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2023 DIGILAW 1607 (BOM)

Polynova Industries Ltd v. Prem Kumar Bari

2023-07-26

M.S.KARNIK

body2023
JUDGMENT/ORDER 1. Heard Mr. Agarwal, learned counsel for the appellant and Mr. Chawdikar, learned counsel for the respondents. 2. The challenge in this appeal by the appellant-employer is to the orders dtd. 11/7/2022 and 20/3/2023 passed by the Commissioner for Employees Compensation, Government of Goa, under the provisions of Employees' Compensation Act, 1926. 3. The respondent no.1-employee was employed through the contractor-respondent no.2, to work in the factory of the petitioneremployer. On 23/1/2013, when the employee was working on machine in the factory of the employer, he met with an accident that took place at 3.30 p.m. The employee suffered crushed injury of his right hand and forearm. The right hand had to be amputated. The employee suffered permanent disablement. On the date of the accident, the employee was 16 years 7 months and 17 days old. The monthly wages payable were Rs.5590.00. The case of the employee before the Commissioner for workmen compensation was that he is entitled to compensation under the provisions of the Employees Compensation Act, 1923 ('Compensation Act', for short) for the injury suffered. The employer contested the employee's claim primarily on the plea that under Sec. 53 of the Employees State Insurance Act, 1948 ('Insurance Act' for short), there exists a bar against receiving or recovery of compensation or damages under any other law and, therefore, the claim of the employee under the provisions of 'Compensation Act' is not tenable. 4. By the impugned order dtd. 11/7/2022, the Commissioner held that the employee is entitled to compensation under the Compensation Act. The employer has also challenged the order dtd. 20/3/2023 on the basis that the Commissioner was not justified in calculating compensation on the basis of minimum wages notification dtd. 4/3/2013 published in the official gazette on 14/3/2013, which was otherwise not applicable as the accident took place on 23/1/2013 i.e. prior to the issuance of the notification. 5. Learned counsel for the employer stressed on Sec. 53 of the Insurance Act, also drawing support from the decision of this court in the case of Crecent Catalysts and Chemicals vs. Vithal Shankar Bhoir & Ors., (2007) 3 Mh.L.J. 869 to submit that even if the establishment is not covered by the Insurance Act and if by subsequent order the establishment is covered, it will cover the period within which the workman suffered injury and would be entitled to the benefits under the Insurance Act. In the submission of learned counsel, this court has clearly held that in such view of the matter, the authority under the 'Compensation Act', was not justified in entertaining the claim. Learned counsel further placed reliance on the decision in the case of Bharagath Engineering vs. R. Ranganayaki |& anr., to submit that it is the obligation of the employer to pay compensation from the date the Insurance Act applies to the factories or the establishments and that Sec. 38 of the Insurance Act casts a statutory obligation on the employer to insure its employees. According to learned counsel, that being a statutory obligation, the date of commencement has to be from the date of employment of the concerned employee. Learned counsel was at pains to urge that once it is the statutory obligation to cover the employee under the provisions of Insurance Act, the entire exercise of the Commissioner in arriving at a finding that "the employer who was a registered establishment under the Insurance Act had contracted out of his obligation to the employee under the provisions of the Compensation Act by registering the employee under the Insurance Act after the accident to avail the accident benefits", is completely an insignificant consideration for granting compensation under the Compensation Act. In the submission of learned counsel, the only question to be considered is whether the employee is entitled to the benefits under the Insurance Act, for once the employer and the employee are covered by the Insurance Act, the bar of Sec. 53 of the Insurance Act operates, in which case the question of the employee claiming compensation under the Compensation Act, for any reason whatsoever, does not arise. Learned counsel, therefore, criticized the approach of the Commissioner in basing his findings on extraneous consideration that as the employee was registered under the Insurance Act after the accident took place, the Insurance Act has no application. It is further the submission of learned counsel that the Commissioner was in error in applying the notification dtd. 4/3/2013, for grant of compensation, which notification was not in existence on the date of the accident. 6. Learned counsel for the respondents, on the other hand, supported the impugned orders passed by the Commissioner. 7. Heard learned counsel. 8. It is further the submission of learned counsel that the Commissioner was in error in applying the notification dtd. 4/3/2013, for grant of compensation, which notification was not in existence on the date of the accident. 6. Learned counsel for the respondents, on the other hand, supported the impugned orders passed by the Commissioner. 7. Heard learned counsel. 8. To appreciate the rival contentions, firstly a reference to Sec. 53 of the Insurance Act, is relevant, which reads thus: "Sec. 53 - Bar against receiving or recovery of compensation or damages under any other law. An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of 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 this Act." 9. The employer has provided an insurance cover to all its permanent employees. The employees engaged by the appellants through the contractors are covered by the Insurance Act under the registration code of the contractors. The employee joined the employment on 23/1/2013. The employee who was engaged as a helper through the contractor, met with an accident, when he was cleaning the melt roll of Zimmer machine, due to which his right hand had to be amputated from the elbow. Though the case of the employer is that the employee was covered under the Insurance Act on the very same day, the findings of facts recorded by the Commissioner is that the coverage, though of the same day, was post the accident. The Commissioner opined that the contractor who was registered under the Insurance Act, had contracted out his obligation to the employee under the provisions of the Compensation Act by registering the employee under the Insurance Act after the accident to avail the accident benefits. The Commissioner arrived at a finding that the procedure under the Insurance Act was completed by the representative of the employer or the contractor post the occurrence of the accident without the consent of the employee. The Commissioner arrived at a finding that the procedure under the Insurance Act was completed by the representative of the employer or the contractor post the occurrence of the accident without the consent of the employee. The Commissioner observed that the circumstances on record point out to unsavory tactics and serious attempts to circumvent the law through resorting to fraud, and therefore, held that the employee is entitled to compensation under the Compensation Act. While arriving at such a finding, the following circumstances weighed with the authority which needs to be re-produced: "8. The Statutory Form 1 prescribed under the ESI Act requires the signature/ Thumb impression of the person to be covered under the ESI Act. The aforesaid Form 1 in this case does not bear the signature of the Applicant. It bears a finger impression (thumb?) on it. That it is on record that the Applicant being an educated person affixes his signature and does not affix his thumb impression to documents. 9. It is necessary that the prescribed Form l under the ESI Act 1948 mandates that the signature/ thumb impression of the person to be insured be borne on the aforesaid Form l. It is not an idle formality prescribed by law made by Parliament. 10. In this connection, it is necessary to refer to Ss. 17 and 17A of the Employees Compensation Act which are reproduced below:- 17. Contracting out.--Any contract or agreement whether made before or after the commencement of this Act, whereby a [employee) relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act. 17A. Duty of employer to inform employee of his rights.- Every employer shall immediately at the time of employment of an employee, inform the employee of his rights to compensation under this Act, in writing as well as through electronic means, in English or Hindi or in the official language of the area of employment, as may be understood by the employee. 11. There is nothing on record to indicate that the Applicant Employee was informed by the Opposite Parties about the protection he is entitled to under the Employees Compensation Act. 12. 11. There is nothing on record to indicate that the Applicant Employee was informed by the Opposite Parties about the protection he is entitled to under the Employees Compensation Act. 12. Furthermore, the provisions of Sec. 17 of the Employees Compensation Act prohibits an employer (Opposite Parties) from contracting out of their obligations to the Employee under the provisions of the Employees Compensation Act. 13. The fact that the thumb (7) impression of the Employee is found on Form 1 of the ESI Act, and which circumstances surrounding the imposition of this impression on Form 1 of the ESI Act has not been explained by the Opposite Parties. It is also an admitted fact that at the time of occurrence of the accident at the factory location the said Form was not filed with the ESI Corporation. It is also borne out from the documentary evidence (RTI Act, 2005) signed by the Chief Public Information Officer of ESIC that Form 1 of the ESI Act was filed online on 23/01/2013 at 03:49:24 p.m. It may be noted that it is an admitted fact that the accident occurred on 23/01/2013 at 03.30 p.m. at the factory location. The Form 1 did not bear the signature of the Applicant Employee. The impression of a finger found on the aforesaid form is neither proved nor the circumstances surrounding the finger impression being affixed has been explained by the Employer. The Applicant Employee has stated "that my brother even informed me that the Opposite Party no. 1 even obtained my thumb impression on certain documents while I was in trauma, though l am educated and knows how to read, write and even to sign." This statement of the Applicant Employee has gone unchallenged by Opposite Parties. In this connection, it may be also noticed that the date of birth filled in by the Employer Opposite Parties is shown as 18/03/1992 whereas the date of birth recorded in the High School Certificate Examination of the Applicant Employee is 6/6/19 Ninety Six. The statutory document Form 1 of the ESI Act appears to be 'a got up document/set up document". 14. In the course of cross examination of the witness Mr. The statutory document Form 1 of the ESI Act appears to be 'a got up document/set up document". 14. In the course of cross examination of the witness Mr. Haresh Mangaonkar, Manager-HR and Admin for the Opposite Party No. II it has gone on record that:- "It is true that the Applicant met with an accident in due course of employment with Opponent No. II.". "It is true that the Applicant met with an accident on 23/01/2013 at 03:30 p.m." "It is true that at relevant time when the Applicant met with an accident i.e. on 23/01/2013/p.m. he was not covered under the ESIC." The said admission on behalf of the Opposite Party No. II clearly bears out that at the relevant day and time the Applicant was not covered under the ESI Act. 15. The proceedings being contested vigorously by the Opposite Parties, it was incumbent upon the Opposite Parties to answer the claim of the Applicant that he had not signed Form 1 of the ESI Act and that his thumb impression was fraudulently affixed by the Representatives of the Employer Party, as informed to him, by his brother, whilst he was undergoing treatment (unconscious) at the Goa Medical College Hospital. 16. It is pertinent to note that the OP No. I i.e. Shri. Saroj Pradhan Proprietor of M/s. Maruti Enterprises through whom the Applicant was employed with the OP No. I Company did not examine himself in the present matter. OP No. I is the person who can throw light about the exact date of employment of the Applicant and also to prove the claim of the Opponent that the Applicant was covered under ESIC Act and contribution was paid and the attendance record for the relevant month of January 2013 (Exhibit AW / 16) is genuine, did not deposed in the present matter. The burden to prove that the Applicant is covered under ESI Act and had received appropriate claim from the ESIC Corporation was on the Opposite Parties but the same was not discharged. There is no documentary evidence on record which to suggest that regular ESIC contribution was made with respect to the Applicant as required under the Act and not for only one day i.e. for 23/01/2013 as replied by the ESIC vide reply dtd. 22/01/2015 (Exhibit AW/13). There is no documentary evidence on record which to suggest that regular ESIC contribution was made with respect to the Applicant as required under the Act and not for only one day i.e. for 23/01/2013 as replied by the ESIC vide reply dtd. 22/01/2015 (Exhibit AW/13). I have carefully perused document at Exhibit AW/16 which is the Mustor Roll for the month of January 2013 it is difficult to believe that the name of the Applicant is shown at Serial No. 22 and he is shown present on duty with effect from 23/01/2013 and the workmen whose names are at Serial No. 23, 24, 25 are shown present on duty with effect from 16th January and 19th January respectively. It is therefore difficult to believe that how come the name of the Applicant is shown at Serial No. 22, if he has joined with effect from 23/01/2013 as claimed by the Opposite Parties. Further the witness of the Applicant Mr. Ramsing Hembram deposed that he joined alongwith the Applicant in the Opponent No. II company through Opponent No. I on 13/01/2013. The said witness further stated in his Affidavit in evidence that on 13/01/2013 despite the same being Sunday the Representative of Opponent No. I Employer had asked them to come to factory premises to observe and learn their job and asked them to work in Factory from 08:00 a.m to 04:00 p.m. That as per the said Mustor Roll Mr. Ramsing Hembram is shown present on duty with effect from 14/01/2013. The said Mr. Ramsing Hembram, the witness of the Applicant therefore supported the case of the Applicant. The OP No. I however failed to discharge his burden and to prove the contention that the Applicant was employed by him with effect from 23/01/2013 as claimed by them and therefore benefit of doubt cannot be given to the Opposite Parties in the present case. 17. The Opposite Employer Party could have proved that the Applicant affixes his thumb impression and does not sign, through having recourse to other employment related documents mandatorily prescribed by Labour Legislations. Specifically, this could have been done by producing the copy of the Appointment document which is to be held by the Employer Party. 17. The Opposite Employer Party could have proved that the Applicant affixes his thumb impression and does not sign, through having recourse to other employment related documents mandatorily prescribed by Labour Legislations. Specifically, this could have been done by producing the copy of the Appointment document which is to be held by the Employer Party. Alternatively, the mandatory Record of Service Form to be held by the Employer under the Industrial Employment (Standing Orders) Act, 1946 could have been produced by the Employer to prove that the Applicant could not sign documents but used to affix his thumb impression. Both the aforementioned documents are mandatorily required to be in the control and possession of an Employer/ Opposite Parties by their very nature. Both the Employer Opposite Parties having failed to produce these documents, an adverse inference against the Employer Opposite Parties can be sustained. 18. Specifically, the Opposite Party No. 1 being under obligation under the Contract Labour (Regulation and Abolition) Act, 1970 could have produced relevant documents to prove the crucial fact relating to the ability of the Applicant to sign or affix thumb impression, on prescribed mandatory employment documents. The Opposite Party No. 1 has failed to do so and accordingly adverse inference can be sustained against the Opposite Party No. I. 19. The allegation that the Form 1 under the ESI Act was completed by the Representative/s of the Opposite Parties post facto the occurrence of the accident without the consent of the Applicant appears to be borne out from the material on record based on the standard of preponderance of probabilities required in these proceedings." 10. The Commissioner then took into consideration the decision of the Hon'ble Supreme Court in the case of S. P. Chengalvaraya Naidu (Dead) vs. Jagannath (Dead) By Lrs., 1994) 1 SCC 1 to reiterate the principle that 'fraud-avoids all judicial acts, ecclesiastical or temporal'. The Commissioner thus proceeded on the footing that there had been an attempt on the part of the employer and the contractor to register the employee under the Insurance Act post the accident to avail all the statutory benefits under the Insurance Act. 11. I am not inclined to interfere with the impugned order for the following reasons : The employee met with an accident on 23/1/2013. His right hand which was crushed had to be amputated from the elbow. 11. I am not inclined to interfere with the impugned order for the following reasons : The employee met with an accident on 23/1/2013. His right hand which was crushed had to be amputated from the elbow. There is no dispute that the entire expenses for the treatment at the hospital was borne by the employer and the contractor. For the injury suffered by the employee, the Commissioner held that he is entitled to compensation in the sum of Rs.7, 62, 455.00 (Rupees Seven Lakhs Sixty Two Thousand Four Hundred and Fifty Five only) plus interest at the rate of 12% from 24/2/2013 to the date of actual payment. The employee is without any compensation since the date of his accident i.e. 23.01.20013 till date. The Commissioner in his order has recorded that the matter was heard extensively from 13/11/2014 till 20/5/2022. Findings are recorded by the Commissioner that application for coverage of the employee under the Insurance Act was submitted to the Employees State Insurance Corporation post the occurrence of the accident suffered by the employee. The Commissioner, in view of the deposition of the witness of the employer, found that at the relevant date and time, the employee was not covered under the Insurance Act. A finding has been recorded by the Commissioner that the circumstances point to unsavory tactics and serious attempts to circumvent the law through resorting to fraud. 12. In the peculiar facts, despite the persuasive submissions of the learned counsel for the appellant, I do not wish to interfere with the order passed by the Commissioner. The employee on the date of accident was 16 years seven months and 17 days old. The employee is without any compensation since 24/1/2013. For loss of a limb the compensation awarded is Rs.7, 62, 455.00 with interest. The employee is in any case entitled to compensation either under the Compensation Act or the Insurance Act. This wait is too long. It is not in dispute that the accident took place in the factory premises of the employer while the employee was working on one of the machine. The employer has been benevolent in covering the expenses towards hospitalisation. The entire amount has been deposited by the employer. This wait is too long. It is not in dispute that the accident took place in the factory premises of the employer while the employee was working on one of the machine. The employer has been benevolent in covering the expenses towards hospitalisation. The entire amount has been deposited by the employer. Looking at the plight of the employee, this court hopes that the employer submits to the cause of justice for his employee who has lost a limb which has a serious impact on the livelihood of someone who was then just 16 years old. 13. I am not inclined to accept the contention of learned counsel for the appellant that the Commissioner was in error applying the notification dtd. 4/3/2013 while calculating the compensation. The accident took place on 23.01.20013. For the purpose of calculating the compensation, the minimum wages prescribed by the notification dtd. 4/3/2013 which came into force sometime later but in close proximity to the date of accident, was taken into consideration by the Commissioner. Such a consideration cannot be said to be unwarranted or such that it involves a substantial question of law. A notification subsequently issued in close proximity to the accident is taken as a guide for determining the minimum wages which approach adopted by the Commissioner is completely in consonance with justice. 14. In my opinion, this is a fit case where the considerations of substantial justice must prevail. Interfering with the order passed by the Commissioner would result in defeating the cause of justice. I am inclined to dismiss the present appeal holding that there is no substantial question of law involved. The appeal must fail and is accordingly dismissed. 15. The respondent-employee is permitted to withdraw the amount deposited along with accrued interest. 16. Appeal is disposed of with no order as to costs.