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Judgment
Judgment Pronounced by V.S. Sirpurkar, J.—Appellant herein is a workman working in the first respondent concern which is covered
under the provisions of Employees State Insurance Act. The appellant met with an accident and lost his left eye. The accident took place on
10.6.1980. Under the provisions of the Act the Corporation assessed the liability on the basis of an application made before it at Rs.2.625 per day
rounded of at Rs.2.63 per of day. This was on the basis of the fact that the appellant was blinded in the left eye. Under the Rules and Regulations
and provisions of the Employees State Insurance Act, 1948, the appellant is entitled to get the benefit called disablement benefit, which is payable
to the appellant for the rest of his life, but periodically, that is probably every month. The appellant was not satisfied by this and therefore applied to
the authorities by an application dated 7.7.1981 claiming a commutation of that per day payment of Rs.2.63 per day. In short, he wanted
commuted amount in place of the periodical payment per month. Under the Regulations and more particularly under Regulation 76 (b) such
commutation was not possible under the provision as it then stood commutation could be made only if the insured person was assessed at Rs.l.50
only and not more than that. The appellant therefore challenged the constitutionality of Regulation 76 (b) contending that the limit of Rs.1.50 for
commuting the permanent disablement benefit was arbitrary and without any rational. The gravamen of the contention of the appellant was that the
authorities discriminated between the persons drawing on the basis of Rs.1.50 per day and others who drew at higher rates and further the
commutation should have been based not on the low payment but on the basis of the seriousness of the injury suffered by the concerned injured
person. Be that as it may, the writ petition, which was registered as W.P.No.11637 of 1995 came to be disposed of by this court, as Regulation
76 (b) was extensively amended in 1991. The court granted liberty to the appellant to challenge the amended regulation also and it is on that basis
that the constitutional validity of amended Regulation 76 (b) was again challenged before the learned single Judge. It was tried to be suggested
before the learned single Judge that first there was no rationale in putting the limit of Rs.1.50 per day. Secondly, it was pointed out that by
amendment, a proviso was added which made it possible to claim the commutation of the permanent disablement benefit even for those persons
whose benefit rate exceeded Rs.1.50 per day, but only subject to the condition that the total commutation did not exceed Rs.10,000 at the time of
commencement of the award of the permanent disability. It was contended before the learned single Judge that this was only arbitrary particularly
because there was no reason as to why the limit was to be at Rs.1.50 and not more. Learned single Judge did not accept the challenge to the
constitutionality and went on to hold that the basic purpose of the Act was to provide a social security cover all through the life and as such it
cannot be a rightful claim by any injured to get the said benefit commuted. Learned single Judge found that it was only in the case of the insured
persons, who were entitled to get very small and insignificant amounts that the authorities had carved out a policy to allow commutation of
permanent disablement benefit in order to save them from the botheration of collecting those small and insignificant amounts every month and
therefore, such exceptional concession could not be claimed by everybody as the basic aim of the Act of providing a long term social security
cover would itself come to an end, if the commutations were allowed to all the insured persons. Learned single Judge also did not find anything
wrong in fixing the limit of Rs.1.50 per day as that limit was justifiable considering the extreme insignificant nature of that amount. In that view, the
learned Judge dismissed the petition. It is against the judgment of the learned single Judge that the present appeal has been filed.
Learned counsel has firstly invited our attention to the various provisions of the Act and the Regulations and has fervently argued that there can
be no real rational in limiting the commutation benefit only to such insured persons who were drawing upto Rs.1.50 per day. Learned counsel
argues that there would be really no difference in the insured like the present petitioner whose permanent disablement benefit was fixed at Rs.2.63
ps. Learned counsel also invites our attention to the harsh realities and contends that situation for a person drawing on the basis of the benefit at
Rs.1.50 would not be any different from the one who was drawing at the rate of Rs.2.63. Learned counsel also further argues that the basic
philosophy of the Act is to give more compensation in case of more serious injuries. He points out that the permanent disablement benefit awarded
to a person who is seriously injured has to be more than Rs.1.50 per day and person who has suffered a more serious injury and therefore has
been found to be entitled to a permanent benefit at the higher rate would be deprived of the benefit of commutation. In fact, it is the person with
more serious injuries who would need the commutation more as compared to a person who has suffered lesser serious injury. According to the
learned counsel the provision is anomalous and hence cannot stand the acid test of reasonableness. According to the counsel the learned single
Judge has not taken into account the fact that the persons who suffered more serious injuries would be entitled to draw at the higher rate and
therefore, would be more needy for the communted benefit.
Learned counsel on behalf of the respondent, however, pointed out that in reality the challenge is not workable. His contention is that under the
Regulations the limit of Rs.1.50 has remained constant for the last 20 years. So also the limit of Rs.10,000 as provided by the proviso has
remained constant and has not been increased. His contention is that there can be no claim for the compensation under the Act particularly because
this Act does not provide for the compensation but for the ""benefits"". According to the learned counsel the Act is meant to provide for the benefits
of employees in case of sickness, maternity and employment injury and as such the different character of this Act has to be realised distinctly from
the other Acts providing for the compensation for the injuries of deaths suffered by the workmen like Workmen''s Compensation Act. Learned
counsel also has drawn our attention more particularly to the provisions of Section 62 which creates a bar against the commutation of the
disablement benefit. On this basis, learned counsel points out that the limit of Rs.1.50 cannot be said to be unreasonable in any manner and it will
be entirely erroneous to link the said benefit with the seriousness of the injury as is being tried by the petitioner. On these conflicting claims it has to
be seen as to whether the learned single Judge was right in upholding the constitutionality of the challenged provision.
We have already made a reference to the preamble of the Act while referring to the contentions raised by the respondents'' counsel. Section 51
of the Act provides for and describes disablement benefit. The Section reads as under:
Disablement benefit - Subject to the provisions of this Act (a) a person who sustains temporary disablement for not less than three days
(excluding the day of accident) shall be entitled to periodical payment (at such rates and for such periods and subject to such conditions as may be
prescribed by the Central Government):
(b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment, (at such rates and for such
periods and subject to such conditions as may be prescribed by the Central Government)."" (Italics Supplied)
The benefits under the Act which the insured person can claim are described in Section 46 and the relevant benefit for the purposes of the
present appeal would be covered in sub-section (c) which is as under:
(c) Periodical payments to art insured person suffering from disablement as a result of an employment injury sustained as an employee under this
Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement
benefit). (Italics supplied)
Both the Sections speak about the periodical payment and not a ""one time compensation"". The language of the provisions is therefore clear as
would be seen from emphasised words, to suggest that the disablement benefit payable under the Act, more particularly under the provisions
shows above, has to be periodical in nature and provisions shown above, has to be periodical in nature and is not in the nature of a lumpsum
payment or compensation. One more thing which is liable to be seen here is that u/s 51 by the Amendment Act 29 of 1989 last clause is added
which is to the effect ""at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government.
Learned counsel for the respondent points out that the initial rate awarded to the appellant insured person has undergone a vast change for better,
inasmuch as now he is paid at a much higher rate than Rs.2.63. The statement is not controverted by the learned counsel for the appellant.
However, we will advert to this aspect a little later.
Once it is realised that the nature of payment contemplated under the Act is periodical, the task becomes easier for us particularly in view of the
specific bar created u/s 62. This section suggests that there shall be no commutation for a lumpsum of any disablement benefit, except as provided
in the Regulations. The spirit of the Act, the provisions shown above and the language of Section 62 makes it imperative, therefore, that the
disablement benefit shall be periodical. Only exception is to be provided in the regulations. The Regulation making power is to be seen via Section
97 and the concerned Regulation is under XI. It is under this power that Regulation 76 (b) has been framed. That Regulation will clearly go to
show that the provision for commutation is restricted to the disablement benefit at a rate not exceeding Rs.1.50 per day. Considering the general
scheme of the Act, as also the provisions made above, it is clear that what was intended by way of this amendment was the avoidance of the
difficulties faced by the workers who were to draw the periodical ""insignificant"" amounts by way of disablement benefit. It is in order to avoid
inconvenience to such poor workers as also in the interest of administrative exigency that such regulations seems to have been brought on the anvil.
This is also the stand taken by the respondents in the writ petition as also in the appeal and we do not find anything wrong if such a stand is
accepted. After all a benefit at the rate of Rs.1.50 per day would amount to Rs.45 approximately per month and if the worker is to come every
month to the Office to collect Rs.45 per month it would be naturally more in the nature of a punishment than a benefit. It is in this spirit of this very
idea that the proviso seems to have been added that even those persons who draw more than that rate would be allowed to commute provided the
lumpsum permanent disablement benefit does hot exceed Rs.10,000. In fact the proviso takes care of the argument of the learned counsel for the
appellant that really speaking there would be no difference in the worker who draws at the rate of Rs.1.50 and the worker who draws slightly
more than that like the present appellant. It is the aspect of meager payments which seems to have been taken into consideration by the Legislation
to provide that even in cases where the disablement benefit exceeds Rs.1.50 it should be commuted provided the total value does not exceed a
particular sum of Rs.10,000. Therefore the argument that fixing the limit of Rs.1.50 was arbitrary has necessarily to be rejected because even in the
cases of those who draw more than that rate have been taken into consideration in keeping with the spirit of the Act. The legislature has intended
that where the disablement benefit does not exceed Rs.10,000 by the sheer size of that amount, it could not be said to be a compensation and
would still retain its character as a disablement, benefit. It is for these reasons that it cannot be said that the fixing of the rate at Rs.1.50 is in any
way arbitrary.
Learned counsel then contended that there is no material brought forth, nor data submitted before the Court as to why this particular figure has
been fixed. We only say that it would be a matter of policy on the part of the Corporation to fix a particular rate. However, one cannot ignore that
the rate of Rs.1.50 per day has remained unchanged all through, though a period of 20 years has elapsed since its introduction while the rates
awarded to the insured appellant has undergone a vast change. Now the very fact that this figure of Rs.1.50 has remained steady for the last 20
years as also the figure of Rs.10, 000 provided in the proviso would go to show that the real purpose of this provision is to avoid inconvenience to
such insurers who have to collect small or insignificant amounts. This itself would go to show that the provision is perfectly legal and reasonable.
Learned counsel then argued that the spirit of the Act is that where the injury is of more serious nature, the disablement benefit would be more
and at higher rate and this proviso has to be viewed as unreasonable provision because while the benefit of commutation has been given to those
who are with insignificant injuries it has been denied to those who have suffered much more serious injury and therefore are found to be entitled to
draw at a higher rate. Learned counsel spices his argument by introducing that in fact those who have suffered, more serious injuries would be
more needy in terms of commutation and in fact the commutation, therefore, should not have been restricted to the rate as introduced by
Regulation 76 (b). The argument is totally without any basis. Regulation 76 (b) has been introduced by way of an exception. An exception cannot
be allowed to act as a general rule and has to remain an exception. If we interpret Regulation 76 (b) and find fault with it because it creates an
exception, it would be entirely a wrong approach. Undoubtedly the exception is created only to avoid inconvenience to such parties was have been
awarded the benefit at an insignificant rate and have to collect very small amounts. Now if this limit is to be seen unreasonable, then each and every
person was it be entitled to be commutation and then that would be totally against the spirit of Section 62. Besides, regulating of such limit and
making it applicable to all the persons receiving the benefit would be practically ultra vires the Act. Regulation is a child of the Act. It cannot travel
beyond the provisions of the Act. Once there is a specific bar created by Section 62 such regulation could not have been introduced as it would
completely offers that provision. For this reason also we find that the regulation is reasonable and does not suffer the arbitrariness. It will be entirely
incorrect to link this regulation the seriousness of the injury, because the main object of the Act is to provide ''periodical'' benefits and not a one
time compensation, so that the cover of social security remains with the employee for a long period of life. In this view also the criticism of the
regulation must be refuted. No other point was argued before us.
From the judgment of the learned single Judge we find that the learned single Judge was correctly rejected the challenge of the constitutionality
of Regulation 76 (b). We find that the appeal has no substance and therefore dismiss the appeal however, in the circumstances without any costs.