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FA/2660/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.2660 of 2011
=====================================================
CHANDUBHAI
DAHYABHAI PRAJAPATI & 2 - Appellant(s)
Versus
PERSONAL
MANAGER & 1 - Defendant(s)
=====================================================
Appearance
:
MRS SHILPA R SHAH for Appellant(s)
: 1 - 3.
MR HASMUKH THAKKER for Defendant(s) : 1,
MR PALAK H
THAKKAR for Defendant(s) : 1,
MR CHIRAG B PATEL for Defendant(s) :
2,
MS RUPAL K THAKORE for Defendant(s) :
2,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 12/10/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
(1) The
present appeal arises against the judgment and order dated 21.04.2011
passed by Commissioner for the Workmen Compensation Act, Labour Court
No.1, Bharuch in Workmen Compensation (Fatal) Application
No.8 of 2009 whereby the authority has found that the application is
barred in view of the benefits available under the Employee’s State
Insurance Act, 1948 (the ESI Act) and the application
is dismissed.
(2) The
relevant facts are that deceased-Rameshbhai Chandubhai Prajapati
while working with respondent No.2 as a contractor, who was
performing the work of respondent No.1-Company, had expired on
17.02.2009. Therefore, an application was made under the Workmen’s
Compensation Act, 1923 for receiving compensation before the Labour
Court, which is ex-officio the Commissioner under the Workmen’s
Compensation Act. In response to the process issued, the application
was made by respondent No.2 herein before the authority to decide the
preliminary issue of maintainability of the main application
on the ground that the case of the deceased was already covered
by the ESI Act and the compensation was fixed and, therefore, by
virtue of Section 53 of the ESI Act, the application
was barred. The competent authority decided to hear the matter on
preliminary issue and ultimately passed the impugned order. Under
these circumstances, the present appeal
before this Court.
(3) We
have heard Ms.Shah for the appellants, Mr.Thakker for respondent No.1
and Ms.Rupal Thakore for respondent No.2.
(4) Learned
advocate for the appellants initially contended that the membership
with ESI was got enrolled by the respondents after the death of the
employee concerned and, therefore, she submitted that the appellants
cannot be deprived of the benefit of such grant. She thereafter
submitted that even if it is there on record that the deceased was
member of the ESI while working with the other company unless the
proper formality by way of requisite declaration was made at the time
when he entered the service of the respondents, it cannot be said
that he will continue to be the member of ESI and under these
circumstances, the bar under Section 53 of the ESI Act would not
operate and hence, the authority has committed error and, therefore,
this Court may interfere.
(5) It
is not the matter where claim of the deceased was not at all
processed under the ESI Scheme but it is an admitted position that
the claim of the deceased was processed under the ESI Act, the same
was examined by the ESI authority and it was also sanctioned. Based
on the same, the pension of the dependent members of the family were
also sanctioned. The appellants, who are the original applicants,
have received the amount and are receiving the amount of pension
regularly. However,
the case of the appellants, as contended by the learned advocate for
the appellants during course of hearing, is that the appellants are
illiterate and they have no knowledge
about the legal position and, therefore, they should not have been
deprived of the rights for compensation under the Workmen
Compensation Act.
(6) In
our view the competent authority has examined the aspect of fixation
of the pension under the ESI Scheme. Therefore, as such, once the
benefit is accepted and is being accepted continuously under the ESI
Scheme, it cannot be said that the appellants-original claimants
would be entitled to the additional benefit. Further, on the aspect
of membership, unless a person was member at the relevant point of
time, the claim will not be accepted nor the pension would be fixed.
The additional aspect is that prior to joining service with the
respondents, the deceased was in employment with the other
company, namely, A.B.Steel Fabricators and at that time he was
already member of ESI. Regulation 12 of the Employee’s State
Insurance (General) Regulations, 1950 provides that if one is
already a member of the ESI and identity card is issued, when the
employee joins the other company he has to give particulars and the
employer has to enter the details in the Declaration Form. It is an
admitted position that after leaving the said company, namely,
A.B.Steel Fabricators the deceased was engaged with the respondents.
Under the circumstances, his membership continued of ESI. The attempt
to contend that if the Declaration Form is not completed well in time
at the time of joining the duty, the liability under the Workmen
Compensation Act cannot be avoided, in our view, cannot be
countenanced for the two reasons – one is that such formality
of submitting declaration cannot be held to be mandatory so as to
deprive the employee concerned to get the benefit of the Scheme, if
he is already a member of ESI and has joined the other company. The
another reason is that in the present case
continuation of the membership of the deceased has been accepted by
the ESI authority, the pension is fixed accordingly, the amount is
sanctioned and actually paid, which has been received by the
appellants. Under these circumstances, we find that the contention
cannot be accepted.
(7) If
the deceased was member of ESI and the benefit under the ESI Act are
already sanctioned, the bar of Section 53 of the ESI Act would
operate for claiming compensation under the Workmen Compensation Act.
Section 53 of the ESI Act for ready reference reads as under:
“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.”
(8) The
aforesaid section is clear on its own language and, at this stage, we
may refer to the decision of the Apex Court in case of A.Trehan
Vs. Associated Electrical Agencies & Anr., 1996 (74) F.L.R.
1886, wherein the Apex Court has also observed that bar would operate
under Section 53 of the Act for claiming compensation under the
Workmen Compensation Act and, therefore, the application
under the Workmen Compensation Act could be said as not maintainable.
The authority, by the impugned order has taken the same view. Hence,
we find that the appeal is meritless and, therefore, dismissed. There
shall be no order as to costs.
Sd/-
[JAYANT
PATEL,J]
Sd/-
[R.M.CHHAYA,
J ]
***
Bhavesh*
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