Vimal vs Attar Hussain and Another

V.D. Gyani, J.—This appeal u/s 30 of the Workmen''s Compensation Act has been preferred by a slate pencil cutter, suffering from silicosis, whose claim for compensation has been dismissed by the Commissioner by his judgment dated 24.7.1984 passed in case No. 23 of 1984, solely on the technical ground that it was not maintainable.

The Appellant filed his claim for compensation against the Respondent-employers, in whose slate pencil works he had been working for over ten years, immediately preceding the filing of his claim, which was resisted by the employer-Respondents on all conceivable grounds, tenable or untenable, permissible or impermissible, under the law.

The claim petition was filed on 23.12.1980 and the Respondents filed their separate written statements on 23.3.1981. The case was fixed for filing of list of witnesses by the parties on 21.4.1981, when the Respondents instead of filing such a list moved an application for better particulars under Order 6, Rule 5, CPC and it took almost six months for the Labour Court, to decide the same. The necessary amendment was to be made by 15.10.1981 and what follows thereafter, is a sad commentary. For three months, the Labour Court had no room to hold its sitting at Mandsaur, as is evidenced by the order sheet dated 25.1.1982. As a necessary consequence of amendment, an additional issue was to be framed, but the Labour Court took four months from 8.3.1982 to 17.7.1982 to realise that no such additional issue was required to be framed and the case was fixed for evidence and arguments of both the parties on 11.10.1982, but that was not to be. For some reason or other either nonpayment of process or non-service of summons on the witnesses, the case had to be adjourned from date after date. Finally, when the Appellant closed his case and as no witness for the Respondents was either summoned or kept present or produced on that day, yet their prayer for adjournment was granted by the learned Judge of the Labour Court and from 19.3.1983 (when the Appellant closed his case) to 3.3.1984, no witness was produced by the employer-Respondents although number of opportunities were sought and granted. Finally, it was on 24.7.1984 that the Labour Court recorded the Respondents'' case as closed and heard arguments. The impugned order was passed on 30.7.1984. This long arduous litigation was fought between a labourer, a patient of silicosis, a pauper who was not even in a position to pay the required court fee and the owners of slate pencil industry. What a battle between two unequals. This long narration of dates has become necessary, with a view to impress upon our Labour Courts that there is a purpose behind prescribing time limit for deciding such cases, which should be sincerely adhered to. Six months'' time prescribed for disposal of the case as such is taken for disposal of an interim which ought to be decided then and there or at the earliest. Framing of an additional issue need not detain any court, much less a Labour Court where the poor and the weak throng for justice, who should not be required to wait for months and months together. Our Labour Courts have a great responsibility to share in dispensing justice to the labour class and how shocking it reads that the Labour Court should have no room available for holding its sitting at the District Headquarters, like Mandsaur; as is evident from order-sheets dated 15.10.1981 and 25.1.1982.

Coming now to the merits of the case, the employer-Respondents have not chosen to enter the witness-box nor examined any witness to rebut the claimant-Appellant''s evidence, as regards his employment with the Respondents, the sickness he suffered during the employment, the monthly salary of Rs. 400/- drawn by him and his dependents his wife, his father, son and daughter aged three and eight years respectively, all these facts have been duly established. The Respondents have examined one Rameshchandra Mishra, Manager, E.S.I, at Ratlam solely with a view to prove that the Appellant''s claim under the Workmen''s Compensation Act was not maintainable thus the Appellant''s evidence on other aspects of the matter has not been rebutted so much so the Respondents did not choose to enter the witness-box to state on oath that the claimant-Appellant was not at any point of time, in their employment and that he was not drawing a salary of Rs. 400/- p.m. No record has been produced. It has been proved beyond doubt by medical evidence that the Appellant suffered from pneumoconiosis, which was attributable to his employment, in slate pencil works. ''Nodular opacities'' were observed in X-ray Exh. P-2 which is an unfailing symptom of silicosis Dr. Purnashankar Bhatt, who was a specialist, posted at Government Medical Hospital, Mandsaur, was cross-examined at length but nothing material turned out. Exh. P-1 is the certificate given by the Medical Board, consisting of the Civil Surgeon, Mandsaur, Dr. Narolia, Dr. Solapurkar and the witness Dr. Bhatt. They were members of Silicosis Committee. Thus, the claimant has proved his employment as well as ailment. Except to support the technical objection, Respondents have adduced no evidence in rebuttal in spite of more than a dozen of opportunities sought and granted to them for the purpose. The first date for evidence of both the parties was fixed on 11.10.1982 and the Respondents had too many opportunities for adducing evidence, which they had so desired till 24.7.1984, but as the order-sheets disclose, they never sincerely meant to produce evidence, except to support their technical objection about the maintainability of the claim petition. They examined Ramesh-chandra Mishra, Manager, E.S.I. Corporation at Ratlam, who merely produced Exh. P-4 and its counterfoil Exh. D-1 which, as stated above, does not bear any endorsement, seal or signature of any of the officers or authority of the Corporation, nor has the witness Rameshchandra Mishra referred to any such signature, obtaining on exhibits P-4 and D-1. It is on the basis of this evidence that the Respondents support their objection that in view of Section 53 of the Employees'' State Insurance Act, a claim petition under Workmen''s Compensation Act is not maintainable.

So far as Section 53 of the Act is concerned, suffice it to say that the Respondents have failed in placing any such material on record, which may attract Section 53 of the Employees'' State Insurance Act. The section reads as follows:

Bar against receiving or recovery of compensation or damages under any other law. An insured person or his dependants 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.

On plain reading of this section, it is clear that the applicability of this provision depends on the Respondents establishing that the claimant/Appellant was "an insured person" within the meaning of this Act. ''Insured person'' has been defined in Clause 14 of Section 2 of the Employees'' State Insurance Act. The definition of ''insured person'' is:

insured person'' means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act.

It was, therefore, incumbent on Respondents to have proved the contributions made by them, in respect of the claimant-Appellant or at least stated on oath that it was so payable by them. There is total lack of evidence except production of Exh. D-1 which also does not bear any endorsement, signature, or seal of any of the authorities of the E.S.I. Corporation. There is no evidence at all. D-1 is the counterfoil of Exh. P-4 which purports to bear the Appellant''s signature, what is surprising is that the signature on this Form has not been confronted to the claimant/Appellant. It is also clear from the date 21.12.1981, put underneath the signature of the employer, on Form Exh. P-4 and as has been admitted by the Insurance Manager the entries therein must have been made after this date, i.e., 21.12.1981. This piece of evidence Exh. P-4 concocted by the Respondents as a device to defeat the Appellant''s claim for compensation, which had already been filed on 23rd December, 1980, almost a year prior to the employer filing the declaration Form Exh. P-4 on 21.12.1981. It was produced in the court after the Appellant''s evidence was closed. It is unfortunate that the employers should have taken recourse to such a device for defeating the claim of a poor employee suffering from silicosis. Such practice deserves to be deprecated in no uncertain terms. For want of evidence of material available on record, the plea raised by the Respondent''s counsel as regards maintainability of claim under the Workmen''s Compensation Act fails, as fail it must.

The Applicant has proved in his case, considering the evidence on record adduced by him, his age, earning and the dependants his son and daughter, wife and father, the amount of compensation of Rs. 20,000/- as claimed by the Appellant, cannot be said to be unreasonable. It is, therefore, held that the Appellant is entitled to this compensation of Rs. 20,000/- with interest at the rate of 12% p.a. from the date of application and the Respondents are held jointly and severally liable to pay the compensation to the claimant/Appellant as the Appellant suffered from silicosis during the course of his employment with the Respondents.

For the foregoing reasons, this appeal deserves to be allowed and accordingly allowed, the order passed by the Commissioner is set aside, the Respondents shall bear Appellant''s costs throughout. Counsel''s fee Rs. 250/- if certified.

Schedule III of the Workmen''s Compensation Act is wide enough to cover the Appellant''s case. Both the Workmen''s Compensation Act, 1923 and the Employees'' State Insurance Act, 1948 are pieces of social welfare legislation. The Labour Courts while interpreting the provisions of these enactments must bear in mind that any doctrinaire approach in interpretation should be avoided lest it defeats the very object and purpose of these Acts. This appeal unfolds a human aspect of the matter, hundreds of workers who are employed in industry or manufacturing units of slate pencil work under potential risk and hazards to their lives. Manufacture of slate pencil needs cutting of stones with aid of circular saws, it includes processing, handling, slicing of stones, separating pencils at the grooves cut by saws and other incidental processes such as cutting, counting, packing, pointing and sorting of pencils and all these activities go on in the midst of dust which escapes into the air, which is inhaled by the workers with every breath resulting in the deadly occupational disease ''silicosis.'' The employees are required to be medically examined at intervals of six months each and the civil surgeon of the district has to certify physical fitness of the employees who are also required to be radiologically examined before the fitness certificate is issued. In the Appellant''s case ''nodular capacities'' have been found in his skiagram, as per Exh. P-3 and as deposed to by Dr. Purnashankar Bhatt, the Radiologist found bilateral infiltration of the chest. It has also been reported by the Radiologist who had examined the Appellant, on being referred by Dr. Bhatt.

A person driven by poverty takes up a job in the slate pencil industry primarily in order that he may live and keep his pot boiling so that not only he, but also his dependants live. In face of deadly hazards, involved in the job, yet as a large number of workers accepting these jobs merely points to the acute poverty, which compels them to accept such jobs no volition, no choice but sheer compulsions of poverty drag them into the jaws of death. The employers, industrialists, instead of making a common cause with the employees suffering from silicosis are too eager to contest the claims for compensation when filed on any ground that suits them, going to the extent of concocting false evidence to defeat their claims on the grounds not tenable in law (as in this case). Instead of providing necessary safeguards, installing efficient exhaust draughts, localised ventilation by mechanical means so as to prevent the dust from escaping into the air, they are too averse to doing anything; which would involve an additional burden on their purse for providing safety measures. This callous attitude of unscrupulous employers is slowly dragging hundreds of employees towards imminent death. Many have succumbed to silicosis, a deadly occupational disease, many more are still suffering. Elementary precautions at the work site against inhalation of dust must be taken, so as to prevent the disease as far as possible and similar other respiratory ailments. Silicosis, as it is, has no effective cure, callous disregard to the norms of safety laid down by the Government, it is the duty of officers concerned, to see that the instructions issued by the Government in this behalf are actually implemented and followed by the owners of the slate pencil industry. Any lethargy or remissness in the matter should be sternly dealt with.