The present First Appeal has been filed by the appellant ESI Corporation being aggrieved with the impugned judgment and order passed in ESI Second Appeal No. 10 of 2009 by the ESI Court dated 29.4.2011 on the grounds mentioned in the appeal, inter alia, that the observations and findings by the ESI Court in the impugned order is wholly unjustified, without any application of mind towards the evidence or material on record and are based on surmises, conjectures and presumptions. It is also contended that the ESI Court ought not to have held that the Medical Board had rightly observed the percentage of disability and the ESI Court was not justified in interfering with the same findings as per the provisions of law and ought not to have enhanced without assigning any valid and cogent reasons. It is also contended that the ESI Court erred in not entertaining the Second Appeal of the appellant-Corporation and has erred in confirming the view taken by the Medical Appellate Tribunal (for short, 'MAT') in enhancing the percentage of disability from 0% to 10%.
2. Heard learned counsel Mr. S.D. Vasavada for the appellant. He has submitted that the Medical Board had, on the basis of the material and evidence, made the assessment with regard to the disability at 0%. However, the MAT has assessed the disability at 10% which has been assailed by the Corporation before the ESI Court. However, the ESI Court has confirmed the findings given by MAT in Appeal (MAT) No. 51/2006 which is not justified and it is not supported by any reasons.
3. Learned counsel Mr. Vasavada has submitted that the court is required to consider whether it would be a jurisdictional error or not on the part of both MAT as well as the ESI Court. He referred to the impugned order, para 5, and submitted that word referred to is "medical assessors", whereas there was only one Doctor present at the relevant time. Therefore, learned counsel Mr. Vasavada submitted that, is it possible for MAT or the ESI Court to decide the percentage of disability with only one doctor present, whereas the Medical Board consisting of a panel of doctors has made the assessment at 0%. He referred to this aspect and submitted that in fact the quorum or the constitution of the MAT was not sufficient. As would be seen, another Dr. G.D. Tharadra was not present and only one Dr. M.M. Prabhakar was present. Therefore, he submitted that the present appeal may be allowed and the matter may be remanded. For that purpose, he has referred to Regulation 76.
4. Learned counsel Mr. Vasavada has also submitted that the MAT, while deciding Appeal No. 51/2006 and the ESI Court while confirming the said order of MAT, has not given any reasons for the findings which are required to be given. He, therefore, submitted that the present appeal may be allowed.
5. The submissions made by learned counsel Mr. Vasavada are two-fold. First, with regard to the proper quorum or the constitution of MAT which decided Appeal No. 51/2006 setting aside the order of the Medical Board and accepting the disability at 10%. At the time when the appeal was heard, over and above the Chairman, the medical assessors who have been named included one Dr. M.M. Prabhakar and another Dr. G.D. Tharadra was absent. However, if it is examined with reference to Regulation 76, the submission is misconceived as it clearly provides that "an Appeal Tribunal shall be constituted by the State Government and shall consist of a Judicial Officer of the State Government being a person other than the Judge of an Employees' Insurance Court, who shall be assisted by the following persons to be selected by him as assessors -
(a) one or more medical experts.
(b) one or more officials of or members of Trade Union or Unions."
In other words, if there is one medical expert to assist as an assessor it would be sufficient and in fact the legislature in its wisdom has provided for such constitution of the MAT headed by the Chairman and supported or assisted by the assessors who are to be both from the medical field as well as from the trade union who would represent and take care of the workmen. Therefore the submission that the quorum was not there or constitution of the Tribunal was not proper cannot be accepted.
6. Another facet of the argument relating to the jurisdictional error also requires a closer scrutiny. There is no question of jurisdictional error when MAT is empowered under the Act to consider such aspects including the disablement and by way of providing an appeal in the statute itself, the legislature has taken care that it can be examined or scrutinized and the opinion of the medical board can be examined with reference to the details about the injury or disability referring to the papers including the case papers.
7. In the facts of the present case, the ESI Court has discussed in detail with regard to the injury that the workman received, the injury on the left eye, which is not in dispute and after he was referred for assessment of disability to the Board, the Board has assessed disability at 0% and therefore the workman had preferred an appeal before MAT, being Appeal No. 51/2006. The MAT, having considered the effect on the vision as well as the form which has been produced along with the opinion of the experts for such ailment like eye specialist, has come to the conclusion that there is disablement and it is also with reference to the Second Schedule of the Act and the ESI Court discussed how 10% has been assessed clearly stating that with 6.36 vision he had 50% disability, though ultimately the court confirmed the disability at 10% as decided by MAT.
8. It is in this background the submission made by learned counsel Mr. Vasavada that the order is without any findings or reasons cannot be accepted. Moreover, the provisions of sec. 82(2) of the ESI Act provides that "an appeal shall lie to the High Court from an order of an ESI Court if it involves a substantial question of law." As discussed, it cannot be said that there is any substantial question of law involved merely because the ESI Court has come to the conclusion that MAT has made the assessment with regard to the disability, which is just and proper. Further, it is required to be appreciated that a social piece of legislation with the object of providing general welfare has to be considered bearing in mind the underlying object and purpose of the legislation. The approach in such cases have to be balanced with humanity and the assessment of disability based on such medical evidence cannot be said to be perverse or contrary to the material and evidence on record as canvassed.
9. A useful reference can be made to the observations of the Hon'ble Apex Court in the case of Regional Provident Fund Commissioner v. Hooghly Mills Co. Ltd. & ors., reported in AIR 2012 SCW 902, wherein it has been observed, "Under the Directive Principles the State has the obligation for securing just and humane conditions of work which includes a living wage and decent standard of life. The said Act obviously seeks to promote those goals. Therefore, interpretation of the said Act must not only be liberal but it must be informed by the values of Directive Principles. Therefore, an awareness of the social perspective of the Act must guide the interpretative process of the legislative device."
Moreover, the approach in such cases, as observed, has to be balanced with a humanitarian approach.
10. Lord Denning has observed about purposive approach to the interpretation of such words used in the statute and has clearly observed, "A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
11. Therefore, bearing in mind the legislative intent and the fact that it is a beneficial piece of legislation intended for social welfare, the impugned judgment and order of the ESI Court which has discussed in detail the material and evidence cannot be interfered with and the submissions made by learned advocate Mr. Vasavada cannot be accepted. The present First Appeal, therefore, deserves to be dismissed and accordingly stands dismissed in limine.
In view of dismissal of the First Appeal, the civil application would not survive and the same is accordingly disposed of.
(Rajesh H. Shukla, J.) (hn) Top