', 'Lalji Sadiya Kamod' and Page 23 of 49 C/FA/2374/2015 JUDGMENT etc. Thus there are reasons to believe that the real name of the concerned workman is as shown by the Deputy Director, ESI in the above letter "Lalsingh Sadiya Garasiya", and he is allotted insurance No. 7084661. Thus, the opponent corporation themselves know that the said workman was working in the Bharat Silica Sand, but the institution is denying this fact and is creating contradiction. Moreover, the opponent witness has in his cross examination admitted the fact that Bihariram is the Director of ESI. In Exh. 24/3 Sr. No. 26 the name of applicant is appearing, and it appears that he has Silicosis.
Thus, on view of the above facts it appears that the concerned workman was working in the Bharat Silica Sand, Chikhodra, Godhra, and this institution is falling under the notified areas below the ESI Act, therefore below the said Act it is covered by the opponent Corporation, and at the same time it is the responsibility of the opponent Corporation that all the workmen working in hazardous nature of works should be protected by insurance under the provisions of ESI Act, and recover the contribution for the same from the institution, and provide insurance cover to the workmen and supply them the insurance number and I.Card. but the opponent Corporation had obtained the names of the workmen working in the institution and where they were working such entry is available on their records, but they are not allotted insurance number nor issued card. Thus, the opponent corporation has not performed its moral duties and the concerned workman stopped coming to work due to the serious physical injuries caused to him, therefore the opponent No. 3 institution has stated that the concerned workman was not working in their institution. Because the Assistant Director, Industrial Safety & Health, Godhra had addressed letter on 5/7/2008 to the Director, Industrial Safety & Health, Gujarat State, Ahmedabad and the name of the concerned workman at Sr. No. 26 Lalsingh Sadiya Kamod is written and against his name endorsed that the office has in their letter dated 5/7/2008 informed that the concerned workman has not worked at their place.' And below Exh. 38/2 Bharat Silica Sand has addressed undated letter to Branch Manager, ESIC, Kalol and written therein that, 'in reference to your office letter No. 38-BO-KLL-PD-2008 Page 24 of 49 C/FA/2374/2015 JUDGMENT dated 27/8/2008 and the enclosed list of workmen from amongst them village Chhasiya inhabitant Mr. Lalsingh Sadiya Kamod has never worked in our factory....' As stated. Whereas the applicant claims to have worked during the period from 2002 to 2003 at their institution.
Thus, at the relevant time the action taken by the Corporation was not done and the correct facts of the institutions in their jurisdiction and the workmen working in it ought to be collected and kept on records, wherein they had failed in their duties and although the name of this workman is on there records then also tried to prove that the said workman has never work in the institution, there are no reasons to believe the same.
Thus, it is clearly proved that the concerned workman has worked during the period from 2002 to 2003 in the company and done work that can be said to be hazardous, and it is proved that the employer of the workman was the opponent No. 3. The information provided by the opponent corporation is not proved to be wrong by the opponent. Thus, the reply to both these issues is given in the affirmative."
15. The issues Nos.3 and 4 came to be answered as under;
"Issue No. 3 and Issue No. 4Whether the opponent proves that, the ESI Act, 1948 is not applicable to the opponent No. 3?
Whether for the reason that the opponent No. 3 had not paid the contribution only for this reason the honourable court does not have the jurisdiction to adjudicate this application?
On perusal with regard to these issues then, in the issue No. 1 the ESI Corporation Sub Regional Office, Vadodara Assistant Director [CPIO], Mr. Bihariram has supplied information vide letter dated 7/10/2009 and 27/2/2013 Exh. 33 to Mr. Jagdish Patel named person under his RTI application, in which the concerned workman is Page 25 of 49 C/FA/2374/2015 JUDGMENT working in the Bharat Silica Factory situated at Chikhodra, Godhra. As per the ESI Act the said concerned workman has insurance No. 7084661 . He is suffering from occupational diseases called Silicosis, thus it is established that ESI Act is applicable to the opponent No. 3 institution in this matter, and therefore it was the responsibility of the opponent Corporation to make the workman insured and to collect the contribution. In this matter the opponent Corporation has filed affidavit and in the cross examination the opponent Corporation witness has admitted that, 'The opponent No. 3 company is situated at Godhra nad ESI Act, 1948 is applicable to the opponent No. 3 company, the employer has to file the declaration form under ESI Act of each workman, whether the ESI Form of the workmen are filled or not it is the responsibility of the ESI Corporation. After the declaration form of the workman is filed then the ESI card has to be issued.
Also, in the ruling reported in 2003(97) FLR - 577 Bhargat Enginnering Vs. R. Ranganiyki the honourable Supreme Court has held that, if the factory is situated in notified area then it is the responsibility of ESI to cover the same. Taking the said ruling into consideration then also the company in which the concerned applicant was working the said company was falling under the notified areas declared below the ESI Act provisions then it is the responsibility of the ESI Corporation to cover the same. And the corporation witness has stated that the provisions of ESI Act are applicable to the opponent No. 3, also he has stated that whether the institution has filed the ESI Form of the workman or not, to verify this is the responsibility of the ESI Corporation. And after the declaration form of the workman is filled thereafter ESI card has to be issued. Thus, as per the provisions of law ESI Corporation has the responsibility to cover the concerned institutions under the ESI Act, 1948 and to fill the declaration forms of the workman working in it as per the ESI Act, and thereafter to issue them card is also the duty of the opponent Corporation. It is also the responsibility of the opponent Corporation to recover the contribution from the concerned institution. Thus, whether the opponent No. 3 had paid their contribution or not to verify this is the responsibility of the Corporation. Thus, in view of all the above facts Page 26 of 49 C/FA/2374/2015 JUDGMENT the concerned institution is falling under the ESI Act, 1948 and the workmen working in it are legally entitled to become insured, and in this manner this court also has the jurisdiction to adjudicate this application, thus the opponent Corporation has failed to prove the issue No. 3 and the issue No. 4 in their favour thus the reply to these issues is given in the negative."
16. The issue No.5 came to be answered as under;
"Issue No. 5Whether the opponent proves that, the applicant has not contracted Silicosis during his service in the opponent No. 3 institution?
On perusal with regard to this issue then the Assistant Director, Industrial Safety & Health, Godhra has addressed letter to the Director, Industrial Safety & Health, Gujarat State, Ahmedabad on 5/7/2008 and in the said letter the name of the said workman is shown as working in Bharat Silica Sand, Chikhodra, Godhra. Below Exh. 24/2 Mr. Bihariram, Assistant Director [CPIO] has in reference to RTI application by Mr. Mohit Gupta, New Delhi with his letter dated 7/10/2009 in the list annexed 'List of insured persons who were suffering from Silicosis Occupational Disease' in this list the name of concerned workman is given at Sr. 26,and against his name shown working in Bharat Silica Mill. On behalf of the opponent Corporation in the Exh. 18/1 report of ESI Corporation Kalol Office Branch Manager has during his visit on 1/8/08 made report about the concerned workman, and the name of the workman, where he was working the said Bharat Silica Sand institution had not allotted insurance number, and used the words 'not in employment'. This means that at the time of the visit of the Manager the concerned workman was not in employment. The Manager has used the words 'suspected case of Silicosis' in his report. At the time of making this report the Manager was aware that the institution in which the workman was working may or may not have any other diseases but he would contract Silicosis diseases. He is himself not a doctor but in his Page 27 of 49 C/FA/2374/2015 JUDGMENT report he has not directly written Silicosis diseases is caused but the word doubtful is used and indirectly admitted the Silicosis diseases. On behalf of the applicant in his statement also it is stated that in this institution the work of silica stone crushing was done and powder was manufactured. The silica stones are used as raw materials. During the manufacturing process very find dust of silica is flying. The applicant is working as Helper in the opponent institution No. 3, therefore he was doing the work of putting silica stones in the crusher, taking out powder from the machine, fill in the bags, weigh the bags and stitch them and to properly arrange the bags and etc. work was done by him. The applicant was daily working in 12 hours shift, and he was provided a room by the company inside the company for living. Thus, the concerned workman was doing the work of crushing silica stones and was engaged workman by the institution, there are no reasons not to believe this.
Now, on perusal of the arguments regarding the contraction of Silicosis diseases then as stated by him as per the ESI Act Rules provisions and as per the NIOH report doubtful Silicosis is stated. It is not diagnosed as Silicosis. The applicant had doubtful Silicosis therefore as per the ESI Regulation 1950 Regulation 70 he has to be examined by the Special Medical Board. In the present case the applicant is not referred to the Special Medical Board. Whereas when the applicant is not referred to the Special Medical Board and there is no diagnosis of him contracted Silicosis thus the ESI Court cannot order to grant him compensation for the occupational diseases Silicosis.
Whereas on behalf of the applicant it is stated that in the opponent Corporation Manual Page No. 152 L 4.69 A under the head of Relaxation of service condition in the Corporation meeting held on 25/2/1992 it was held that even if a person has worked for less than the minimum qualifying period for the occupational diseases included in the Part C to such person also such occupational diseases can be contracted. Which is as here below.
"Relaxation of service condition.Page 28 of 49
C/FA/2374/2015 JUDGMENT L.4.69A. The periods specified above for occupational diseases included in Part C caused hardship to those sufferers who would not fulfill the minimum qualifying period of employment. The Corporation, at its meeting held on 25/2/1992 resolved to add the following proviso to its Resolution passed earlier fixing the period of employment for diseases under Part C:
Provide that if it is proved that an employee whilst in the service of one of more employers in any employment specified in Part C of the Third Schedule to the ESI Act, 1948 has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified by the Corporation for that employment, and, That the disease has arisen out of and in the course of employment, the contracting of such disease shall be deemed to be and 'employment injury' within the meaning of Section 52-A of the ESI Act, 1948."
Thus, when in the Corporation Manual Page No. 152 L 4.69 A under the head of Relaxation of service condition in the Corporation meeting held on 25/2/1992 it was held that even if a person has worked for less than the minimum qualifying period for the occupational diseases included in the Part C to such person also such occupational diseases can be contracted. On behalf of the Corporation in their written arguments it is stated that workman ought to have worked continuously for six months. Thus, it is not proved that if a person has not worked continuously for six months than Silicosis cannot be contracted. Moreover, on perusal then in this matter the concerned applicant has made application claiming compensation on 12/6/2007, and at that time also he has stated that while working in the opponent No. 3 institution he had contracted Silicosis. The above amendment by the Corporation was made in its meeting held on 25/12/1992, that is by this amendment when the workman had claimed compensation during the said period about 14 to 15 years time had passed and inspite of this the concerned officer of the Corporation does not know that for a period less than 120 days also occupational diseases can be contracted. When the applicant had stated that he had contracted Page 29 of 49 C/FA/2374/2015 JUDGMENT occupational diseases and made application under the ESI Act for compensation then the Corporation should as a responsible officer verify such application, and the object with which the ESIC is constituted the said object should be properly achieved. Whereas in the said case the Corporation has not taken any action with regard to the application dated 12/6/2007 by the concerned applicant, therefore the applicant had to take shelter of court for justice, thus irresponsible act is committed, there are no reasons not to believe this. In the statement of 73 workmen produced by the Corporation from amongst the workmen who had contracted Silicosis 32 workmen have died, thus applicant has not suffered from Silicosis in the absence of evidences it cannot be believed. The opponent Corporation has in reference to the application dated 28/5/2007 claiming compensation remained inactive, and they have not taken any action, nor taken any action for sending the applicant before the Special Medical Board and it is not evident from the records produced in this matter. The opponent Corporation has not given any reasons with regard to the application dated 12/6/2007 by the workman for sending to the Special Medical Board. At the relevant time the Corporation ought to have sent the applicant to the Special Medical Board. From the year 2007 till date in this matter also the Corporation has not made any application for sending the applicant to the Special Medical Board till date. On perusal of the opponent Corporation witness evidence and the documents produced by the opponent Corporation it is proved that the applicant has contracted Silicosis, thus, there is no necessity of the formality of sending him to the Special medical Board. The death of person suffering from Silicosis diseases is definite, thus was the opponent Corporation waiting for the applicant workman to die? So that the compensation may not have to be paid. Including the workman 73 workmen have contracted Silicosis named diseases, of them 32 workmen have died, thus, taking into consideration the object of the ESI Act it becomes the duty of the opponent Corporation to pay the compensation for Silicosis at the earliest to the applicant. Thus, the opponent Corporation has filed to prove that the workman has not contracted Silicosis diseases by working in the said institution.
Page 30 of 49 C/FA/2374/2015 JUDGMENT
The opponent Corporation has stated that, the
concerned workman was not the workman of the opponent No. 3 institution, and he has never worked there. Assuming for the sake of argument that the workman has not worked in Bharat Silica institution, then as stated above how did the name of the workman appear in the records of the institution? Because the Deputy Director class ESI Corporation Officer has provided the said information under the RTI Act, and in the same the information about the concerned workman is there. So should the court believe that the information provided below the RTI Act is false? Thus, the Silicosis diseases that is contracted by the workman working in the companies using silica stones as raw materials and crushing the same. Whereas the concerned workman has contracted the Silicosis named diseases, when such diagnosis is done then naturally there are no reasons to believe that the concerned workman has never worked in such institution doing hazardous work, it is impossible to contract such diseases in normal circumstances. Thus, the opponent Corporation has failed to present the true facts of the concerned workman and proving the same, therefore the reply to the said issue is given in the negative."
17. The issues Nos.6 and 7 came to be answered as under;
"Issue No. 6 and Issue No. 7Whether the applicant proves that, due to the occupational diseases Silicosis he has suffered 100% permanent physical handicap?
Whether the applicant is entitled to compensation as per the provisions of ESI Act for his occupational diseases Silicosis for handicap from the year 2003?
With regard to this issue on perusal then as discussed in the Issue No. 3 in the in the Corporation Manual Page No. 152 L 4.69 A under the head of Relaxation of service condition in the Corporation meeting held on 25/2/1992 it was held that even if a person has worked Page 31 of 49 C/FA/2374/2015 JUDGMENT for less than the minimum qualifying period for the occupational diseases included in the Part C to such person also such occupational diseases can be contracted. On this same issue the honourable High Court of Gujarat has held in its ruling reported in 2000 (2) GCD 1280 that the Silicosis diseases does not cure it increases every day. The Corporation has started to pay life time 100% handicap compensation to 54 workmen. Of them 24 workmen have died as on date. By not providing benefit to the dependents of such deceased the main object of ESI Act is frustrated. The ESI Act is framed for the welfare of the workmen. Thus, the honourable High Court of Gujarat has also held that, once the Silicosis diseases is contracted then it is not ever cured, it increases day by day and there is no medicine for the same. In the circumstances when the concerned workmen contracted Silicosis diseases then in view of the above High Court of Gujarat ruling it is considered 100% handicap. Also, the honourable High Court has in 2000(2) GCD 1280 Regional Director, ESI Corporation Vs. Babubhai Kalidas and 2004(3rd) LLJ ..Balubhai Patanvadiya Vs. Regional Director, in these cases orders were passed to pay 100% compensation for Silicosis diseases. Thus, when the Corporation has stated in its letters and the enclosures therewith that the concerned workman has contracted Silicosis diseases in such circumstances the physical handicap of the said applicant due to the said diseases is considered 100%. The diagnosis of the diseases of the applicant was done by Civil Hospital, Ahmedabad and National Institute of Occupational Health, thus, the application claiming compensation for the same was made to the opponent Corporation, but the opponent Corporation has not taken any action on the compensation application by the applicant. The corporation was having the records of the concerned workman inspite of this there is no action taken on hand for referring the applicant to the Special Medical Board. The opponent Corporation has not taken any action on the application by the applicant and without sufficient verification did not reply to the said application, as stated by the applicant in his statement also, thus, the Corporation has shown irresponsible conduct, there are no Page 32 of 49 C/FA/2374/2015 JUDGMENT reasons for the court not to believe the same, and towards such proceedings the court gets reasons to pass strictures. In fact when vide the Corporation Deputy Director it is admitted that the said workman had contracted Silicosis and the information is provided on the basis of their records, thus, the information is available with the Corporation inspite of this no trouble is taken and the action taken by the responsible officer of the Corporation is overlooked, thus the court holds the opponent Nos. 1 and 2 legally responsible to pay the Silicosis compensation to the applicant. And thus the said issue is proved in favour of the applicant thus the reply to both the issues is given in the affirmative."
18. The issue No.8 came to be answered as under;
"Issue No. 8Whether the applicant is entitled to the handicap benefit / compensation with 12% interest?
On considering this issue then the applicant had suffered Silicosis and the company in which the applicant was working in the said company his post was of 'helper-labourer', whether he was covered below the ESI Scheme or not? And perhaps what is this ESI Scheme the applicant also does not know this because the institution has during his work in the institution not even issued him any ESI card. Thus, one labour class person who has contracted Silicosis named disease and thereafter due to this reason application dated 12/6/2007 was made to ESI Corporation and the application is not accepted thus the labour class workman has to take shelter of the court for justice and years would pass for the trial and perhaps he may survive then also due to physical handicap he would have difficulties in earning his daily bread or his family will have to struggle for survival such situation is created by the Corporation concerned responsible officer who had not given sufficient attention and without sufficient verification [because on the Corporation records also it is evident Page 33 of 49 C/FA/2374/2015 JUDGMENT that the workman is suffering from Silicosis diseases], this is admitted and in one serious duty shown negligence, and for such negligence from the year 2007 although the concerned workman is entitled to get compensation he has denied the payment of such compensation, and committed such act of injuring the bona fide object of the ESI Act and achieve its object, thus if 12% compensation is recovered from such responsible officer and paid to the concerned workman then the court finds it to be proper, so that the burden of such interest due to such error should not fall on the government. Inspite of this, this court does not have the jurisdiction to impose such punishment, therefore such orders cannot be passed, but looking to the delay caused and when the said disease cannot be cured, and day by day it goes on increasing then in view of being helpful to the suffering person it would be proper to pay 8% interest to the applicant workman. Therefore the reply to the issue No. 8 is given partly in the affirmative."
19. The issue No.9 came to be answered as under;
"Issue No. 9Whether as per the provisions of the ESI Act 1948 the applicant is entitled to the handicap benefit / compensation hereinafter every month?
As discussed in the above issues when it is established that the concerned applicant has in his application stated that he has contracted Silicosis diseases during his work in the institution no. 3, and this diseases is incurable, it cannot be cured, and day by day it goes on increasing, there is no medicines for this diseases, in the circumstances now the concerned applicant will not be able to become free from this diseases fully and become competent to earn his livelihood, there are no reasons not to believe this. In the circumstances the applicant workman becomes entitled to get the handicap benefit / compensation under the ESI Act, 1948, and accordingly the opponent Corporation should pay the compensation. The said issue is also decided in favour of the applicant therefore the reply to Page 34 of 49 C/FA/2374/2015 JUDGMENT the issue is given in the affirmative."
20. The issue No.10 came to be answered as under;
"Issue No. 10Whether the applicant is entitled to the costs from the opponents jointly and severely?
With regard to the said issue on perusal then as per the discussions held in the above issues it is proved that the concerned workman worked in the Bharat Silica, Godhra company and used silica stones as raw materials, and was engaged in the work of stone crushing and he was in direct contact with it and so he had contracted Silicosis named diseases. In such risky work the employer company of the applicant has not taken any safety measures for the physical health maintenance of the applicant so that there is minimum risk, and did not provide any equipments, it also does not appear from the evidences on records, and there is also no such submission made on behalf of both the parties and thus there are reasons to believe that the concerned applicant was in direct contact with such risky work and so in a very short time he had contracted fatal diseases, and in this regard the institution also appears to be equally responsible. Whereas ESI Corporation has due to such work by the institution provided ESI insurance cover to the workmen, and in this regard recovered the contribution in the circumstances this court is of the view that the owner of the institution and the Corporation are jointly responsible for paying the compensation to the workman for the diseases caused to the workman. And therefore the court holds that the applicant workman is entitled to compensation and costs jointly, and in this manner the reply to the said issue is given in his favour and proved in the affirmative.
Moreover, on behalf of the Corporation it is contended that, the applicant workman was not sent to the Special Medical Board, therefore he is not entitled to the benefits demanded. In this regard the applicant in this matter was engaged in hazardous activities. The ESI Page 35 of 49 C/FA/2374/2015 JUDGMENT Act, 1948 is applicable to the Opponent No. 3 institution. By doing the work of the opponent No. 3 institution the workmen has contracted Silicosis named occupational diseases. This is clearly proved from the opponent Corporation Deputy Director's document. This document is in the form of statement in which there are total 73 workmen names included, and on looking at the heading it reads 'List of insured persons who were suffering from Silicosis - Occupational Disease', which suggests that the opponent Corporation is aware that these workmen are suffering from Silicosis named occupational diseases. In this same list the workmen have expired due to this diseases, the date of their death is also shown. And there are 32 such workmen. The opponent Corporation has admitted this fact that these deceased workmen had died due to occupational diseases, and not in any other manner, and therefore he has shown the dates of these death in this statement. Inspite of this being the situation the opponent Corporation has raised the technical issue that, 'it is imperative to refer to the Special Medical Board' thus it is imperative to refer the other such workmen suffering from Silicosis before the Special Medical Board and it is necessary for the Corporation to take necessary action, and this is the bona fide object of the ESI Act, and it should be suitably achieved, but the opponent Corporation has failed to do so, because when the applicant has made his application claiming compensation on 12/6/2007 and on the said application the Corporation has not taken any action and the applicant has failed in its duty to send the applicant to the Special Medical Board with regard to his demand. Whether the court should be constrained to consider that as stated in the above list 32 workmen have died without being sent to the Special Medical Board, similarly the Corporation will wait till this workman dies so that the question of paying compensation to the applicant would remain.
Also, institution like NIOH has also expressed its doubts about the applicant having contracted Silicosis, the Corporation Halol Manager has also in his report mentioned Silicosis, thus, as per the Rules 74 the applicant is not referred to the Medical Board for Silicosis therefore he is not entitled to compensation Page 36 of 49 C/FA/2374/2015 JUDGMENT such reply cannot be accepted. The applicant had made application on 12/6/2007 claiming compensation thus it was necessary for the Opponent Corporation to refer him to the Special Medical Board, and also this matter is of the year 2008, even then the opponent Corporation could have made such application, but the opponent Corporation was of the clear belief that the applicant has contracted Silicosis therefore he was not referred to the Special Medical Board and no such necessity had arisen. In this matter the only defense that the opponent Corporation has taken is that, continuously for six months the applicant had not worked in the opponent No. 3 institution, therefore he would not have diseases named Silicosis. Such defense cannot be accepted in view of the earlier discussions. Also, in the Corporation Manual on page No. 152 L 4.69A relaxation is granted, thus although the applicant had contracted Silicosis named occupational disease then also the opponent Corporation has anyhow intentionally not taken any trouble to pay the compensation, there are no reasons for not believing the same. Thus the applicant workman was intentionally not referred to the Special Medical board by the opponent Corporation as per Rules 74 and thus under the cover of the said Rules the defense by the opponent Corporation cannot be accepted."
21. What I have been able to gather from the discussion in the impugned judgment of the ESI Court is that there is thumping, cogent and convincing evidence on record produced by the Corporation itself to arrive at an irresistible conclusion that the workmen are suffering from silicosis. It is very unfortunate to note that there were, in all, 15 workmen who contracted silicosis, and out of those, six succumbed to the dreaded disease. Nine survived and preferred the applications before the ESI Court. I am unable to understand that with cogent evidence of silicosis on record, why the Corporation has thought fit to prefer these appeals. The Employees' State Insurance Act, 1948 came to be enacted to provide for certain Page 37 of 49 C/FA/2374/2015 JUDGMENT benefits to the employees in cases of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto. The callows manner in which the Corporation dealt with the applications filed by the individual workmen frustrated the very object with which the Act came to be enacted. Even on the day when the applications were filed, the record maintained by the Corporation itself revealed that they all were suffering from silicosis. The Corporation could have still referred them to the Medical Board for their medical examination, but for the reasons best known, none of the workmen was sent to the Medical Board. It is in light of this factual position, I need to consider the submissions of Mr. Vasavada that in the absence of any report of the Medical Board, the ESI Court could not have proceeded to decide the applications on merit.
22. At this stage, let me look into few provisions of the Act, 1948. Section 52-A of the Act, reads as under;
"[52A. Occupational disease.
(1) If an employee employed in any employment specified in Part A of the Third Schedule contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in the employment specified in Part B of that Schedule for a continuous period of not less than six months contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in any employment specified in Part C of that Schedule for such continuous period as the Corporation may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall, unless the contrary is Page 38 of 49 C/FA/2374/2015 JUDGMENT proved, be deemed to be an employment injury arising out of and in the course of employment.
(2) (i) Where the Central Government or a State Government, as the case may be, adds any description of employment to the employments specified in Schedule III to the Workmen s Compensation Act, 1923 (8 of 1923), by virtue of the powers vested in it under sub-section (3) of section 3 of the said Act, the said description of employment and the occupational diseases specified under that sub-section as peculiar to that description of employment shall be deemed to form part of the Third Schedule.
(ii) Without prejudice to the provisions of clause (i), the Corporation after giving, by notification in the Official Ga-
zette, not less than three months notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in the Third Schedule and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of this Act shall apply, as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.
(3) Save as provided by sub-sections (1) and (2), no benefit shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(4) The provisions of section 51A shall not apply to the cases to which this section applies."
23. Section 54-A of the Act, 1948 reads as under;
"[54A. References to medical boards and appeals to medical appeal tribunals and Employees Insurance Courts.Page 39 of 49
C/FA/2374/2015 JUDGMENT (1) The case of any insured person for permanent disablement benefit shall be referred by the Corporation to a medical board for determination of the disablement question and if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed, it shall again be so referred to the medical board not later than the end of the period taken into account by the provisional assessment.
(2) If the insured person or the Corporation is not satisfied with the decision of the medical board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to-
(i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employees Insurance Court, or
(ii) the Employees Insurance Court directly]: 2[Provided that no appeal by an insured person shall lie under this sub-section if such person has applied for commutation of disablement benefit on the basis of the decision of the medical board and received the commuted value of such benefit: Provided further that no appeal by the Corporation shall lie under this sub-section if the Corporation paid the commuted value of the disablement benefit on the basis of the decision of the medical board."
24. Section 75(2-A) of the Act, 1948 reads as under;
"75[(2A) If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees' Insurance Court under sub-section (2) of section 54A in Page 40 of 49 C/FA/2374/2015 JUDGMENT which case the Employees' Insurance Court may itself determine all the issues arising before it."
25. Having regard to the provisions of section 75(2-A), I am of the view that the contention of Mr. Vasavada deserves to be negatived. Section 75(2-A) of the Act, 1948 stipulates that in the course of the proceedings before the Court if the question as regards the disablement arises and the decision of a Medical Board or a Medical Appeal Tribunal has not been obtained on the same, and the decision of such question is necessary for the determination of the claim or question before the Court, then in such a contingency, the Court needs to direct the Corporation to have the question decided and, thereafter, proceed with the determination of the claim. In the case on hand, the ESI Court had all the necessary materials before it for the determination of the claim. The decision of the Medical Board was not necessary in the facts of the present case. The documentary evidence on record, by itself, was sufficient for the Court to arrive at a irresistible conclusion that all the applicants before it were suffering from silicosis.
26. Further, Section 75 of the Act which enumerates the matters to be decided by the Employees' Insurance Court, states, among other things, that if any question or dispute arises as to the right of any person to any benefit..., or any other matter required to be or which may be decided by the Employees' Insurance Court under the Act, such a question or dispute shall be decided by such Court in accordance with the Act subject to Sub-section (2A) thereof. Sub-section (2A) specifically provides about obtaining the decision of a Medical Board or Medical Appeal Tribunal, as the case may be, when it was not obtained on a disablement question earlier except in Page 41 of 49 C/FA/2374/2015 JUDGMENT respect of an appeal before such Court under Section 54A(2) of the Act, in which case the Court itself determines all the issues arising before it. While Sub-section (1) of Section 75 gives an omnibus jurisdiction to the Employees' Insurance Court to decide the correctness or otherwise of the decision of the Medical Board or Medical Appeal Tribunal, Sub-section (2A) thereof specifically and unambiguously makes it clear that in an appeal under Section 54A(2) against the decision of a Medical Board or Medical Appeal Tribunal, the Employees' Insurance Court itself should determine all the issues arising before it.
27. Section 78 of the Act equates the Employees' Insurance Court with a civil Court for the purposes specified in Sub- section (1) and makes its order enforceable as a civil Court's decree under Sub-section (4) and provides for its procedure to be such as prescribed by the Rules made by the State Government. Therefore, in the absence of any other procedure prescribed by the State Government in this behalf, the procedure and powers of the Employees' Insurance Court can probably be taken as similar to those of a civil Court under the Code of Civil Procedure, 1908, including in respect of exercise of its appellate jurisdiction under Section 54A(2) of the Act. Consequently, even the question of the presence or absence of any provision as to the manner in which the Employees' Insurance Court has to examine the correctness or otherwise of the report of the Medical Appeal Tribunal, is irrelevant and it is pre-eminently appropriate for the Employees' Insurance Court not only to decide the correctness or otherwise of the decision of the Medical Board or the Medical Appeal Tribunal Page 42 of 49 C/FA/2374/2015 JUDGMENT but also to come to consequential conclusions about the entitlement of the employee to the benefits under the Act in consequence of the disablement suffered due to an employment injury arising out of and in the course of employment. It, therefore, undoubtedly, had the jurisdiction to assess the extent of loss of earning capacity on the evidence and material made available to it in this behalf.
28. Almost identical contention, as canvassed by Mr. Vasavada in the present case, was raised before a Division Bench of the Calcutta High Court in the case of Employees' State Insurance Corporation, West Bengal vs. Ganapat Lohar, A.O.D No.321 of 1970, the Division Bench, while rejecting such contention, held as under;
"The conclusion is therefore inescapable that the employer of the Respondent admitted that permanent disablement was caused to the Respondent during the course of his employment in the shape of cataract in his right eye which after removal by operation did not restore eye sight of the Respondent. The Defendant No. 1, ESI Corporation in its pleadings did not raise the question regarding disablement of the Respondent as required under Section 75(2A) of the Act, although the said section was inserted into the Act by amending Act No. 44 of 1966 with effect from 28.1.68. If the Employees' State Insurance Corporation really intended to contend t hat the Respondent did not suffer any disablement on account of any employment injury as alleged, it was for the Corporation to proceed according to Section 54-A of the Act or to obtain a direction from the Court as contemplated under the aforesaid Section 75(2A). The Corporation did not do what was expected of it. Now Mr. Mukherjee contends that the Court itself should have given appropriate direction in this behalf and the omission of the ESI Court can be made good by this Court exercising its appellate powers. This argument does not impress us. The injury we have noticed was caused in March 1968, we are now in January, 1984. A very long Page 43 of 49 C/FA/2374/2015 JUDGMENT time has elapsed from the date of injury. We are afraid that no useful purpose will be served at this distant date by directing the determination of the question on disablement to be decided by the Medical Board. In this connection we may refer to Regulation No. 72 of the Employees' State Insurance (General Regulations), 1950, which broadly lays down that reference to Medical Board is to be made within 12 months from the date of disablement. We mean to say that if a reference to the Medical Board was made within a reasonably short time it might have been possible for the Medical Board to give a precise opinion on the question of disablement from an examination of the affected organ; but if reference to Medical Board is not made in time degenerative conditions may ensue and the Medical Board may be handicapped in giving a precise opinion. In the present case a direction for reference to the Medical Board would be much too belated and would serve no purpose at all. We conclude, therefore that on the materials on record and in the state of pleadings and in view of the conduct of the Employees' State Insurance Corporation the court below was justified in concluding that there was a permanent disablement to the Respondent; in course of his employment he suffered injury in the right eye-ball causing cataract which inspite of removal by operation did not restore him his vision.
[6] Regarding the second point urged by Mr. Mukherjee we may not disagree that PW 2 examining the Respondent on 26.12.68 deposed right eye vitreous capacities and muscular oedema, left eye early sign of cataract. He opined that in his opinion the condition of the right eye was due to injury. He opined further that there was no chance of recovery of the vision of the right eye and the vision of the left eye has been affected from the injury of the right eye. This is not a case of loss of vision of one eye without complication or disfigurement of eyeball attracting item No. 32 of the Second Schedule. So the argument that 30% loss of earning capacity prescribed under item No. 32 of the Second Schedule applied cannot be accepted.
[7] In the result we conclude that the appeal has no merit and should fail. Accordingly the appeal is dismissed on contest. We make no order as to costs."Page 44 of 49
C/FA/2374/2015 JUDGMENT
29. I may also refer to one decision of the Delhi High Court in the case of Prem Kumari vs. Employees' State Insurance Corporation, reported in (2005) ILLJ 777 Del. The relevant observations are as under;
"2. It is contended by counsel for the appellant that this is a case where the accident took place on 15.7.1988 and the workman suffered an injury which was certified by the ESI hospital to be 75% permanent. The same should be taken as the basis of calculation of award rather than insisting on formalities which are beyond the control of the workman.
3. Counsel for the respondent submits that the trial court is absolutely right in arriving at a conclusion that no award can be made in the absence of a certificate by the Medical Board.
4. Heard counsel for the parties and have gone through the material on record as also the judgment under challenge. It appears to me that the learned judge has overlooked the provision of Section 54A of the Employees State Insurance Act, 1948 which makes it incumbant upon the Corporation to have the Board examine the injured. In the absence of the Corporation having exercised its right to have the injured examined by a Medical Board, there is no reason why the workman should suffer.
5. In the present case, since the injuries have been certified by the ESI hospital itself to be permanent injury of 75%, I see no reason why this should not be taken as the basis for compensation. In the facts and circumstances of this case, the injury certified by the hospital should form the basis of calculating the compensation due to the workman. Consequently, I hold that the injury suffered by the workman is 75% and permanent in nature. In that view of the matter, I set aside the order under challenge and direct the trial court to re-calculate the compensation based on my findings above. FAO 170/2003 is allowed to this extent. The same stands disposed of. CMs 378, 425/2003 also stand disposed of. Parties to appear before the ESIC Court on 27th October, 2004. "Page 45 of 49
C/FA/2374/2015 JUDGMENT
30. Therefore, it is clear that there is neither a substantial question of law nor a substantial question of fact involved in these appeals to bring the appeals within the scope of Section 82 of the Act. Section 82 Sub-section (2) provides the scope for an appeal to the High Court only if it involves a substantial question of law and hence, an appeal does not lie in any of these cases. Even otherwise the impugned judgments are not such as to capacitate the High Court to interfere. As held in Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi :
AIR1959SC492 in a matter, of course, arising under Section 115 of the Code of Civil Procedure, if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. The principle squarely applies to the facts of the present appeal and the appeal should, therefore, fail.
31. Before I leave this matter, it would be appropriate to refer to the observations of the Supreme Court in the case of Employees State Insurance Corporation vs. Ameer Hasan, AIR 1981 SC 1741: LNID 1980 SC 500 and more particularly para 3 thereof, which introduced as under;
"WHAT more justice did the Corporation seek? Save and except to satisfy its own ego it carried the matter to this Court by way of the present petition seeking special leave against the decision of the High Court.
An attempt was made to urge that there was some conflict of decisions in the view taken by the Calcutta High Court and the view taken by the Allahabad High Court. The judgment under appeal has considered the Calcutta judgment which is unfavourable to the workman. Such minor conflicts need not provide a fruitful Page 46 of 49 C/FA/2374/2015 JUDGMENT ground to the Corporation to rush to this Court. One cannot appreciate this too legalistic approach in the name of some conflict in decisions to force a workman whose misfortune was that he was governed by the Act and a beneficiary of the beneficent provisions of the Act to be dragged to this Court to fight for a meagre compensation with his own funds against a powerful Corporation trying to thwart his claim with the funds obtained from the very workman. The glaring paradox is that the workman suffers deduction from his wages so that the Corporation can fight him with his own money. This has led to mounting disaffection amongst industrial workmen against the Corporation. What faith the workman will have in the Corporation set up to ameliorate his misery multiplying it by appeal to Court after Court compelling the workman to follow in the footsteps of the Corporation to save his meagre benefit? A time has come to cry a halt to this litigious mentality on the part of public corporations set up to achieve the goals enumerated in the Constitution. This approach is destructive of the purpose for which Corporation was set up. What then is the difference between a private employer who was liable for compensation under Workmen's Compensation Act and a public sector Corporation set up to replace the private employer for providing the much needed medical relief? In fact such an approach needs to be disapproved and that is why a speaking order."
32. It would also be appropriate to refer to the observations made by the Supreme Court in the case of Transport Corporation of India, Vs. Employees' State Insurance Corpn. & Anr., reported in AIR 2000 SC 238, wherein it has been quoted from the earlier judgment in case of Buckingham and Carnatic Co. Ltd. v. Venkatiah, reported in AIR 1964 SC 1272 as under :-
"It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea Page 47 of 49 C/FA/2374/2015 JUDGMENT raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, Courts would be justified in preferring that construction to the other which may not be able to further the object of the Act"
It has also been again quoted as under :-
"Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment."
33. In Regional Provident Fund Commissioner Vs. Hooghly Mills Co. Ltd. & Ors, reported in AIR 2012 SCW 902, the Hon'ble Apex Court has referring to the Provident Funds Act made observation as under :-
"Under the Directive Principles the State has the obligation for securing just and humane conditions of work which includes a living wage and decent standard of life. The said Act obviously seeks to promote those goals. Therefore, interpretation of the said Act must not only be liberal but it must be informed by the values of Directive Principles. Therefore, an awareness of the social perspective of the Act must guide the interpretative process of the legislative device."
34. It is well accepted principles regarding the interpretation Page 48 of 49 C/FA/2374/2015 JUDGMENT about the breach in such cases. In Seaford Court Estates Ltd. Vs. Asher, reported in (1949) 2 All ER 155 (CA), Lord Denning, advised a purposive approach to the interpretation of a word used in a statute and observed :-
"A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
35. In the result, this first appeal fails and is hereby dismissed.
36. In view of the above, all the connected first appeals should also fail and are hereby dismissed.
(J.B.PARDIWALA, J) Vahid Page 49 of 49