D UMAPATHI Vs. GARISON ENGINEERS I

JUDGEMENT

(1.) THIS appeal is preferred against the rejection of the claimant's petition seeking compensation in respect of employment injuries sustained by virtue of an accident which occurred on 17. 8. 1997. The claim has been rejected by the Commissioner for Workmen's Compensation, bangalore ('the Commissioner' for short) on the finding that there was an inspection by the employees' State Insurance authorities ('esi authorities' for short) as on 15. 4. 1998 and that the investigation period 17. 5. 1997 to 15. 4. 1998 according to the authorities disclosed that the establishment was covered under the Employees' State Insurance Act, 1923 ('the ESI Act' for short) and that the claimant's name was found at Serial No. 9 of the list appended to the inspector's observations which is exhibited as Ex. R2. It is pointed out by the claimant that this finding is incomplete, in that, Regulation 4 of the Employees' State Insurance (General)Regulations, 1950 ('the Regulations' for short) which provides for the contribution and benefit periods, provides that if an individual who becomes an employee within the meaning of the Act, the contribution shall commence from the date of such employment and the corresponding benefit period will commence on the expiry of the period of nine months from the date of such employment. If this Regulation is applied, the claimant-workman would not be covered as on the date of accident under the ESI Act and therefore he would not be entitled for the benefit of the esi Act. It is in this light that he had preferred a claim under the Workmen's Compensation Act. This aspect has been completely overlooked by the Commissioner and accordingly has resulted in the impugned order which is under appeal.

(2.) PER contra, Sri. Niranj an Kumar, Learned Counsel appearing for the respondent would submit that whether the establishment is covered under the ESI Act from a period anterior to the date of accident, is the subject matter of other independent proceedings and the matter is pending consideration by the Supreme Court and in the event it is held that the establishment is covered from a date anterior to the date of accident it would result in the claimant also being provided with the benefit of the Act, in such an event, the management would be jeopardised in having to meet a dual liability both under the Workmen's Compensation Act as well as the ESI Act. This apprehension is ill-founded in view of the fact that at the present point of time the rights and obligations of the parties shall be determined in accordance with the present position that pertains and the order in any pending proceeding would accordingly have to be framed at the instance of the management and it would be the duty of the management to place such other circumstances which warrant such consideration. At the present point of time, in the present appeal, it would be wholly unnecessary to venture upon a possible order being passed in any pending proceedings.

(3.) ACCORDINGLY the present appeal is allowed. The order of the Commissioner is set aside and the matter is remitted to the Commissioner for fresh consideration in accordance with law. Having regard to the fact that the accident is of the year 1997, the Commissioner is directed to complete the proceedings well before December, 2005 if not earlier. No order as to costs.