JUDGMENT : B.N. Mahapatra, J. - The present appeal has been filed by the appellant u/s 30 of the Workmen's Compensation Act, 1923 challenging the legality and propriety of the judgment dated 27.12.2005 passed by the Commissioner under the Workmen's Compensation Act-cum-Assistant Labour Commissioner, Angul (for short, "Commissioner") in W.C. Case No. 11 of 2004 on the ground that the same is illegal, perverse and contrary to the provisions of law. Facts giving rise to the present appeal are that the claimant respondent No. 1's husband was working as a helper at Athamalik Structure under the appellant. On 24.10.2003 at about 3.30 P.M., while he was performing his duty he came in contact with electric current and sustained severe burnt injury on his left hand and other parts of his body and he was shifted to Athamalik, Boinda and Angul District Headquarters Hospital. The doctor amputed his left hand below the elbow. Further case of the workman is that due to such accident he is unable to perform his duty which he was doing prior to this accident. In the claim application, the workman, the husband of respondent No. 1 stated that he was 39 years old and his monthly wage was Rs. 4,100 at the time of accident. With these averments, the workman claimed an amount of Rs. 3,13,992 towards compensation along with interest. 2. The opposite party/appellant on being noticed filed written statement admitting the accident, but denied its liability for payment of compensation on the ground that at the time of accident the applicant was not directed by the Officer or Lineman to do the work and applicant was doing the job in his personal capacity. There was no loss of earning capacity to him inasmuch as he is getting all the service benefits. However, regarding monthly wages and age, the appellant has not raised any dispute. On the pleadings of the rival parties, the Commissioner framed two issues (i) whether applicant sustained injury due to the accident occurred in course of and arising out of his employment? (ii) What is his loss of earning capacity? 3. After taking into consideration both oral and documentary evidence, the learned Commissioner held that the workman met with an accident in course of the employment. (ii) What is his loss of earning capacity? 3. After taking into consideration both oral and documentary evidence, the learned Commissioner held that the workman met with an accident in course of the employment. It is further held that the disability of the workman is 70% as he has lost vital limb/organ of the body and has also lost 70% of his earning capacity as workman and the injury suffered by him is permanent in nature. Monthly income of the workman is taken at Rs. 4,000. The learned Commissioner on the basis of the school certificate has taken the age of the workman at 53 years as on the date of occurrence. Accordingly, it computed compensation at Rs. 2,39,702 and directed the appellant to deposit the said amount. 4. Mr. B.K. Pattnaik, learned counsel appearing for the appellant submitted that the Commissioner is not justified in holding that the accident arose out of and in course of workman's employment as he was working beyond the duty hours and he had undertaken the work on his personal capacity. Since after the accident, the workman is continuing to work under the appellant and drawing emoluments as per his entitlement, the award of compensation to the workman by the Commissioner is not sustainable in law. The Commissioner is not justified in holding that the workman has lost 70% of his earning capacity in absence of the medical evidence and against the percentage of loss as specified in Part-II under Clause-4 of the W.C. Act. Mr. Pattnaik placing reliance upon the judgment of this Court in the case of Prasanta Kumar Majhi Vs. Managing Director, Orissa Mining Corporation, Bhubaneswar and others, submitted that the impugned judgment is not sustainable in law. After accident, the workman has been working as yet and all the service benefits have been given to him. 5. Mr. R.K. Pradhan, learned counsel for the workman respondent submitted that the judgment of this Court in Prasanta Kumar Majhi's case (supra) is in relation to loss of earning but u/s 4(1), Explanation 2(c) read with Schedule, the compensation is paid because of loss of earning capacity. It is not loss of earning. Therefore, in order to award compensation, loss of earning has nothing to do with the computation of compensation, on loss of earning capacity. It is not loss of earning. Therefore, in order to award compensation, loss of earning has nothing to do with the computation of compensation, on loss of earning capacity. This aspect has not been taken into consideration by the Division Bench of this Court referred to supra. In support of his contention, Mr. Pradhan placing reliance upon a Full Bench judgment of this Court in the case of Kunei Minz Vs. R.C. Nayak and Another Orissa State Electricity Board and Others Vs. Kedar Charan Lenka and a judgment of the Bombay High Court in the case of Namdeo Patil Vs. Bharat Patil and Another, submitted that there is no infirmity or illegality in the judgment of the learned Commissioner. 6. On the rival contentions of the parties, the following questions fall for consideration by this Court: (i) Whether the workman, who is shifted to another kind of job with same wages/salary as the injury has made him unfit for continuing in the same work which he was performing before the accident, can claim compensation on loss of earning capacity even though there is no factual loss of earning? (ii) Whether loss of earning is distinct from loss of earning capacity? (iii) Whether the injured workman or legal heirs of the deceased-workman are not entitled to get the statutory benefit under the Workmen's Compensation Act, 1923 on the ground that the injured employee or the legal heir of the deceased employee has been given employment by the Management with same wages/salary in a different work? 7. Questions Nos. (i), (ii) and (iii) being interlinked, they are dealt with together, 8. To deal with the aforesaid questions, it is necessary to know what is contemplated u/s 4(1)(c) of the Act, 1923. The relevant portion of the said provisions is extracted below: 4. 7. Questions Nos. (i), (ii) and (iii) being interlinked, they are dealt with together, 8. To deal with the aforesaid questions, it is necessary to know what is contemplated u/s 4(1)(c) of the Act, 1923. The relevant portion of the said provisions is extracted below: 4. Amount of compensation--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-- *** (c) where permanent partial disablement results from the injury (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.... (Underlined for emphasis) Bare reading of the above provision makes it clear that the compensation is to be paid to an injured, where permanent/partial disablement results from injury for loss of earning capacity and not for loss of earning. Therefore, the stand of the appellant that after accident the injured was given employment and he was earning equal salary/wage, and he is not entitled to get any further compensation on account of disability which resulted from the injury is not sustainable in law. The legislative intent is to award compensation for loss of earning capacity in case of permanent or partial disablement and it has nothing to do with giving any engagement to an inured employee after the accident. 9. This Court in the case of Kedar Charan Lenka (supra), held as under: 5. Board's stand is absence of loss of earning, while claimant lays emphasis on loss of earning capacity. The two concepts have conceptual difference. In case there is no loss of earning and there is continuance of engagement, a reference to Sec. 4(1)(c)(ii) of the-Act is necessary to appreciate the distinction. The plea of employers that in case of continuance of engagement and non-reduction in earning compensation is not payable has not found favour with Courts. The two concepts have conceptual difference. In case there is no loss of earning and there is continuance of engagement, a reference to Sec. 4(1)(c)(ii) of the-Act is necessary to appreciate the distinction. The plea of employers that in case of continuance of engagement and non-reduction in earning compensation is not payable has not found favour with Courts. As observed by the House of Lords in the case of Ball v. William Bunt and Sons Ltd., 1912 AC 496, the Act regarded a workman only as a wage-earner and was concerned not with physical pain on suffering or disfigurement to which a workman might be subjected by accident; but only with the loss of power to earn wages resulting from the inquiry. Lord Denning in Fairloy v. John Thomson, (1973) 2 Lloyd's Sop 40 observed as follows: It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages. Similar view has also been taken by the Court of Appeal, Civil Division, England in Moeliker v. Ravorile and Co. Ltd., 1977 SCJ 364 . "In capacity for work" is not the same thing as "in capacity to work". Latter means the loss or diminution of wage-earning capacity and it includes inability to work if that be the result of the accident. Calcutta High Court in Ram Naresh Singh v. Lodha Colliery Co., (1920) Ltd., 1973 Lab IC 1656; Sarat Chaterjee and Co. (P) Ltd. v. Mohd. Khalil, 1979 ACJ 106; and the Rajasthan High Court in Executive Engineer, PWD Udaipur v. Narain Lal, 1978 ACJ 163 have adopted the view. In considering loss of earning capacity in the case of a "permanent partial disablement", the comparison between the wages drawn by workman before and after the accident from his employer at the time of accident is not a determinative factor. If that be so, a cunning employer to tide over liability may offer a temporary employment to the claimant-workman to deprive the latter his entitlements under the Act. That would be against the legislative intent. If that be so, a cunning employer to tide over liability may offer a temporary employment to the claimant-workman to deprive the latter his entitlements under the Act. That would be against the legislative intent. This Court had also occasion to deal with an almost similar case where plea of existing job allotment and non-reduction in wages was involved. The present appellant was the employer in that case. (See Debaki Swain and Another Vs. Executive Engineer, Electrical Division, Orissa State Electricity Board, ). Plea that there being no loss in the earning, compensation could not have been awarded was not accepted. The matter was also elaborately discussed in Chief Workshop Manager (P), Carriage Repair Workshop, Mancheswar Railway Workshop, Bhubaneswar v. Sri Akshya Kumar Rout, 80 (1995) CLT 594. Legislative intent is to consider loss of earning capacity in case of permanent/partial disablement. The effect of any temporary engagement and/or temporary job may practically result in no reduction in emolument. That does not have any determinative effect. Plea of the Board and its functionaries is without any merit. 10. In the case of Prasanta Kumar Majhi (supra), this Court has held that loss of earning capacity is the basis for grant of compensation. Where there is no toss of earning capacity, an employee is not entitled to get compensation under the Act. It is further held that it is not possible for the High Court to agree as a general proposition that continuation in the same employment without any loss in wages cannot mean that there is no loss of earning capacity. It depends upon facts of each case. There can be loss of earning capacity even if there is no actual loss of wage. But when the injured-workman continues to do the same work without any difficulty and earns the same wage, he cannot be said to have suffered any loss of earning capacity. 11. The Hon'ble Supreme Court in the case of Balbir Kaur and Another Vs. Steel Authority of India Ltd. and Others held as under: 13...But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family-This is rather unfortunate but this is a reality. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family-This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation. *** 15. It is upon consideration of the above noted provisions of Section 4, it was contended that question of compulsory depositing of the gratuity amount does not and cannot arise. We shall come back to the deposit of the Provident Fund but as regards the Gratuity amount, be it noted that there is a mandate of the statute that Gratuity is to be paid to the employee on his retirement or to his dependants in the event of his early death-the introduction of Family Pension Scheme by which the employee is compelled to deposit the Gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1972). The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs or the nominees of the concerned employees but by the introduction of the Family Pension Scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adaptation of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not. 16. 16. Adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a statute and this statutory obligation cannot possibly be deferred in the event of an untimely death of a worker or an employee. As noticed above, the family needs the money in lump sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a butter to the retirement of or on the death of an employee. Situations are not difficult to conceive when the family needs some lump-sum amount but in the event of deposit of the same with the employer, the heirs of the deceased employee could be put into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise. 12. In the instant case, when the workman met with the accident on 24.10.2003, the learned Commissioner categorically held as under: ...The case of applicant that his left hand was amputated below elbow joint was not assailed by O.P. in written statement and also in course of hearing adducing evidence in defence. Applicant confirmed his case in his deposition. The discharge certificate of Angul Hospital, Ext. 3 speaks that the amputation was made on 27.11.03. The disability certificate, Ext. 4 issued by Angul District Medical Board also confirmed that applicant suffered amputation of his left upper limb below elbow, his disability is permanent and comes under orthopaedic handicapped ness which amounts to 70%. P.W.3, Dr. Ajoya Ch. Das in his disposition confirmed that on 27.11.2003 amputation was made below elbow joint i.e. 3 to 4 inch from elbow joint. He confirmed the issuance of Ext. 3 and Ext. 4. Further P.W.2 stated that due to injury suffered, applicant became incapable to do the manual job in his hand to work as labourer. In face of medical evidence led by applicant I believe the case of applicant that injury suffered by him is permanent in nature and percentage of disability of applicant is 70% due to injury suffered by him and applicant became incapable to do manual job and to work as labour which manual strength is necessary. In face of medical evidence led by applicant I believe the case of applicant that injury suffered by him is permanent in nature and percentage of disability of applicant is 70% due to injury suffered by him and applicant became incapable to do manual job and to work as labour which manual strength is necessary. The advocate for applicant urged that applicant lost his total earning capacity due to amputation of his hand but there is no evidence that applicant has lost his earning capacity/unable to do all work which he was capable of performing at the time of disablement. Moreover applicant admittedly working as watchman after accident although he was posted as helper. So it cannot be held that applicant lost his total earning capacity due to injury suffered by him. However I believe the deposition of applicant that due to injury suffered by him he could not get promotion to the post of Lineman. Considering the gravity and nature of injury I believe the opinion of medical expert that his disability is 70% as applicant lost a vital limb/organ of body. As per item No. 3 of Part-II of scheduled appended to Workmen's Compensation Act loss of earning capacity is 70% for amputation of 8" from tip of acromen to less than 11.43 cms below tip of elecranon and as per item No. 4 loss of earning capacity is 60% for loss of a hand or amputation from 11.43 cms below tip of elecranon. As in this case left upper limb of applicant was amputed below elbow I hold considering the opinion of medical expert loss of earning capacity of applicant is 70% and injury suffered by him is permanent in nature. 13. This Court in the case of Kunei Minz (supra), held that in case of specific instances percentage as specified in the Schedule should be accepted and compensation should be awarded without any proof of loss of earning capacity, but a claimant is not debarred from proving that he has suffered higher percentage of loss of earning capacity. 14. In the instant case, before the accident the workman was working as a helper and he suffered amputation of his left upper limb below elbow, he became incapable to do manual job in his hand to work as labourer. The workman was working as a watchman after accident although earlier he was posted as helper. 14. In the instant case, before the accident the workman was working as a helper and he suffered amputation of his left upper limb below elbow, he became incapable to do manual job in his hand to work as labourer. The workman was working as a watchman after accident although earlier he was posted as helper. Due to injury suffered by him, the workman could not get promotion to the post of Lineman. Considering the gravity and nature of injury, the learned Commissioner accepted opinion of medical expert that disability of workman is 70% as he lost a vital limb/organ of body. 15. In view of the above, this Court does not find any infirmity or illegality in the impugned judgment passed by the Commissioner. Therefore, the Commissioner is directed to disburse the amount of compensation along with interest accrued thereon in favour of the workman forthwith. In the result, the appeal is dismissed. No order as to costs. Final Result : Dismissed