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Judgment
Jagannadha Rao, J.—The above CMA arises out of certain proceedings initiated by the second Respondent under the provisions of the Workmen''s Compensation Act, 1923 (hereinafter called ''the Act''). The second Respondent was employed by the Appellant company as a driver and while working on duty, there was an accident on 12.8.1979 when certain coal fell into his eyes. The matter was reported to the Assistant Engineer, Mala Kondaiah and thereafter, the 2nd Respondent was referred to the Medical Wing of the Appellant-company. However, the 2nd Respondent applied for leave on 2.9.1979 and continued to be on leave till 7.9.1979 and thereafter did not report to duty. On the ground that he was absent without leave, his name was struck off on 19.9.1979 from the rolls of the company. The 2nd Respondent made a representation on 12.2.1981 to the employer that by reason of the accident which occurred on 12.8.1979, he had lost both his eyes and that therefore, compensation may be paid to him under the Act. As the said representation did not succeed, the second Respondent filed an appeal on 21.7.1981 before the Commissioner for Workmen''s Compensation, Warangal. The Appellant-company filed a counter contending that no injury to the eyes of the second Respondent occurred while he was in service; that even if the second Respondent received such an injury, it could have been only after the termination of his services on 19.9.1979 and that the application made by the second Respondent to the Commissioner was a belated one. It further contended that the second Respondent failed to take any medical aid from the hospital attached to the company and that therefore, the application should be rejected.
The Commissioner accepted the case of the second Respondent that the accident occurred while the latter was an employee and had occurred during the course of employment. Taking the monthly wages of the second Respondent as Rs. 400/- per month, the Commissioner granted an order for Rs. 26,880/- in favour of the second Respondent. Against the said order, the present appeal has been preferred.
In this appeal, it is contended by the Learned Counsel for the Appellant that the injury to the eyes of the second Respondent did not occur while he was in office and that in any event, there was substantial delay in the filing of the application and that the Commissioner erred in granting the compensation of Rs. 26,880/- .
On the other hand, it is contended by the Learned Counsel for the second Respondent, Mr. Venkata Ramulu, that the findings of the Commissioner are correct. He also filed CMP 8671 of 1986 for receiving additional evidence, marking the said documents as Exhs. A-l to A-l 1 in this appeal. He also filed CMP No. 13979 of 1987 for condonation of delay of 7 days in filing cross-objections. According to him, the learned Commissioner proceeded on a wrong assumption that the second Respondent was receiving wages only in a sum of Rs. 400/- per month whereas the statement of the second Respondent in his petition before the Commissioner was that half of his salary was Rs. 400/- per month. It is also argued that the compensation is payable as per the table now given under the Workmen''s Compensation (Amendment) Act, 1984 (Act 22 of 1984) which has come into force with effect from 1.7.1984. It is further argued that the said amount is retrospective.
In reply thereto, it is contended by the Learned Counsel for the Appellant that the cross-objections are not maintainable in an appeal u/s 30 of the Workmen''s Compensation Act and also that the amount above referred is not retrospective.
The points for consideration are:
(1) Whether the injury to the second Respondent''s eyes occurred while he was in service of the Appellant;
(2) Whether cross-objections can be entertained in an appeal filed u/s 30 of the Workmen''s Compensation Act;
(3) Whether the amendment to Section 4 made in the Workmen''s Compensation Act by Act 22 of 1984 is retrospective.
Point No. 1
I shall first refer to the evidence adduced by the parties in this case. (Evidence omitted-Editor)
With a view to substantiate the workman''s contention that he was admitted in hospital at Sarojini Devi Hospital as well as at New Delhi, the workman has filed certain documents in CMP 8671 of 1986 as additional evidence. Having regard to the fact that the workman is a blind person and to the explanation offered in the affidavit filed in support of the said petition, I am inclined to allow this CMP and mark the documents in this appeal as additional evidence. The documents will be marked as Exhs. A-l to A-ll. (Particulars of the documents omitted- Editor)
On a consideration of the said documentary evidence and their proximity with the date of the accident, I am fully satisfied that the second Respondent lost his eyes on account of the accident which occurred while he was on duty in the Appellant''s service on 12.8.1979. Point No. 1 is found accordingly in favour of the second Respondent and against the Appellant.
Point No. 2
The question of law under this point is as to whether the cross-objections can be filed in an appeal preferred u/s 30 of the Workmen''s Compensation Act, 1923.
CMP No. 13979 of 1987 is filed for condoning the delay of 7 days in filing the cross-objections and the same is allowed for the reasons mentioned in the affidavit filed in support of the same.
There is no decided ruling of our High Court under the Workmen''s Compensation Act but there are rulings of other High Courts. In Moti Lal v. Thakur Das 1985 ACJ 634 (All) the Allahabad High Court has clearly held that in any appeal filed u/s 30 of the Act, the Respondent would be entitled to prefer cross-objections under Order 41, Rule 22, Code of Civil Procedure. Division Bench of the Kerala High Court has also taken the same view in Vijayaraghavan v. Velu 1973 ACJ 158 (Ker). A similar view appears to have been taken by the Calcutta High Court in ILR 1975 (1) Cal 1.
In this regard, I may state that when an appeal is allowed by statute to this Court, the ordinary incidents of procedure of this Court including a right to file cross-objections will be attracted. In National Telephone Company Ltd. v. Post Master General LR 1913 AC 546 the House of Lords observed as follows:
When a question is stated to be referred to an established court without more, it in my opinion imports that the ordinary incidents of the procedure of that court are to attach and also that any general right of appeal from its decision likewise attaches.
The above observations of the House of Lords were relied upon by the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar ILR 1948 Madras 505. Therein it was said as follows:
Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms, confer a right of appeal.
The Supreme Court while construing Section 76 of the Trade Marks Act, 1940, where a right of appeal was directed to the High Court and nothing more was stated, observed in National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), as follows:
That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.
The question as to whether in an appeal filed u/s 110-D of the Motor Vehicles Act, 1939, the Respondent would be entitled to file cross-objections arose in this Court. In Government of Andhra Pradesh Transport Department v. K. Padma Rani 1975 ACJ 462 (AP) the Division Bench consisting of Ramachandra Rao, J., (as he then was) and Raghuvir, X, referred to the above said judgments as also certain judgments of other High Courts under the Motor Vehicles Act and came to the conclusion that once an appeal is entertained by this Court, all the rules in the CPC would be applicable to such an appeal unless otherwise excluded by some specific provision of the special Act. Their Lordships clearly held that cross-objections could be filed in an appeal preferred u/s 110-D of the Motor Vehicles Act.
Following the aforesaid principles, I am of the view that even though there is no specific provision in the Workmen''s Compensation Act, enabling the Respondent to prefer cross-objections still, the cross-objections are maintainable.
I hold the point No. 2 in favour of the second Respondent-cross-objector and against the Appellant.
Point No. 3
Under this point the question for consideration is whether the provisions of Section 4 and Schedule IV as amended by the Workmen''s Compensation (Amendment) Act, 1984 (Act 22 of 1984) are retrospective and whether they are applicable to the case of the second Respondent in this appeal.
In this context I have taken the assistance of Mr. K. Nagaraja Rao, the learned Standing Counsel for the Central Government and I am thankful for the assistance rendered.
I have already mentioned that the above said Amendment Act came into force on 1.7.1984. Section 3 of the Amendment Act reads as follows:
(3) Substitution of new section for Section 4.-For Section 4 of the principal Act, the following section shall be substituted, namely:
(4) Amount of compensation.-(I) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(a) Where death results from the injury-
an amount equal to forty per cent of the monthly wages of the deceased workman multiplied by the relevant factor;
or an amount of twenty thousand rupees, whichever is more;
(b) Where permanent total disablement results from the injury-
an amount equal to fifty per cent of the monthly wages of the injured workman multiplied by the relevant factor;
or an amount of twenty-four thousand rupees, whichever is more;
For the purpose of the present discussion, I am not extracting the explanations newly incorporated in Section 4 and Schedule IV. On the basis of the abovementioned amended provisions of the Act, it is contended for the workman cross-objector that workman is entitled to the compensation as per Schedule IV which roughly works out at more than Rs. 80,000/- .
On the other hand, it is contended by the Learned Counsel for the Appellant that the above said amendment is not retrospective and it cannot be applied to the case of an accident which took place on 12th August, 1979. It is pointed out that u/s 4-A of the Workmen''s Compensation Act, the compensation is payable immediately on the date of the accident. Further, it is argued that some cases are pending in the courts cannot be a ground for conferring a benefit on the workmen who were in these cases and not giving the benefit to the cases of others which had been disposed of prior to 1.7.1984. It is also argued that inasmuch as the amendment casts an additional burden on the employer, the same cannot be construed as being retrospective. Reference was also made to certain cases decided by the High Courts with reference to an earlier amendment to the Schedule in 1962, 1966 and 1976 wherein it was held that such amendments were not retrospective.
The question as to whether the amended provisions are to be applied or not has to be decided by gathering the intention of the legislature while introducing the amendment. It is also necessary to bear in mind that unless there are express provisions in the amendment or there is a necessary implication in the amendment, the Amending Act cannot be treated as retrospective in so far as it affects the substantive rights of the parties and increases the burden on the part of the employer. No doubt, Section 3 of the Amending Act speaks of ''substitution'' of a new Section 4 in place of the old section. The question would be as to whether by using the word ''substitution'' the legislature necessarily intended that such substitution should take place from the date of inception of the enactment, as contended by the Learned Counsel appearing for the cross-objector. In this context reliance is placed on the decision of the Supreme Court in State of Maharashtra Vs. The Central Provinces Manganese Ore Co. Ltd., as to the meaning of the word ''substitution''.
In my view, merely because the word ''substitution'' was used, it cannot be held that the legislature intended that the ''substituted provision'' should be read as if incorporated in the Act from 1923 onwards. Such a construction of the statute might lead to serious prejudice and hardship not contemplated by the legislature and it is more likely that the legislature intended that the substitution should be from the date when the substituting enactment came into effect. For example, in Section 2 of the Amendment Act it is stated that the words "on monthly wages not exceeding Rs. 1,000/- " are to be ''omitted''. Obviously these words have to be ''omitted'' from the date of the omission. Likewise, it can be urged that the ''substitution'' is also to be effective from the date when the substituting enactment was brought into force. The fact that the amendment in Section 4 read with Schedule IV increases the liability of the employer is certainly a factor to be taken into consideration in deciding whether the amendment is retrospective or not. Further, as pointed out by the Learned Counsel for the Appellant, the fact that certain cases were fortuitously pending in the courts cannot lead to any additional advantage in favour of workmen involved in these cases as against the other workmen whose cases were decided before the date of the Amending Act. For example, if two workmen were involved in an identical accident prior to 1.7.1984 and if the case of one of the workmen was finally decided before 1.7.1984 while the other came to be pending in the courts, granting of the benefits of the amendment to the workman involved in the second case would clearly lead to discrimination which has no nexus to the compensation payable. Such a construction cannot be made.
Further, I may state that when the amendment was made in the Act earlier by Act 64 of 1962, the Orissa High Court considered the amendment of the Schedule as not being retrospective [vide Oriental Fire and General Insurance Company Ltd. v. Bidi 1972 ACJ 187 (Ori)]. Again when a similar amendment was made by Act 65 of 1966, the Gujarat High Court held the same to be not retrospective [vide G.M., Western Railway, Bombay v. Lala Nanda 1985 ACJ 57 (Guj)]. A similar view was taken of the 1976 amendment [vide Kochu Velu v. Purakkattu Joseph 1984 ACJ 630 (Ker)].
Following the aforesaid principles and rulings, I am of the view that the amendment introduced by the amending Act 22 of 1984 is not retrospective.
It is not in dispute that the sum of Rs. 400/- mentioned in the affidavit filed by the second Respondent before the Commissioner was one-half of the salary only and not the full amount of the salary. All that the workman stated was that one-half of his salary came to Rs. 400/- . The Commissioner, therefore, committed a mistake in thinking that the total salary of the second Respondent was Rs. 400/- . As the salary was Rs. 800/- , the workman would be entitled to the compensation payable under Schedule IV of the Act before its amendment in 1984. There is no dispute that the said sum would be Rs. 33,600/- .
In the result, the appeal is dismissed but the cross-objections are allowed and the compensation payable to the second Respondent is arrived at Rs. 33,600/- with interest at 6 per cent per annum from 21st July, 1981, the date of the petition filed by the workman and if any part of the amount is already paid, interest on such amount paid will cease from the date of such payment and will continue to run on the balance, till payment.
The appeal fails and is dismissed but the cross-objections are partly allowed. No costs.