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2004 DIGILAW 534 (ORI)

Golakha Chandra Panda v. State of Orissa

2004-12-13

A.K.PARICHHA, A.K.PATNAIK

body2004
JUDGMENT A. K. PATNAIK, J. — The petitioner was appointed as a Chairman in the Office of the Cuttack Major Settlement at Cuttack on job contract basis and has been working as such in the said office for more than sixteen years. Since his appointed is on job con¬tract basis, he is not a regular employee of the State Govern¬ment and accordingly the rules and the Service Code applicable to Government servants are not applicable to the petitioner. In the year 1992, the petitioner was posted at Talajanga Camp to work as Chairman under the Assistant Settlement Officer, Balarampur Second Centre, Talajanga, by office order dated 12.8.1992. The petitioner has stated in the writ petition that on 6.2.1993 while he was returning from the village after meeting the tenants and telling them to attend the camp, he met with an accident and his left leg got fractured and he was taken to the Camp by the local people, but the camp officer did not help him in any way and only advised him to take rest in the camp. Thereafter on 8.2.1993 he was taken to the Public Health Centre, Kabatbandha, but the Medical Officer of the said Public Health Centre referred him to the S.C.B. Medical College & Hospital, Cuttack for further inves¬tigation and treatment. The Professor and Head of the Department of Orthopedics, S.C.B. Medical College & Hospital advised him for immediate operation and he was told to arrange Rs.15,000/- for his operation. He could not arrange the sum of Rs. 15,000/- and went to Kalupadaghat for local treatment but he did not have enough money to stay there for long and he had to return to the Settlement Camp. The result is that he has become physically handicapped. A xerox copy of the certificate issued by the As¬sistant Professor, Department of Orthopedics, S.C.B. Medical College & Hospital, Cuttack on 12.9.1996 to the effect that the petitioner has become a handicapped person due to road traffic accident and he is suffering a permanent disability of 50 per cent is annexed to the writ petition as Annexure-2. After joining back in his work in the office of the Settlement Officer, Cuttack Major Settlement, Cuttack, he has continued to work as Chairman on job contract basis. After joining back in his work in the office of the Settlement Officer, Cuttack Major Settlement, Cuttack, he has continued to work as Chairman on job contract basis. The petitioner has filed this writ peti¬tion for a direction to the State of Orissa to provide him free medical aid and compensation for the loss suffered by him in course of his employment under the State of Orissa and for a direction to the State of Orissa to regularize his service in any post befitting his qualification and keeping in mind the nature of injury. 2. A counter-affidavit has been filed by the Settlement Officer, Cuttack Major Settlement, Cuttack on 16.1.2003 stating that the petitioner is a job contract Class-IV employee and is working in the office of the Settlement Officer, Cuttack Major Settlement, Cuttack and that there is no provision in the rules to provide free medical aid to a job contract employee. In the said counter-affidavit it is further stated that pursuant to the judgment of the Supreme Court dated 24.4.1976 in Civil Appeal No.477/93 the State Government have formulated a scheme for regularisation of job contract employees working in the Settle¬ment and Consolidation organisations and under the said scheme, the job contract Class-IV employees shall be absorbed in regular Class-IV posts n the Tahsils as and when such posts fall vacant and new Class IV posts are created. A common gradation list has been prepared and the name of the petitioner finds place in the said list for regularisation, but as there are job contract employees senior to the petitioner who are yet to be regularised, the petitioner’s case cannot be considered for regularisation until his seniors are considered for regularisation first. 3. The first question which arises for decision in this writ petition is whether any direction can be given to forthwith regularise the services of the petitioner. As is clear from the counter-affidavit filed by the Settlement Officer, Cuttack Major Settlement, Cuttack, the State Government has framed a scheme for regularisation pursuant to the directions of the Supreme Court and a common gradation list has been drawn up and persons who are senior to the petitioner as job contract employee are yet to be regularised. Until persons who are senior to the petitioner as job contract employee are regularised, the question of regulari¬sation of the petitioner does not arise. Until persons who are senior to the petitioner as job contract employee are regularised, the question of regulari¬sation of the petitioner does not arise. Hence, at this stage no direction can be given to the opposite parties to regularise the services of the petitioner forthwith. But as and when the turn for regularisation of the petitioner comes as per his own senior¬ity, the opposite parties will consider the case of the petition¬er for regularisation in accordance with the aforesaid scheme for regularisation. 4. The second question which arises for decision in this writ petition is whether the petitioner is entitled to any free medical aid and compensation for the loss suffered by him on account of the accident on 6.2.1993. In para 4 of the writ peti¬tion, the petitioner has stated that on 6.2.1993 while he was returning from the village after making the tenants aware of their right to attend the Settlement Camp had met with an acci¬dent in which his left leg got fractured and he became invalid. This statement in para 4 of the writ petition ha not been disput¬ed in the counter-affidavit filed by the opposite parties on 17th January, 2003. Instead, in para 3 of the reply filed by the opposite party No.3 on 18th July, 2003 to the rejoinder of the petitioner, it is stated that “ as per the record the petitioner faced the accident on 6.2.1993 while he was in the Camp in Jajpur district”. Thus, the accident arose out of and in course of the employment of the petitioner. 5. The general principle of law is that compensation should ordinarily be given to workmen who sustain personal inju¬ries by accidents arising out of and in course of their employ¬ment. This general principle of law is incorporated in Section 3 of the Workmen’s Compensation Act, 1923. Hence, though the Work¬men’s Compensation Act, 1923 is only applicable to workmen as defined in Section 2(n) of the said Act and it may not be appli¬cable to the petitioner who is a job contract employee under the State Government, the petitioner will still be entitled as an employee to compensation for personal injury sustained by him in an accident arising out of and in course of his employment under the general principle of law. This will be evident from the following extract from the Statement of Objects and Reasons appended to the Workmen’s Compensation Act, 1923. “THE WORKMEN’S COMPENSATION ACT, 1923 (ACT 8 OF 1923) STATEMENT OF OBJECTS AND REASONS xx xx xx In June, 1922, a committee was convened to consider the question. This committee was composed, for the most part of members of the Imperial Legislature. After consider the numerous and opinions received by the Government of India, the committee was unanimous¬ly in favour of legislation, and drew up detailed recommendations regarding the lines which in its opinion such legislation should follow. The Bill now presented follows these recommendations closely. A number of supplementary provisions have been added where necessary, but practically no variation of importance have been made. The Bill contains two distinct proposals. In Chapter II modifications are made in the ordinary civil law affecting the liability of employers for the damages in respect of injuries sustained by their workmen; these clauses will operate only in actions before the ordinary Civil Courts. The main part of the Bill makes provisions for workmen’s compensation and sets up special machinery to deal with claims falling under this category. Both parts of the Bill, however, apply to the same classes of workmen. If the scope of the employers’ liability clauses was made wider than the scope of the workmen’s compensation provi¬sions, there would be considerable danger of a great increase in litigation. The classes included are those whose inclusion was recommended by the committee, and are specified in Schedule II. Two criteria have been followed in the determination of the classes to be included:- (1) that the Bill should be confined to industries which are more or less organized; (2) that only workmen whose occupation is hazardous should be included. The general principle is that compensation should ordinarily be given to workmen who sustained personal injuries by accidents arising out of and in the course of their employment. Compensation will also be given in certain limited circumstances for disease. The actual rates of compensation payable are based on the unanimous recommendation of the committee. The are in every case subject to fixed maxima, in accordance with the com¬mittee’s recommendations. Compensation will also be given in certain limited circumstances for disease. The actual rates of compensation payable are based on the unanimous recommendation of the committee. The are in every case subject to fixed maxima, in accordance with the com¬mittee’s recommendations. It should be remembered, however, that the more highly paid workmen will be enabled in cases to which the employers’ liability clauses will apply, to obtain damages on a scale considerably in excess of the maximum fixed for workmen’s compensation. xx xx xx” (emphasis supplied) 6. Coming now to the quantum of compensation that the petitioner will be entitled, the injury caused to the petitioner in the accident on 6.2.1993 has not resulted in total disablement of the petitioner and in fact the petitioner is still working as a Class IV job contract employee under the State Government even after the accident. Section 4 (1) (c) of the Workmen’s Compensa¬tion Act, 1923 provides that where permanent partial disablement results from an injury, the workman will be entitled to such percentage of compensation which would have been payable in case of permanent total disablement as being the percentage of loss of earning capacity caused by that injury. The certificate given by Dr. N. C. Mahakud, Assistant Professor of Orthopedics, S.C.B. Medical College & Hospital, Cuttack, shows that the petitioner suffers 50 per cent disability on account of the fracture result¬ing in deformity in left femur suffered by him in the road acci¬dent. Mr. Mishra, learned Amicus Curiae appointed by the Court for the petitioner, has stated that had the case of the petition¬er been treated as one of permanent total disability, the peti¬tioner would have got an amount of Rs.46,033/- as compensation. This amount has been arrived at by multiplying 50 per cent of his monthly wages by the relevant factor in accordance with Section 4 (1) (a) of the Workmen’s Compensation Act, 1923. If the disabili¬ty of the petitioner is taken to be 50 per cent, the compensation would work out to 50 per cent of Rs.46,033/-. Considering the aforesaid criteria for determining the compensation, in our considered opinion, a sum of Rs.23,000/- (rupees twenty-three thousand) would be fair and just compensation to the petitioner. 7. For the aforesaid reasons, we direct the opposite parties to pay the petitioner a sum of Rs. Considering the aforesaid criteria for determining the compensation, in our considered opinion, a sum of Rs.23,000/- (rupees twenty-three thousand) would be fair and just compensation to the petitioner. 7. For the aforesaid reasons, we direct the opposite parties to pay the petitioner a sum of Rs. 23,000/- (rupees twenty-three thousand) as compensation for the injury suffered by him in the accident on 6.2.1993 arising out of and in the course of his employment. This amount will be paid within a period of three months from today. We also direct that the petitioner will be considered for regularisation in accordance with the scheme framed by the State Government as indicated in the judgment as and when his turn comes for regularisation as per his own senior¬ity. With the aforesaid directions, the writ petition is disposed of. Considering however the facts and circumstances of the case, the parties shall bear their own costs. A. K. PARICHHA , J. I agree Petition disposed of.