Judgment :- RAJU, J. 1. The above appeal has been filed under clause 15 of the Letters Patent against the order of a learned single judge dated 22-6-1994 in C.M.A. No. 488 of 19%. whereunder the learned single judge has chosen to allow the appeal filed by the respondent-management herein, by setting aside the order of the Commissioner for Workmens Compensation/Deputy Commissioner of Labour II, Madras dated 23-4-1986, awarding a sum of Rs. 23,011.20, on the ground that Section 53 of the Employees State Insurance Act, 1948, bars the making of a claim of the nature before any other Forum than the Forum constituted under the Employees State Insurance Act. 2. The case of the Appellant/Claimant before the original Authority, viz. , the Deputy Commissioner of Labour II, exercising the Powers of the Commissioner for Workmens Compensation, was that be was employed along with one Balu by the Respondent/Management for fixing asbestos sheets, that on 12-12-1984 while they were fixing the asbestos sheets, the roof on which they were standing collapsed and both of them fell down from a height of 60 feet resulting in the death of his co-worker Thiru Balu, and multiple injuries and fractures on both hands to the appellant, that due to injuries sustained, in the accident which occurred in the course of his employment, he has suffered 100% kiss of earning capacity. Since he was said to have been paid a sum of Rs. 720/- as wages per mensum and in spite of demand made, the compensation due to him was not paid, he had tiled an application under the Workmens Compensation Act, 1923. The claim made was entertained as L.C. No. 36 of 1985 and overruling the objections of the respondent/management that the appellant was not employed by them and instead was employed by a building contractor engaged for repairing the building and, therefore, he was not a ‘Workman’ as defined within the meaning of Sec. 2(9) of the Workmens Compensation Act, awarded a compensation of Rs. 23,011.20 on the finding that he was a workman and treating the disability suffered by the appellant as 100%. Aggrieved, the respondent herein filed C.M.A. No. 490 of 1985 before this Court. 23,011.20 on the finding that he was a workman and treating the disability suffered by the appellant as 100%. Aggrieved, the respondent herein filed C.M.A. No. 490 of 1985 before this Court. It was contended before the learned single judge that having regard to Sec. 53 of the Employees State Insurance Act, the remedy of the appellant herein was only before the Forum constituted ( sic ) also for the rights and claims permissible under the Employees State Insurance Act had that the injured person or his dependent shall not be entitled to receive or recover, whether from the employer of the injured person or from any other person, any compensation or damages under the Workmens Compensation Act, 1923 or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under the said Act. The learned single judge, on the sole ground of bar enacted in Sec. 53 of the Employees State-Insurance Act, allowed the appeal filed by the respondent/management. Hence, the above appeal. 3. Mr. K. Chandru, learned counsel appearing for the appellant, strenuously contended that throughout the respondent/management was only contending that the appellant was not a worker in the employment of the respondent/management and in the context of such a stand taken by them, even in the affidavit filed in the application for stay in this Court, along with the appeal filed by them, the learned judge ought not to have allowed them to raise the plea of bar engrafted under Sec. 53 of the employees State Insurance Act for the first time and also on such nebulous and conflicting claims or stands taken by them as regards the status of the appellant vis-a-vis the respondent/management. The learned counsel also contended that the provisions of the Employees State Insurance Act, which are no doubt meant as a social welfare legislation with the object of protecting the workers, shall be so construed as not to permit management to defeat the legitimate claims of the workers by taking such conflicting or inconsistent stands and that the learned judge ought to have held that Sec. 53 of the Employees State Insurance Act cannot be pressed into service by the respondent/management in this case. The learned counsel for the appellant also contended that it is not all the workers that would be governed by the provisions of the Employees State Insurance Act and on the other hand, those workers in respect of whom the contribution under the Act has been actually limited by the employer concerned, that would be governed by the provisions of the Employees State Insurance Act and that the provisions of the said Act should be so construed also in the light of the regulation to make it constructive and effectively workable and not to be construed in a manner to give a handle be to the management to defeat the legitimate claims of the worker. Argued the learned council further that Sec. 53 of the Employees State Insurance Act was intended to secure that a worker does not claim more than once relief under other legislation and also under the Act and Sec. 53 of the Employees State Insurance Act cannot be so construed as completely barring the claim of a worker from being agitated and enforced under any other law for the time being in force, when the very status of the worker is in dispute by the very employer, relying upon the bar enacted under Sec. 53 of the Employees State Insurance Act. 4. Per contra , Mrs. Uma Ramanathan, learned counsel appearing for the respondent/management forcefully and with vehemence contended that being a question of law, there is no impediment in the respondent/management raising such a ground even at the appellate stage and that being a question going to the very root of the jurisdiction of the Authority functioning under the Workmens Compensation Act, there is no question of any estoppel or acquiescence and consequently, the learned single judge was justified in allowing the appeal by the respondent/management, placing reliance upon Sec. 53 of the Employees State Insurance Act. Reliance was placed on the decisions reported in Employees State Insurance Corporation v. Hotel Kalpaka International ( AIR 1993 S.C. 1530 ) and Employees State Insurance Corpn. Reliance was placed on the decisions reported in Employees State Insurance Corporation v. Hotel Kalpaka International ( AIR 1993 S.C. 1530 ) and Employees State Insurance Corpn. v. Harrison Malayalam Pvt. Ltd. ( AIR 1993 S.C. 2655 ) by the learned counsel to contend that once a person claims to be a ‘Worker’ falling within the definition of the Employees State Insurance Act, he is fully covered by the Scheme under the Employees State Insurance Act and the fact as to whether actually the contribution has been paid by the Management in respect of an individual worker becomes immaterial since there are ample provisions in the Employees State Insaneness Act to provide for the recovery of the amount due with interest thereon as also damages or penalty and, therefore, the applicability of the provision has to be decided only on the basis whether the appellant/worker is an ‘employee’ within the meaning of Sec. 2(9) of the Employees State Insurance Act. 5. We have carefully considered the submissions of learned counsel appearing on either side. Sec. 2 (9) of the Employees State Insurance Act defines what an ‘employee’ means for the purpose of the Act and it encompasses within it any person employed for wages in or in connection with the work of a factory or establishment to which the Act applies and who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work, which is ordinarily part of the work of the factory or a person whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service. Sub-Section (14) of Sec. 2 of the said Act defines an ‘insured’ person to mean a person who is or was an employee in respect of whom contributions are or were payable under the said Act and who is, by reason thereof, entitled to any of the benefits provided by the said Act. Sub-Section (14) of Sec. 2 of the said Act defines an ‘insured’ person to mean a person who is or was an employee in respect of whom contributions are or were payable under the said Act and who is, by reason thereof, entitled to any of the benefits provided by the said Act. As to the scope of the definition clause, serious centroversies were raised by the learned counsel for either side, the learned counsel for the appellant contending that the word ‘payable’ has to be so construed in the light of the provisions of the Act as also the regulations to mean ‘actually paid’ or ‘admitted to be payable’ and not as in this case of a disputed liability and particularly in the absence of any material to show that the respondent-management has treated the appellant/employee as one such for the purpose of the Act. The learned counsel for the respondent/management placed strong reliance on Sec. 38 of the Employees State Insurance Act, which stipulated that subject to the provisions of the Act, a ll employees in factories or establishments to which the said Act applied shall be insured in the manner provided by the Act. This provision in our view only casts a statutory obligation on the employer concerned and in case of default the ESI Corporation may proceed to qualify and recover the contribution and we cannot construe the said provision as by itself operating in a manner that one should be taken for granted that a particular worker, be it that he answers the description of an employee, automatically stood insured also or that he must be deemed to have been so insured. 6. In Employees State Insurance Corporation v. Hotel Kalpaka International (A.I.R. 1993 S.C. 1530), the Apex Court held, while dealing with the scheme underlying the Employees State Insurance Act and particularly Sees. 6. In Employees State Insurance Corporation v. Hotel Kalpaka International (A.I.R. 1993 S.C. 1530), the Apex Court held, while dealing with the scheme underlying the Employees State Insurance Act and particularly Sees. 26, 40 and 45A of the Act, that the primary liability is of the employer to pay not only the employers contribution, but also the employees contribution and the employer cannot be heard to contend that since he had not deducted the employees contribution on the wages of the employees, or by such employees ceasing to be in service of the management concerned, it becoming impossible for the management to recover such contribution, they could avoid their statutory liability under the Act and deny the beneficial piece of social security legislation to the employees, even by closing down the business before recovery. In Employees State Insurance Corporation v. Harrison Malayalam Pvt. Ltd. (A.I.R. 1993 S.C. 2655) also, the same view had been taken, wherein it has been held that merely because an employee ceased to be in the employment after the contribution period and benefit period expiring thereafter, the obligation of the employer to make the statutory contribution does not cease. The principles laid down in these decisions, in our view, do not help in any manner the decision of the issues raised before me either way. The question, as far as the present case is concerned, is as to whether there are materials on record to show that the appellant was an employee covered by the provisions of the Act or at any rate conceded or admitted atleast by the respondent/management to be covered by the provisions of the Act so as to enable the respondent/management to fall back upon Sec. 53 of the Employees State Insurance Act to plead the bar of proceedings by contending that the claim of the appellant could be and ought to have been vindicated only before the authorities constituted under the Employees State Insurance Act and not before the authorities constituted under the Workmens Compensation Act, 1923. If the provisions of the Employees State Insurance Act applied to the case on hand, particularly to the appellant/employee, there is no difficulty in coming to the conclusion, as the learned single judge as done in this case, that the bar engrafted in Sec. 53 of the Employees State Insurance Act applied, the same being absolute and total and does not admit of any reservation. But the question which looms large for consideration in this case is as to whether on the facts and circumstances of the case, the appellant/employee could be said to be covered under the provisions of the Act. We are of the view that the materials on record are not sufficient, at any rate, to warrant the application of the provisions contained in Sec. 53 of the Employees State Insurance Act to the case on hand, more so on the conduct of the very respondent/management, which was the appellant before the learned single judge. 7. As noticed earlier, the claim of the appellant/employee against the respondent/management was that he has been engaged along with another worker to do a particular job and in the course of doing such work and in the course of such employment of the respondent, an accident occurred, in which the appellant/employee suffered injuries in the form of loss of his both hands, which has been found to be a total loss of 100% so far as the employee was concerned. It is in such circumstances, the appellant employee approached the authority constituted under the Workmens Compensation Act, 1923, particularly in the teeth of the denial of the very status of the worker by the respondent/management. Even before the Commissioner for Workmens Compensation the respondent/management persisted in its stand that the appellant was not in their employment. As a matter of fact, the Commissioner for Workmens Compensation also adverted to the said fact, in the course of exercise undertaken by it in fixing the monthly wages, that the respondent/management, which is expected to maintain Employees State Insurance Payment Register even for contract workers, has not maintained any register in respect of the appellant in question or at least included his name, as such worker. These factual details present in the case before us coupled with the stand taken by the respondent/management disputing the very status of the appellant/employee vis-a-vis the respondent/management, as one of their workers, which stand has been defiantly and persistently pursued even in this Court, except for asserting the claim that the appellant was covered under the provisions of the Employees State Insurance Act and, therefore, Sec. 53 of the said Act stood in the way of the appellant invoking the provisions of Workmens Compensation Act, 1923, there is nothing on record to show that the appellant satisfied the requirements of the definition of ‘employee’ or the ‘injured person’ under the Employees State Insurance Act, nor did the Management specifically admit or concede such position or status so as to attract the provisions of the said Act, including the bar engrafted in Sec. 53 of the Act. If there is any dispute with reference to the applicability of the provisions of the Act or as to whether any employee is a person coming under the provisions of the Act, the person so claiming or asserting such a claim, has to raise a dispute before the Authorities constituted under the Employees State Insurance Act. We find that not only the respondent/management has avoided raising any such dispute or asserting any claim before the competent authorities constituted under the Employees State Insurance Act to have an adjudication of the same, but also miserably failed even to project a claim that the Workmens Compensation Act will have no application to the case of the claimant before the Workmens Compensation Commissioner, in view of the provision contained in Sec. 53 of the Employees State Insurance Act and had chosen to raise such a ground of bar under Sec. 53 of the Employees State Insurance Act only in an appeal filed under the provisions of the Workmens Compensation Act, 1923 though the issue may be a question of law the same depends upon a fact to be found about the status of the worker. This itself would go to show that the object of the respondent/management is to non-suit the claim of the appellant/employee under the Workmens Compensation Act, under some pretext or other and deny him relief granted under the Act, leaving him in lurch to struggle for his rights almost a decade after the injury was suffered by him, resulting in total loss of his earning capacity. If the facts and circumstances of the case and the stand taken by the respondent/management is viewed in this context, its object appears to non-suit the claim of the appellant by a bold assertion and reliance of the ESI Act even when the position and status of the appellant vis-a-vis the respondent under the provisions of the Employees State Insurance Act is still in a nebulous stage and not a final fact found or accepted, even by the management, the respondent/management fighting out still their claim that the appellant was not under the employment of the respondent/management, it hardly lies in the mouth of the respondent/management to fall back upon the bar engrafted under Sec. 53 of the Employees State Insurance Act to non-suit the appellant/worker in the proceedings instituted under the Workmens Compensation Act. Allowing the respondent/management to adopt such varying stands and permitting them to be indifferent to the claim of the appellant at the relevant stage, but yet permitting the respondent to fall back upon the bar enacted in Sec. 53 of the Employees State Insurance Act, could result in being counter-productive of defeating the benefits of a Social Welfare legislation to the secured Workmen and it will not help to perpetuate a Social Welfare legislation. Consequently we are of the view that on the facts and circumstances of the case, the learned single judge could not have allowed the appellant to raise the plea based on Sec. 53 of the Employees State Insurance Act in the absence of any positive or categorical adjudication or finding by any competent authority exercising power under the Employees State Insurance Act that the appellant is an ‘employee’ falling under the provisions of the said Act, or injured person entitled to the benefit and coverage under the Employees State Insurance A ct. 8. 8. For all the reasons stated above, we are unable to agree with the learned single judge that the provisions of Sec. 53 of the Employees State Insurance Act stood in the way of the appellant before us in enforcing his claim for damages under the Workmens Compensation Act, 1923. The conclusions to the contra arrived at by the learned single judge cannot be approved in our hands. The order of the learned single judge is set aside and that of the Commissioner for Workmens Compensation is restored. No costs. 9. In view of our orders, the amount deposited to the credit of the proceeding before the court below is permitted to be withdrawn by the appellant/employee.