JUDGMENT
M.Y. Eqbal, J.
1. This appeal filed by the appellant M/s. Bharat Coking Coal Limited under Section 30 of the Workmen’s Compensation Act, 1923 is directed against the order dated 30.9.2002 passed by the Commissioner. Workmen’s Compensation, Dhanbad in W.C. Case No. 21/2002 (C) whereby he has allowed the claim of claimant-respondent No. 1 and awarded compensation of Rs. 81,525/- for the death of the workman.
2. The facts of the case lie in a narrow compass:
Husband of claimant/respondent No. 1 namely, Sukhu Manjhi was a workman working as Miner/Loader at Hurriladih Colliery. In course of his employment he met with an accident on 9.9.1989 and sustained injuries. He was referred to the Central Hospital, Dhanbad for his treatment and later on referred to Christian Medical College, Vellore for further treatment. After receiving treatment, the workman returned to Dhanbad and as he was not performing his normal duties, he was referred to Medical Board and finally he was declared unfit on 10.10.1990. His services were accordingly terminated in terms of para 9.4.3 of National Coal Wage Agreement-IV. On termination of his employment vide letter dated 16.10.1990 the widow respondent No. 1 was provided employment vide letter dated 16.10.1990. Accordingly, respondent No. 1 joined the Company. However, after about a year of termination of services, the Workman died on 3.9.1991. After about seven years the widow-claimant filed an application under the Workmen’s Compensation Act being W.C. Case No. 18/97 before the Commissioner, Workmen’s Compensation, Dhanbad. The Commissioner passed ex parte order on 29.7.1998 directing the appellant to deposit the amount claimed In the application to the extent of Rs. 1,70,000/-.
3. Aggrieved by the said ex parte order the appellant preferred appeal before the Patna High Court, Ranchi Bench being M.A. No. 140/98. The said appeal was finally heard and by judgment dated 26.2.2002 the appeal was allowed and the order passed by the Commissioner was set aside and the matter was remitted back to the authority to pass reasoned order after giving opportunity of hearing to the parties. The Commissioner after remand of the said appeal, heard both the parties and passed the impugned order awarding compensation. Hence, this appeal.
4. Mr. Anoop Kumar Mehta, learned Counsel appearing for the appellant as sailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that since services of the workman-Sukhu Manjhi was terminated on being declared unfit in terms of para 9.4.3 of the National Coal Wage Agreement-IV, no relationship of employer and employee existed subsequent thereto. Learned Counsel submitted that alter the accident took place, the workman was either entitled to compensation under the Act for the said accident on account of being declared medically unfit by the Medical Board or employment to his dependent. Learned Counsel submitted that workman was provided with all medical facilities and all medical expenses were borne by the appellant and during the said period the workman was paid compensation as per the last wage drawn by him till he was declared medically unfit. Besides that since the claimant was provided employment under the provisions of National Coal Wage Agreement IV, she is not entitled to get any compensation under the Act. Learned Counsel further submitted that the claim application was filed about seven years after the death of the workman and after the widow got employment.
5. Mr. V. Shivnath, learned senior counsel appearing for the claimant/respondent on the other hand submitted that the claimant-respondent has statutory right to claim compensation under the Workmen’s Compensation Act for the death of her husband and it has no concern with the employment provided to her. Learned Counsel submitted that the cause of action for filing claim under the Act arose before termination of his employment when he sustained injuries in course of employment and therefore, the Commissioner has rightly awarded compensation to the claimant/respondent.
6. The moot question that falls for consideration is as to whether in view of the employment provided to the widow-claimant, she will also be entitled to compensation under the Workmen’s Compensation Act.
7. Workmen’s Compensation Act (in short the Act) has been enacted for providing social security to the workmen. It makes the employer liable to pay compensation to the workman incapacitated by accidents arising out of and in course of employment. This liability to pay compensation is independent of any neglect or wrongful act on the part of his Master or the Mater’s servants. The Act has prescribed various measures to ensure proper and timely payment of compensation and also to ensure compliance with the provision of the Act. Section 3 of the Act provides employer’s liability to pay compensation in case of personal injury to the workmen caused by accident arising out of and in course of employment. Section 4 of the Act prescribes procedure of assessment of compensation in case of death of personal injury caused to the workmen in course of employment. Section 4A of the Act provides for payment of interest and penalty in case of delay in payment of compensation. Section 5 of the Act prescribes method of calculation of wage and computation of half monthly payment. Section 8 prescribes method of distribution of compensation. Section 9 of the Act protects the amount of compensation from being assigned, attached or charged. Section 12 prescribes provision for the principal’s liability to pay compensation to the workmen implied by Contractor also, if their employment is for the purpose of principal’s trade or business. Section 13 provides sufficient protection to the workmen in case of insolvency or winding up of the employer. Section 17 is important provision which provides that any contract or agreement whereby a workman relinquishes any right of compensation under the Act, has been declared to be ineffective and invalid. For better appreciation, Section 17 is quoted herein below:
17. Contracting out.–Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in 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.
8. From bare reading of the aforesaid provision it is abundantly clear that any contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in 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.
9. Now coming back to the National Coal Wage Agreement (NCWA) upon which Mr. Mehta, learned Counsel for the appellant has put heavy reliance and submitted that when employment is provided to the dependent then no further compensation is payable under the Workmen’s Compensation Act. At the very out set 1 am of the view that the submission of the learned Counsel has no leg to stand in view of the provisions of Section 17 of the Act.
10. Now I would like to discuss the relevant provisions of Coal Wage Agreement.
11. Chapter 1 of the National Coal Wage Agreement V (in short NCWA) provides that the agreement covers the wage structure, clearness allowances, fitment in the revised pay scale, pension, frinze benefits, wage conditions and allied matters including welfare measures, Chapter IX deals with the provision with regard to social security. I shall now refer Clauses 9.2.0 to Clauses 9.5.0, which deal with Workmen’s Compensation benefits. The said clauses read as under:
9.2.0. Workmen’s Compensation Benefits
It is agreed that-
9.2.1. The employees covered by this agreement shall be entitled to the benefits admissible under the Workmen’s Compensation Act, 1923.
9.2.2. The benefits under the Workmen’s Compensation Act will not be affected adversely on account of the revision of wage by this agreement.
9.2.3. An employee who is disabled due to accident arising out of and during the course of employment will get basic wage and dearness allowance from the date of accident till he/she is declared fit by the company’s Medical Officer. The disabled employee will have to remain under the treatment of the Coal Company’s Medical Officer or in a hospital approved by the Coal Company to be entitled to the benefit.
9.2.4. The compensation shall be paid on the basis of the last wage drawn immediately before the employee met with the accident.
9.2.5. It is further agreed that the payment of wage made to employees during the period of temporary disablement due to accident arising out of and in course of employment will not be deducted from the lump sum amount payable towards compensation from any permanent, partial or total disablement resulting therefrom.
9.2.6. In respect of those employees who are not currently covered by the definition of ‘workmen’ under the Workmen’s Compensation Act, that is to say, such of the employees whose wage are more than Rs. 2000/- per month if the Workmen’s Compensation Commissioner refused to accept the compensation money, the same will be disbursed to the legal heirs of the deceased on satisfactory production of proof and on execution of agreement/indemnity bonds etc, so that there may not be any future claim in this regard.
9.2.7. In addition to the compensation payable under the Workmen’s Compensation Act an ex-gratia amount of Rs. 15,000/- in case of death of permanent total disablement resulting on account of accident arising out of and in course of employment will be paid. It will be effective from 1.7.1995. However, pending cases of those employees who died before 1.7.1995 and their dependants who have not been paid the benefits till date will also be paid at the above rate.
9.3.0. Provision of employment to dependants.
9.3.1. Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows:
9.3.2. Employment to one dependant of the worker dies while in service.
In so far as female dependants are concerned, their employment/payment of monetary compensation would be governed by para 9.5.0.
9.3.3. The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, younger brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependants of the deceased.
9.3.4. The dependents to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment.
9.4.0. Employment to one dependant of a worker who is permanently disabled in his place.
(i) The disablement of the worker concerned should arise from injury or disease, be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned.
(ii) In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years.
A joint committee will be constituted by the JBCCI for considering as to what constitutes general physical debility, referred, to hereinabove. This Committee will submit its report by 31-3-1996. In case of difference of opinion the matter will be referred to JBCCI which may appoint an umpire to decide the issue. The decision of the umpire shall be binding on the parties.
(iii) The dependant for this purpose means wife/husband, as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, younger brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependant on the earning of the employee may be considered. In so far as female dependants are concerned, their employment would be governed by the provisions of Clause 9.5.0.
(iv) The dependant to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as female spouse is concerned, there would be no age limit regarding provision of employment.
9.5.0. Employment/Monetary compensation to female dependant:
Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0. above would be regulated as under:
(i) In case of death due to mine accident, female dependant would have the option to either accept the monetary compensation of Rs. 3000/- per month of employment irrespective of her age.
(ii) In case of death/total permanent disablement due to causes other than mine accident and medical unfitness under Clause 9.4.0. if the female dependant is below the age of 45 years, she will have the option either to accept the monetary compensation of Rs. 2000/-per month or employment. In case the female dependant is above 45 years of age, she will be entitled only to monetary compensation and not to employment.
(iii) In case of death, either in mine accident or for other reasons or medical unfitness under Clause 9.4.0., if no employment has been offered and the male dependant of the concerned worker is 15 years and above in age, he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rate at paras (i) & (ii) above.
(iv) Monetary compensation, wherever applicable, would be paid till the female dependant attains the age of 60 years.
(v) The rate of monetary compensation which stands at Rs. 2000/- and Rs. 3000/- per month as mentioned above, would be reviewed w.e.f. 1.7.1996.
(iv) The rate of monetary compensation will be reviewed as and when new wage agreements are finalized.
Note: In the case of TISCO, the matter would be settled at bipartite level.
This would supersede all past agreement, circulars and instructions issued on the subject in so far as the issues are covered by the provisions hereinabove.
12. From bare perusal of the aforesaid clauses it is abundantly clear that workman in addition to the compensation payable under Workmen’s Compensation Act, he is entitled to compensation for the death or disablement due to accident arising out of and in course of employment. Clause 9.2.7 makes provision of ex-gratia payment in case of death or permanent total disablement resulting on account of accident arising out of and in course of employment. Clause 9.2.7 very specifically provides that in addition to the compensation payable in the Workmen’s Compensation Act further compensation shall be payable as provided in the agreement. Clause 9.3.1 provides that employment would be provided to one dependant of the worker who dies while in service. Clause 9.5.0 lays down the provisions for employment or monetary compensation. It is, therefore, clear that benefits which have been given in the National Coal Wage Agreement will not in any way take away the right to claim compensation under the Workmen’s Compensation Act.
13. Having regard to the provisions of Workmen’s Compensation Act vis-a-vis the relevant clauses of N.C.W.A. quoted hereinabove, we have no doubt in holding that the claim application filed by the respondent under the Workmen’s Compensation Act for the grant of compensation for the death of her husband which admittedly was caused due to accident in course of his employment, is maintainable. We further hold that the amount of compensation awarded by the Commissioner, Workmen’s Compensation is just and reasonable and the same needs no interference by this Court. For the reasons aforesaid, there is no merit in this appeal which is, accordingly, dismissed.
D.G.R. Patnaik, J.
14. I agree.