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2002 DIGILAW 580 (KAR)

BHARATH GOLD MINES LTD. v. MANIMALA

2002-09-19

M.S.RAJENDRA PRASAD

body2002
RAJENDRA PRASAD, J. ( 1 ) THIS misc. first appeal by the BHARATH GOLD MINES LTD. . , oorgaum, K. G. F. filed under section 30 (1) of the Workmen's Compensation Act, 1923 is directed against the order dated 25. 1. 2001 in W. C. A. F. C. No. 6 of 1999, on the file of Commissioner for Workmen's compensation, Kolar District, K. G. F. , on the ground that subject-matter of appeal involves substantial question of law. ( 2 ) THE court has heard the arguments of the learned counsel appearing on both sides. ( 3 ) IN view of the grounds urged in the memorandum of appeal and at the time of arguments, the following points would arise for consideration: (1) Whether the appeal involves any substantial question of law? (2) What order? ( 4 ) MR. A. S. Bopanna, learned counsel for the appellant, strenuously contended that the material on record shows that the order impugned is unsustainable in law and the medical evidence could not have been brushed aside by the Commissioner and further could not have observed that there was no need for post-mortem as the deceased had died a natural death. The commissioner had also erred in not placing reliance on the documentary evidence issued by the competent authorities. He has also contended that the subject-matter of the appeal involves a substantial question of law. Hence he has prayed for allowing the appeal. ( 5 ) ON the contrary, Mr. A. J. Srinivasan, learned counsel for the respondents, strenuously contended that the order impugned under the appeal is legal and valid. The commissioner, had considered the facts in issue in the right perspective. The material on record also shows that the deceased had died only on account of occupational disease. The Workmen's Compensation Act has been a beneficial legislation to safeguard the interests of the workmen and his legal representatives. He has relied upon the following two decisions: (1) Renukabai Gedam v. Manager, Nagpur Times, Nagpur, 1984 ACJ 753 (Bombay ). (2) Employees' State Insurance Corporation v. Ameer Hasan, S. L. P. (Civil) No. 1584 of 1980. Placing reliance on the ratio of the afore said decision, he has prayed for dismissal of the appeal. He has relied upon the following two decisions: (1) Renukabai Gedam v. Manager, Nagpur Times, Nagpur, 1984 ACJ 753 (Bombay ). (2) Employees' State Insurance Corporation v. Ameer Hasan, S. L. P. (Civil) No. 1584 of 1980. Placing reliance on the ratio of the afore said decision, he has prayed for dismissal of the appeal. ( 6 ) FOLLOWING the few undisputed facts are necessary for disposal of the appeal on hand: the deceased Soku was working with the appellant company which is a public sector undertaking engaged in extraction of gold bearing ore and purification of gold. The respondent No. 1 is the wife and other respondents are the children of deceased soku, who died on 14. 11. 1998. The appellant Corporation had also deposited a sum of Rs. 2,07,300 as compensation payable to the respondents in pursuance of the order impugned. ( 7 ) FROM the material on record, it is also seen that the respondents herein had submitted a claim petition on 29. 11. 1999 under section 22 of the Workmen's Compensation Act, 1923 praying for grant of 100 per cent of compensation on account of death of Soku due to occupational disease. The said petition had become contentious. It was contended that respondent no. 1 had submitted Form B stating that the deceased had died due to alcoholic encephalopathy. The bone of contention of the Corporation was to the effect that the medical Board of B. G. M. L. , Oorgaum, k. G. F. had examined Soku and as per the medical Report, Soku was having 20 per cent of pneumoconiosis PK Grade-II and accordingly respondent No. 1 accepting the same she had also submitted Form B and the respondent No. 1 now cannot seek any enhancement in this regard. During the course of inquiry, the respondent No. 1 got herself examined as PW 1 and also relied upon the oral evidence of PW 2, the brother of the deceased Soku and had also relied upon two documents. On the contrary, the Corporation has examined Dr. Rajendra Kumar B and had also relied upon Exhs. R - 1 to R-5. ( 8 ) AFTER appreciation of the evidence on record, the Commissioner came to the conclusion that the respondents-claimants are entitled for 100 per cent compensation in this regard. Feeling aggrieved by the said order, the appellant Corporation has come up with the instant appeal. Rajendra Kumar B and had also relied upon Exhs. R - 1 to R-5. ( 8 ) AFTER appreciation of the evidence on record, the Commissioner came to the conclusion that the respondents-claimants are entitled for 100 per cent compensation in this regard. Feeling aggrieved by the said order, the appellant Corporation has come up with the instant appeal. ( 9 ) IN view of the statutory provisions of the Workmen's Compensation Act, now this court will have to see whether any substantial question of law is involved in thia appeal. As per the definite say of the appellant, the Commissioner could not have ignored the medical evidence placed on record by the Corporation and further he could not have relied upon the oral evidence let in by the respondents. From the material on record, it is seen that the deceased Soku died on 14. 11. 1998 and as per exh. R - 1, the Corporation had arrived at a conclusion that the deceased employee was suffering from the said occupational disease and disablement was assessed at 20 per cent. This document is dated 17. 11. 98. In other words, this document came into existence after the death of Soku. Exh. R-2 also makes a mention that the disablement was assessed at 20 per cent on 14. 11. 98. This also makes a mention that soku had died on 14. 11. 1998. The provisions of the Karnataka Workmen's compensation (Occupational Diseases) Rules, 1968 and in particular, as per rule 3 of the said Rules pneumoconiosis disease had been recognised as an occupational disease and the same provided six stages so far as earning capacity. The other rules framed under the statute provide for examination of the employee and examination of the medical records pertaining to the said employee to arrive at particular stage of loss of earning capacity. The bone of contention of the Corporation is that the occupational disease of the employee had reached stage-II and as such the respondents were entitled for 20 per cent compensation. It is needless to say that it was incumbent on corporation to place convincing material to show as to when exactly the employee had been examined for the last time and what had been the stage of occupational disease. It is needless to say that it was incumbent on corporation to place convincing material to show as to when exactly the employee had been examined for the last time and what had been the stage of occupational disease. It is pertinent to mention that the corporation has not placed any material to show the tests conducted, when such tests had been conducted and what had been the report of the Radiologist in this regard. In other words, the Corporation has not placed any acceptable material to show the basis on which it had arrived at such a figure of 20 per cent. The case-sheet of the employee maintained by the Corporation has also not been placed on record. Admittedly, the employee had been suffering from pneumoconiosis, a recognised occupational disease. From the material on record, it is seen that Exhs. R- 1 and R-2 had been prepared subsequent to the death of the employee. Possibly, if the Corporation had placed all the available medical records in this case, the case put forth by the Corporation could have been appreciated in a better manner. For the reasons best known, the Corporation has not placed any such material. ( 10 ) IT is seen from the said decision of the Apex Court, the Apex Court has held that the assessment of earning capacity of an employee is only a question of fact and in such a case, no substantial question of law is involved. In the case on hand also, it is the bone of contention of the appellant corporation that the Commissioner could not have assessed the percentage of occupational disease at 100 per cent, whereas the document placed by the Corporation shows that the occupational disease had reached Grade-II and accordingly the respondents are entitled only to 20 per cent as compensation. This finding, in view of ratio laid down in the said decision, involves only a question of fact and not substantial question of law. In view of the facts and circumstances of the case, this court cannot go into the question of fact and hold that the subject-matter of appeal involves substantial question of law. It would suffice if it is held that the subject-matter of the appeal does not involve any substantial question of law. ( 11 ) BEFORE parting with the case, it is felt necessary to mention that this court on 18. 4. It would suffice if it is held that the subject-matter of the appeal does not involve any substantial question of law. ( 11 ) BEFORE parting with the case, it is felt necessary to mention that this court on 18. 4. 2001 had passed the interim order to the following effect:"admit. SEND for the Commissioner's record and post the hearing after vacation. In the meantime, a sum of Rs. 70,000 inclusive of the amount deposited by appellant company on 28. 12. 1998 shall be released in favour of the respondents from out of the amount deposited by the appellant with the Commissioner. The remaining amount available with the commissioner shall be invested by him in a fixed term deposit initially for a period of one year in a scheduled bank. The interest earned by the deposit shall enure for the benefit of the successful party. "the said order had been communicated to the Commissioner and as seen from the order-sheet maintained by the Commissioner, the Commissioner had passed an order releasing a sum of Rs. 70,000 which had been in terms of interim order. This court had further ordered for keeping the remaining amount with the Commissioner only and the said amount to be invested in a fixed term deposit initially for a period of one year in a scheduled bank. The interest earned by the deposit shall enure for the benefit of the successful parties. But the Commissioner, in total disregard and wilful disobedience to the interim order passed by this court, had deposited a sum of Rs. 45,767 each in the names of respondent Nos. 2 to 4 in a fixed deposit and had further ordered that respondent No. 1 being the natural guardian, is entitled to withdraw the interest that may accrue on the said deposits. There has been a glaring disobedience of interim order of this court and in the opinion of this court, the Commissioner has committed contempt of this court by violating the said interim order of this court. It is needless to emphasize that an order of any court established under law, whether interim or final, has to be totally complied with, the intention of the court should be carried out in its strict sense and there cannot be any variation or violation by any subordinate court, Tribunal or an individual. It is needless to emphasize that an order of any court established under law, whether interim or final, has to be totally complied with, the intention of the court should be carried out in its strict sense and there cannot be any variation or violation by any subordinate court, Tribunal or an individual. If not, such person will expose himself for action under the provisions of the Contempt of Courts Act, 1971. Under these circumstances, in the opinion of this court, it would be in the ends of justice if the copy of the order is placed before the Hon'ble Chief Justice, for initiating the contempt proceedings against the Commissioner for gross violation of the orders of this court after the registry ascertains the name of the officer and the place of working now, for violating the order of this court dated 18. 4. 2001, by passing the order dated 18. 5. 2001. ( 12 ) UNDER these circumstances, it would be desirable that if a copy of this order is sent to all the Commissioners for Workmen's Compensation in the State for their future guidance and to avoid any unpleasant situation. Accordingly, the Registry is directed to comply with the said direction. ( 13 ) IN the result, the court passes the following order: the appeal is dismissed. The order impugned under the appeal is confirmed. Parties to bear their own costs. Appeal dismissed. --- *** --- .