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Judgment
G.N. Vaidya, J.—The above First Appeal filed by the Century Spinning and Manufacturing Company Limited u/s 82 (2) of the employees'' State Insurance Act, 1948, raises two points, (1) whether after the repeal of section 66 of the Employees'' State Insurance Act, 1948, by section 29 (which came into force on June 17, 1967) of the Employees'' State Insurance (Amendment) Act, 1966 (Act No. 44 of 1966), the Employees'' Insurance Court had jurisdiction to entertain the application filed by the Employees'' State Insurance Corporation under the repealed section 66 on December 6,1967 and (2) whether the Employees'' Insurance Court was right in coming to the conclusion that the employers-appellants were guilty of negligence and were liable to reimburse the Corporation with the amount which the Corporation paid to the employee, namely Rs. 5,815.19 P. with interest.
Now, section 66, as it stood prior to its repeal, read 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 or 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 u/s 12 of the Workmen''s Compensation Act, 1923 (VIII of 1923), the acturial present value of the periodical payments which the Corporation is liable to make under this Act.
(2) For the purposes of this Act, the actuarial present value of the periodical payments shall be determined in such manner as may be specified in the regulations."
Although the Employees'' State Insurance (Amendment) Act, 1966, repealed the said section 66; section 43 of the Amending Act (which came into force on January 28, 1968) laid down as under :
"43. Act not to apply to certain cases: No provision of this Act shall apply to and in relation to any payment which has been or is being, or is 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 the 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."
In my opinion, the plain meaning of section 43 is that in respect of a payment to be made prior to the coming into force of section 29 which repealed section 66, the Corporation was entitled to be paid u/s 66 having regard to the provisions of section 43 which no doubt came into force during the pendency of the application filed by the Corporation in the present case. Although the application in the present case was filed after the repeal of section 66 and before the coming into force of section 43, section 6 of the General Clauses Act, 1897, kept alive the right of the Corporation to receive the payment u/s 66 and to adopt the remedy which was available to it in respect of that payment by filing an application before the Employees* Insurance Court, Bombay.
It is true that section 43 refers to the application pending on the date on which section 29 repealed section 66, that is, June 17, 1967, but even if that provision of section 43 does not apply, as already stated above the provisions of section 6 would apply and the application would be maintainable as both section 6 of the General Clauses Act and section 43 of the Amending Act saved the right of the Corporation to receive the payment under the repealed section 66.
In view of this position, I have in a series of unreported decisions ordered payment under the repealed section to be made to the Corporation in respect of injuries sustained prior to the repeal and payments made by the Corporation prior to the repeal. The fact is that in the present case payments had commenced to be made by the Corporation. Following these decisions, therefore, even in the present case although the application was made on December 5, 1967, I think that the learned Judge of the Employees'' Insurance Court, Bombay, was right in entertaining the application and exercising the jurisdiction under the Act and awarding the reimbursement u/s 66.
However, Mr. Srikrishna, the Learned Counsel for the appellants, has relied on certain decisions of the Punjab and Haryana High Court, Rajas than High Court and Karnataka High Court and contended that such a view is not correct as section 6 of the General Clauses Act would save the right only where there was no contrary intention expressed by the Legislature in an enactment. According to him, a contrary intention was expressed by the Legislature by not bringing into force section 43 simultaneously with the coming into force of section 29 of the Amending Act and by not using the word ''reimbursement'' in section 43 of the Amending Act.
Mr. Jaykar, the Learned Counsel appearing for the respondent-Corporation, submitted that this point not having been taken before the Employees'' Insurance Court, it should not be allowed to be taken before this Court, and he is taken by surprise. But the point was in fact taken by the appellants in their Memorandum of Appeal, and it must be stated to the credit of Mr. Srikrishna that he has fairly pointed out that there is a controversy about the point of jurisdiction among the different High Courts in this country and he was not aware of the view taken by this Court as the judgments of this Court are not reported on the point.
Thus, while relying on the decision of the Punjab and Haryana High Court in Employees'' State Insurance Corporation, Chandigarh Vs. Dalmia Dadri Cement Ltd. and Another, , he fairly pointed out that a Division Bench of the Kerala High Court in The Parli Tile Works (P) Ltd., Parli v. The Employees'' Insurance Court, Keshikode and others 1974 Lab. I C 643, has dissented from the decision of the Punjab and Haryana High Court.
The single Judge of the Punjab and Harayana High Court interpreted the word ''payment'' in section 43 of the Amending Act as payment to the employees and not reimbursement to the Corporation under the repealed section 66. With respect, I find it difficult to agree with that view, and 1 am in agreement with what was held by the Division Bench of the Kerala High Court as follows :
"Liability of employer to reimburse Insurance Corporation for the payments made by it in respect of employment injury sustained before the amendment is not affected due to deletion of section 66 by the amendment and Employees'' Insurance Court has jurisdiction to deal with application in relation to such payments."
Mr. Srikrishna also fairly pointed out that the same view was also taken by a Division Bench of the Madhya Pradesh High Court in S. P. Nanawaty and another v. Employees State Insurance Corporation, Jabalpur 1971 Lab. I C 1576.
Mr. Srikrishna also very fairly drew my attention to the decision of a single Judge of the Delhi High Court in Fedders Lloyd Corporation (P) Ltd. v. Employees'' State Insurance Corporation, New Delhi 1975 IFC 287, where, with respect, it was rightly held that the payment which is required to be made by an employer to the Corporation u/s 66 is a payment within and relating to the expression "payment relating to employment injury" used in section 43 of the Amending Act which has omitted section 66 from the principal Act; and, therefore, proceedings relating to such payment pending on the date of the amendment would continue to be governed by the principal Act as if the Amending Act had not been passed.
12-A. So far as the decision of the Division Bench of the Karnataka (then Mysore) High Court in The Employees'' State Insurance Corporation v. Bagh Singh and others 1974 Lab. I C 409, the decision no doubt supports the arguments of Mr. Srikrishna, but with utmost respect it is not possible to agree with the view, as the attention of the Court does not appear to have been drawn to section 43 of the Amending Act, and the Court did not consider the effect of section 6 of the General Clauses Act also in that case.
Turning lastly to the decision of a single Judge of the Rajasthan High Court in Employees State Insurance Corporation, Jaipur v. N. K. Sondhi and others 1976 Lab. I C 716, there again, with respect, neither the effect of section 43 of the Amending Act nor the effect of section 6 of the General Clauses Act appears to have been noticed by the Court.
Moreover, as already stated above, I have consistently taken the view in a series of unreported judgments that when the injury might have taken place, in spite of the repeal of section 66 the Corporation was entitled to be reimbursed if its claim otherwise fulfilled the requirements of section 66 prior to its amendment. I am, therefore, rejecting the first point urged in support of the appeal.
Turning now to the second point, there is some force in the argument of Mr. Srikrishna that the commissions of Bevokar, who was the witness examined by the Corporation as having visited the spot of the accident in the mills on August 12, 1966 in respect of the accident to the employee Pitambarlal Mewalal on July 15, 1966, were serious and his evidence could not be relied upon for any purpose whatsoever to support the case of the Corporation. He, however, relied on his admission in the cross-examination that he did not come to know whether at the time of the accident the lights were off or on, which was contrary to the admission made by the employee Pitambarlal that the lights had gone off three times between 10.5 and 10.15 p. m.
Mr. Srikrishna also relied on the evidence, led on behalf of the appellant mill, of Shrikant Kavishwar that he was on duty upto 8.30 p. m. on July 15, 1966 and till that time the guard was on the V Belt, which according to Mr. Srikrishna contradicted the evidence of the employee that there was no guard on the V Belt when he worked for six months prior to the date of the accident, namely, July 15, 1966, and that he was adjusting the slow moving batching belt for which guard is not required to be removed, and which was produced on the record.
These discrepancies are no doubt there, but they have been taken into consideration by the learned Judge in appreciating the evidence and in believing the employee and observing as follows in para 7 of his judgment :
"Guard is removed by the man from Maintenance Department. No man from Maintenance Department is examined to deny the fact that guard was removed by them. Batching belt being a slow moving belt, the machine is not required to be stopped. Opposite party''s (appellants'') witness does not state that injured Person was given any such instructions. It is no doubt an after-thought. Lights in the Department were going off several times. It was within the knowledge of the Management. The risk involved was incidental to the employment of the Injured Person. No negligence or disobedience on the part of the Injured Person is established. The pulley was revolving and was accessible to the Injured Person who wished to shift the batching belt. The danger zone in between the V Belt and the pulley was not securely fenced and there was no absolute safety provided against the risk of coming in contact with the danger zone. The accident was reasonably foreseeable. There was no compliance of the requirements of section 21 (1) (iv) (c) of the Factories Act and the Opposite Party (the Appellants) is liable for negligence and for reimbursement of the amount claimed by the Corporation u/s 66 of the Employees'' State Insurance Act."
The said finding is purely a finding of fact based on an appreciation of the evidence and the probabilities of the case and of the circumstances. Mr. Jayakar has drawn my attention to the first report sent by the employers to the Corporation, produced at Exh. 2, in which the employers had themselves admitted that the injured person was not at the time of the accident under the influence of drink or drug, that there was no wilful disobedience of the injured person to an order expressly given or to a rule expressly framed for the purpose of securing the safety for employees'' and that there was no wilful removal or disregard by the injured person of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of the employees.
This report and the admissions made by the employers therein fully corroborate the case of the Corporation that the worker was not responsible for removing the guard, and as the learned Judge has believed the employee, the finding based on appreciation of evidence cannot be challenged in this Court in view of the limitations of the powers of this Court u/s 82(2) of the Employees'' State Insurance Act inasmuch as no substantial question of law or even a question of law is involved in the said finding.
In the result, I find no error in the order passed by the learned Judge of the Employees Insurance Court, and the order is, therefore, confirmed. The appeal is dismissed, but in the circumstances of the case there shall be no order as to costs.