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Employees' State Insurance Corporation, Chandigarh Vs. Dalmia Dadri Cement Ltd. and Anr. (21.03.1972 - PHHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 156 of 1968
Judge
Reported inAIR1972P& H414
ActsEmployees' State Insurance Act - Sections 66, 66(1), 67, 75(2) and 82(2); Employees' State Insurance (Amendment) Act, 1966 - Sections 29, 32 and 43; General Clauses Act - Sections 6; Workmen's Compensation Act, 1923 - Sections 12
AppellantEmployees' State Insurance Corporation, Chandigarh
RespondentDalmia Dadri Cement Ltd. and Anr.
Cases ReferredJabalpur v. S. P. Nanwati
Excerpt:
.....of the amending act as well as that of section 6 of the general clauses act. as soon as it is held, as i do, that section 43 of the amending act did not save the right of the appellant to claim the actuarial present value of the periodical payments which it is liable to make under the act to the dependents of rulia ram, its application to claim the said amount is clearly not maintainable......43 appears to abrogate the said right, and to save the right of the dependents of rulia ram to claim periodical payments from the appellant for the employment injury sustained by rulia ram. the claim for reimbursement, available to the appellant under section 66 (since repealed) of the act was previously decided by the employees' insurance court under clause (c) of sub-section (2) of section 75. as indicated above, the said provision contained in clause (c) of sub-section (2) of section 75 of the act stands repealed by the amending act. therefore, this, too, leads to the conclusion that the right of the appellant to claim reimbursement for the periodical payments to be made by it to the dependents of rulia ram from respondent no. 1 cannot, now, be investigated by the employees'.....
Judgment:

1. This appeal has been directed under Section 82(2) of the Employees' State Insurance Act (hereinafter called the Act) against the order dated May 7, 1968, of the Employees' Insurance Court, Bhiwani, whereby the said Court dismissed the application, moved by the appellant under Section 66 read with Section 75(2)(c) of the Act for recovery of Rs. 13,781.25 p. from Messrs. Dalmia Dadri Cement Ltd. (hereinafter called the respondent No. 1) by way of reimbursement, on the short ground that it (the application) was not maintainable since Section 66 of the Act had been repealed by the Employees' State Insurance (Amendment) Act No. 44 of 1966 (hereinafter called the Amending Act), before the making of the application.

2. In short, the case of the appellant is that it is Employees' State Insurance Corporation, and respondent No. 1 in factory within the meaning of the Act. Rulia Ram was in the employment of respondent No. 1 as Hopper-man and was duly registered under the provisions of the Act with the appellant under Insurance No. 12/834241. On October 20, 1966, when at 10.30 P. M. he (Rulia Ram) was performing his duty of loosening the jammed clay in the Hopper by standing on a ladder, he slipped into clay in the Hopper and was dragged in the telescope pipe of the feeder table, and died instantaneously. Since Rulia Ram was insured with it, his dependents were entitled to benefit as provided in the Act. Therefore, the appellant claimed Rs.13,781.25 p. as actuarial present value of the periodical payments which it had to make to the dependents of Rulia Ram as benefits with the allegations that the employment injury, which resulted into his (Rulia Ram's) death was due to the negligence of respondent No. 1 to observe the safety rules in not providing the necessary guard on the Clay Hopper. The claim of the applicant was resisted by respondent No. 1. The facts, that respondent No. 1 was factory, that Rulia Ram was employed by it as a Hopper-man, that he was insured with the appellant, that he died on October 20, 1966, at 10.30. P. M. while working as Hopper-man, were not denied, while the other material allegations of the appellant were controverted. It was inter alia pleaded that the application was bad on account of misjoinder of parties and was not cognizable by the Employees' State Insurance Court and was not maintainable, since Section 66 and Section 75(2)(c) of the Act had been repealed by the Amending Act before the appellant moved the application. The objection that the application was not maintainable, prevailed with the said Court and it dismissed it on the ground as stated above. Dissatisfied with the said result, the appellant has appealed. I have heard the arguments and examined the record.

3. The facts, that the appellant is the Employees' State Insurance Corporation, that respondent No. 1 is factory within the meaning of the term of the Act, that Rulia Ram was employed as Hopper-man by respondent No. 1 and he died while working as such, that he was duly insured under the Act with the appellant, that he left behind the defendants, to whom the appellant is liable to any benefit under the Act, are admitted. It is also not disputed that Section 66 of the Act which gave the right to the appellant to claim the actuarial present value of the periodical payments which it (the appellant) was liable to pay to the dependents of Rulia Ram from respondent No. 1 on proving that he (Rulia Ram) had sustained employment injury, resulting into his death, by reason of the negligence of respondent No. 1 to observe any of the prescribed safety rules, has been repealed by the Amending Act. The learned counsel for the appellant argued that despite the repeal of Section 66 of the Act, the appellant's right to claim Rs.13,781.25 by way of reimbursement as actuarial present value of the periodical payments to be made by it to the dependents of Rulia Ram, from respondent No. 1 had not been abrogated, and was saved. He relied on Section 6 of the General Clauses Act. On the other hand, the learned counsel appearing for the respondents, maintained that in view of the repeal of Section 66 of the Act, the appellant had no right to claim the aforesaid amount from respondent No. 1. In order to appreciate the arguments of the two counsel, it may be helpful to give hereunder the dates, relevant for the decision of the case and to reproduce the relevant provisions of the Act and of the Amending Act as well as that of Section 6 of the General Clauses Act.

'(i) The accident, wherein Rulia Ram sustained the employment injury resulting into his death, took place on........... 20-10-1966.

(ii) The provisions of the Amending Act including Section 29 which repealed Section 66 of the Act, and Section 32 which repealed clause (c) of sub-section (2) of Section 75 of the Act came into force on..................... 17-6-1967.

(iii) The application, claiming the amount of Rs.13,781.25 P. was made by the appellant on.................. 10-10-1967.

(iv) Section 43, which is saving provision of the Amending Act, came into force on..........28-11-968.

4-5. Now it is evident that Section 66 of the Act was applicable when the accident, referred to under (i) above had taken place. It was repealed on 17-6-1967. Therefore the right to claim the actuarial present value of the periodical payments to be made by it to the dependents of Rulia Ram was available to it during the period from 20-10-1966 to 17-6-1967 (when Section 66 of the Act was repealed).

6. The relevant provision, contained in Section 6 of the General Clauses Act, reads as under:--

'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

x x x x x

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;

x x x x x'.

The aforesaid provision contained in clause (c) of Section 6, therefore, saves the right of the appellant to claim actuarial present value of the periodical payments made or to be made by it to the dependents of Rulia Ram, which was available to it under Section 66 (now repealed) for the period from 17-6-1967 till 28-1-1968, when Section 43 of the Amending Act came into force. The said Section 43 reads as under:--

'No provision of this Act shall apply to and in relation to any payment which has been, or is being, or required to be, made under the principal Act in respect of any employment injury sustained by an employee in any State or part thereof at any time before the date of coming into operation of that provision and any such payment and any application, appeal or other proceeding for or relating to such payment pending before any authority immediately before such date shall continue to be governed by the provisions of the principal Act as they stood immediately before that date.'

7. The expression 'Unless a different intention appears', occurring in Section 6 of the General Clauses Act, does to show that the ordinary rule is that the said Section 6 will apply if there is no saving clause in the repealing enactment. If, however, the repealing enactment makes a special provision regarding pending or past transactions, it is the latter provision that will determine whether the liability arising under the repealed enactment survives or is extinguished. Since the Amending Act contains special saving provision in its Section 43, it manifests an intention different from the one enacted by Section 6 of the General Clauses Act. I have, therefore, no doubt that it is the provision, contained in Section 43 of the Amending Act, and not the provision contained in Section 6 of the General Clauses Act, that will keep alive or destroy the right of reimbursement, available to the appellant under Section 66 (now repealed). Sub-section (1) of Section 66, which has been repealed by the Amending Act, reads as follows:--

'66. Corporation's right to recover damages from employer in certain cases--(1) Where any employment injury is sustained by an insured person as an employee under this Act by reason of the negligence of the employer to observe any of the safety rules laid down by or under any enactment applicable to a factory or establishment or by reason of any wrongful act of the employer of his agent, the Corporation shall, notwithstanding the fact that the employer has paid the weekly contributions due under this Act in respect of such insured person, be entitled to be reimbursed by the employer or the principal who is liable to pay compensation under Section 12 of the Workmen's Compensation Act, 1923 (VIII of 1923), the actuarial present value of the periodical payments which the Corporation is liable to make under this Act.

x x x x x'.

Clause (c) of sub-section (2) of Section 75 of the Act, which now stands repealed, by clause (ii) of Section 32 of the Amending Act, reads as under:--

'75 (1) x x x x

(2) The following claims shall be decided by the Employees' Insurance Court, namely:--

x x x x x

(c) claims under Section 66 or 67 made by the Corporation against the employer or other person liable thereunder;

x x x x x'

8. Section 43 of the Amending Act has saved the provisions contained in the Act prior to the amendment, relating to the rights or obligations with regard to any payment which has been, or is being, or required to be, made under the Act in respect of any employment injury, sustained by an employee in any State or part thereof at any time before the date of coming into force of said Section 43. The said rights or obligations with regard to payments to be made respecting any employment injury sustained by an employee, relate to benefits as given in Chapter V of the Act. Section 66 now repealed of the Act gave right to the appellant to claim actuarial present value of the periodical payments to be made by it to an insured employee, from the employer by way of reimbursement if the employment injury has been sustained by the employee by reason of negligence of the employer.

9. In Bhinka v. Charan Singh, AIR 1959 SC 960, it was observed in paragraph 15 on page 966 as under:--

'The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt.'

The heading of Section 66, (now repealed) reproduced above, points out that the right of the Corporation to claim actuarial present value of the periodical payments to be made by it to the insured person for an employment injury, from the employer under the conditions mentioned therein, was the right to recover damages from him (the employer). I, therefore, find that the right, given by Section 66 (since repealed) to the appellant to claim actuarial present value of the periodical payments to be made by it to the dependents of Rulia Ram, was due to the negligence of respondent No. 1, was a right to recover damages from it (respondent No. 1). The said right cannot mean and cannot be construed to mean its obligation to pay the benefits, as contemplated by Chapter V of the Act to the dependents of Rulia Ram.

It, thus follows from the above that the right available under Section 66 (since repealed) to the appellant to recover damages from respondent No. 1 for the periodical payments to be made by it to the dependents of Rulia Ram, on the allegation that the employment injury, sustained by Rulia Ram was due to the negligence of the said respondent No. 1, has not been covered by Section 43 of the Amending Act. Rather, the intention of the said Section 43 appears to abrogate the said right, and to save the right of the dependents of Rulia Ram to claim periodical payments from the appellant for the employment injury sustained by Rulia Ram. The claim for reimbursement, available to the appellant under Section 66 (since repealed) of the Act was previously decided by the Employees' Insurance Court under clause (c) of sub-section (2) of Section 75. As indicated above, the said provision contained in clause (c) of sub-section (2) of Section 75 of the Act stands repealed by the Amending Act. Therefore, this, too, leads to the conclusion that the right of the appellant to claim reimbursement for the periodical payments to be made by it to the dependents of Rulia Ram from respondent No. 1 cannot, now, be investigated by the Employees' Insurance Court. In other words, the right to claim such reimbursement under Section 66 (since repealed) of the Act is no longer available to the appellant.

10. The learned counsel for the appellant referred me to an unattested a copy of the judgment of the High Court of Madhya Pradesh passed on 25-3-1969, in Employees' State Insurance Corporation, Jabalpur v. S. P. Nanwati, Misc. First Appeal No. 87 of 1968 (Madh. Pra) and argued that Section 43 of the Amending Act did not abrogate the right of the appellant to claim actuarial present value of the periodical payments to be made by it to the dependents of Rulia Ram, by way of reimbursement from respondent No. 1. I am unable to agree with him. The question with regard to the extent of rights saved by Section 43 of the Amending Act was not specifically considered in the aforesaid judgment of the Madhya Pradesh High Court. To put it differently, it has not been considered specifically in the aforesaid judgment as to whether Section 43 of the Amending Act has only saved the right or obligation with regard to any payment which has been, or is being, or required to be, made under the Act in respect of any employment injury sustained by an employee, or that it has also saved the right of reimbursement available to the Corporation under Section 66 (since repealed) of the Act. As found above, I am of the opinion that the right to claim actuarial present value of the periodical payments to be made by the appellant to the dependents of Rulia Ram, from respondent No. 1, by way of reimbursement, on proof that the employment injury had been sustained by Rulia Ram by reason of negligence of respondent No. 1, as available to it under Section 66 (since repealed) of the Act, has not been saved by Section 43 of the Amending Act. The said Section 43 has only saved rights and obligations with regard to any payment which has been, or is being, or required to be, made under the Act as benefits, as given in Chapter V of the Act, respecting the employment injury sustained by Rulia Ram. Therefore, the aforesaid authority of the Madhya Pradesh High Court can render no help to the appellant.

As soon as it is held, as I do, that Section 43 of the Amending Act did not save the right of the appellant to claim the actuarial present value of the periodical payments which it is liable to make under the Act to the dependents of Rulia Ram, its application to claim the said amount is clearly not maintainable. As pointed out above, the right of the appellant to claim actuarial present value of the periodical payments to be made by it to the dependents of Rulia Ram from respondent No. 1 on the allegation that the employment injury, sustained by him (Rulia Ram), was due to the negligence of the said respondent No. 1 to observe the prescribed safety rules has been abrogated by Section 43 of the Amending Act. In view of that position of the law the said right of appellant to claim actuarial present value of the periodical payments to be made by it to the dependents of Rulia Ram, from respondent No. 1, available to it under Section 66 of the Act till 17-6-1967, when the Amending Act came into force, or even thereafter, by virtue of Section 6 of General Clauses Act, did not subsist after 28-1-1968 when Section 43 of the Amending Act came into force. When the said right does not subsist, it cannot be enforced irrespective of the fact that appellant had moved the necessary application under Section 66 of the Act prior to coming into force of Section 43 of the Act. Even the jurisdiction of the Employees' Insurance Court to determine the said claim of the appellant or to decide the application, moved by it on 10-10-1967, is no longer available to it after 28-1-1968, i.e., after coming into force of Section 43 of the Amending Act.

11. To sum up, the rights, whatever were available to the appellant to claim actuarial present value of the periodical payments to be made to the dependents of Rulia Ram, from respondent No. 1, had been abrogated on account of repeal of Section 66 of the Act by the Amending Act when its Section 43 came into force and even its right to maintain the application for claiming the said amount, though moved earlier, does not subsist after 28-1-1968 (i.e., when Section 43 of the Amending Act came into operation).

12. It follows from the discussion above that the application moved by the appellant to claim any amount as reimbursement, from respondent No. 1, under Section 66 of the Act is not, now, maintainable and it was rightly dismissed on that ground.

13. Consequently, I, maintaining the impugned order dismiss this appeal. Having regard to the circumstance that the point of law involved was not free from difficulty, I leave the parties to bear their costs.

14. Appeal dismissed.


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