Galaxy Security Services v. E.M.Moly and Others

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** ## **MFA.No. 106 of 2016** **AGAINST THE ORDER DATED 09-09-2016 IN ECC 542/2014 OF THE COURT OF THE INDUSTRIAL TRIBUNAL AND EMPLOYEES COMPENSATION COMMISSIONER, KOZHIKODE** ## **APPELLANT/2ND OPPOSITE PARTY:** **THE MANAGER, GALAXY SECURITY SERVICES, 44/518, FIRDOUS HOUSE, LFC ROAD, KALOOR, KOCHI-682017** **BY ADVS. SRI.P.RAMAKRISHNAN SMT.ASHA K.SHENOY SMT.PREETHI KESAVAN SRI.C.ANIL KUMAR SRI.PRATAP ABRAHAM VARGHESE SRI.T.C.KRISHNA** ## **RESPONDENTS/APPLICANTS & 1ST OPPOSITE PARTY:** **1 E.M.MOLY W/O LATE BALAKRISHNAN, EDATHIKANDY, MEETHAL, PO MEPPAYUR, MEPPAYUR AMSOM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT-673524** **2 E.M.SIBY, (MINOR) S/O LATE BALAKRISHNAN, REPRESENTED BY MOTHER/GUARDIAN E.M.MOLLY, EDATHIKANDY, MEETHAL, PO MEPPAYUR, MEPPAYUR AMSOM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT-673524** **3 E.M.ANJALY (MINOR) D/O LATE BALAKRISHNAN, REPRESENTED BY MOTHER/GUARDIAN E.M.MOLLY, EDATHIKANDY, MEETHAL, PO MEPPAYUR, MEPPAYUR AMSOM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT-673524** **MFA.No. 106 of 2016** 2 - **4 E.M.ONAKKAN** **FATHER OF LATE BALAKRISHNAN, EDATHIKANDY, MEETHAL, PO MEPPAYUR, MEPPAYUR AMSOM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT-673524** - **5 E.M.AMMALU** **MOTHER OF LATE BALAKRISHNAN, EDATHIKANDY, MEETHAL, PO MEPPAYUR, MEPPAYUR AMSOM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT-673524** - **6 THE CHAIRMAN CORPORATE OFFICE, RELIANCE INFOCOM LIMITED, DHIRUBAI AMBANI KNOWLEDGE CITY, NAVI BOMBAY, MUMBAI-400709** **R1 TO R5 BY ADV.SRI.V.N.RAMESAN NAMBISAN R6 BY SRI.T.R.HARIKUMAR** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA.No. 106 of 2016** 3 ## **C.R.** ## **JUDGMENT** This appeal raises an important question regarding the jurisdiction of the Commissioner, appointed under Section 20 of the Employees Compensation Act, 1923 (in short, the Act of 1923), to entertain and decide an application for compensation under Section 22 of the Act of 1923, when the employee defined under the said Act was covered under the Employees State Insurance Act, 1948 (in short, the Act of 1948). 2. The application was filed by the respondents 1 to 5, claiming compensation on account of the death of one Balakrishnan on 21.7.2003. Deceased Balakrishnan was the husband of 1[st] respondent, father of respondents 2 and 3 and son of respondents 4 and 5. The Commissioner, after examining the rival contentions, granted compensation to them to a tune of Rs.3,68,340/- with 12% simple interest. The appellant is the 2[nd] opposite party in the proceedings before the Commissioner, who is said to be the employer of deceased Balakrishnan. 3. Admittedly, Balakrishnan died due to drowning, and he was found dead at about 5 am on 21.7.2003 in a pond nearby his **MFA.No. 106 of 2016** 4 place if work. Applicants contended that the deceased went to the nearby pond to wash his body and uniform, and accidentally got drowned. Case of the applicants is that his death occurred during the course of employment with the 2[nd] opposite party, on behalf of the 1[st] opposite party. It is not in dispute that deceased Balakrishnan was working as a security personnel, guarding a mobile phone tower, erected and maintained by the 1[st] opposite party. The appellant/2[nd] opposite party is a business concern engaged in providing man power for security services. 4. The appellant raised two fold contentions. Firstly, the death did not occur during the course of employment and therefore, the applicants have no right to get compensation from the appellant. Secondly, the appellant security services is covered under the provisions of the Act of 1948 and therefore, the applicants have no right to claim compensation under the Act of 1923. 5. Since there is challenge against the Commissioner's jurisdiction to entertain an application and adjudicate thereon, this has to be considered first in point of time. 6. Heard the learned counsel for the appellant and the respondents. **MFA.No. 106 of 2016** 5 7. Learned counsel for the appellant contended that although deceased Balakrishnan was an employee defined under the Act of 1923, he cannot claim compensation under the said Act for the reason that the appellant firm was covered by the provisions of the Act of 1948. Section 2(9) of the Act of 1948 defines the expression 'employee'. Since no dispute is raised regarding the fact that deceased Balakrishnan would fall within the definition of “employee” under the Act of 1948, I need not venture to expatiate the scope of the definition. 8. In order to establish that the appellant establishment was covered under the Act of 1948, Ext.R4 series are relied on by the learned counsel for the appellant. Ext.R4 series are the receipts issued by the Employees State Insurance Corporation for payment of contribution by the appellant business concern in respect of the employees. Respondents 1 to 5 (applicants) have no case that the appellant establishment is not covered by the Act of 1948. 9. In this context, it is relevant to look into Sections 53 and 61 of the Act of 1948. Those provisions read as follows: “53. Bar against receiving or recovery of compensation on damages under any other law:- An insured person or his dependents shall not be entitled to **MFA.No. 106 of 2016** 6 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 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. 61. Bar of benefits under other enactments:- When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.” 10. On a plain reading of Section 53 quoted above, it can be seen that the bar under the aforementioned section is against receiving or recovering any compensation or damages from the employer of the insured person or from any other person under the Workmen's Compensation Act, 1923 or any other law for the time being in force or otherwise, in respect of an employment injury. The bar attracts only when an employment injury is sustained by the insured person as an employee under the Act of 1948. The words employed by the legislature are clear and unequivocal. When such a bar is created in clear and express terms, it would be impermissible and would be improper to infer a different contention. That would amount to bypassing the bar and defeating object of the provision. **MFA.No. 106 of 2016** 7 11. Likewise, Section 61 of the Act of 1948 reaffirms the above view by stating that when a person is entitled to any of the benefits provided under the Act of 1948, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment. On a conjoint reading of Sections 53 and 61 of the Act of 1948, beyond any pale of doubt it can be seen that the application for compensation filed under Section 22 of the Act of 1923 could not have been entertained by the Commissioner. In sofar as such an application is concerned, he has complete lack of jurisdiction created by the statutory provisions. Therefore, in this case, I have no hesitation to hold that he usurped a jurisdiction not vested in him. It has been clarified by binding precedents that any judgment or order passed by a court or authority usurping a jurisdiction not vested in it is nothing but nullity. Therefore, the order impugned is legally unsustainable. 12. It is pointed out by the learned counsel for the applicants that Ext.R4 series would not show that any contribution was paid in the name of deceased Balakrishnan. Learned counsel for the appellant, relying on _**Bharagath Engineering v. Ranganayaki and Another [2003 (2) SCC 138],**_ contended that payment or non-payment of contributions payable under the Act of **MFA.No. 106 of 2016** 8 1948 is really inconsequential and the deceased would be deemed to be an insured person entitled to the protection of the Act of 1948. In _**Bharagath's case,**_ following principles are laid down: 9. It is to be noted that the crucial expression in S.2(14) of the Act is 'are or were payable'. It is the obligation of the employer to pay the contribution from the date the Act applies to the factory or the establishment . In E.S.I. v. Harrisson Malayalam Pvt. Ltd. (1993 (4) SCC 361), the stand of the employer that employees are not traceable or that there is dispute about their whereabouts does not do away with the employer's obligation to pay the contribution. In E.S.I.Corporation v. Hotel Kalpaka International (1993 (2) SCC 9), it was held that the employer cannot be heard to contend that since he had not deducted the employee's contribution on the wages of the employees or that the business had been closed, he could not be made liable. Said view was reiterated in Employee's State Insurance Corporation v. Harrisons Malayalam Limited (1998 (9) SCC 74). That being the position, the date of payment of contribution is really not very material. In fact, S.38 of the Act casts a statutory obligation on the employer to insure its employees. That being a statutory obligation, the date of commencement has to be from the date of employment of the employee concerned. **MFA.No. 106 of 2016** 9 12. When considered in the background of statutory provisions, noted above, the payment or non payment of contributions and action or non action prior to or subsequent to the date of accident is really inconsequential. The deceased employee was clearly an 'insured person', as defined in the Act. As the deceased employee has suffered an employment injury as defined under S.2(8) of the Act and there is no dispute that he was in employment of the employer, by operation of S.53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that the Corporation has filed an affidavit indicating that the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons. 13. In the light of the above legal background, I have no hesitation to hold that the impugned order suffers from a serious infirmity for it was passed by an authority without any subject matter jurisdiction. Hence, it has to be set aside. However, it is made clear that this will not stand in the way of the applicants/respondents 1 to 5 claiming compensation under the Act of 1948 in accordance with law. **MFA.No. 106 of 2016** 10 In the result, the appeal is allowed. The impugned order passed by the Commissioner, Kozhikode in E.C.C.No.542 of 2014 is hereby set aside. The Commissioner shall reimburse the amount deposited by the appellant under Section 30 of the Act of 1923 forthwith. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD** **JUDGE** JV