Judgment:
1. We are shocked to note the fact of this case. We feel ashamed recording those facts.
2. An illiterate or half-literate person working as a labour in Kesoram Industries Ltd. (Textile Unit) fell down within the factory premises on February 14, 1990 at about 9.25 a.m. He was taken to the factory Hospital, where he was given first-aid treatment and was referred to E.S.I. Hospital, Manicktala. E.S.I. Hospital, Manicktala treated him at the out-door and referred him to E.S.I. Hospital, Sealdah. E.S.I. Hospital, Sealdah advised him: for admission, however, expressing their inability to admit him in absence of vacancy, referred him back to E.S.I. Hospital, Manicktala. Needless to mention, E.S.I. Hospital, Manicktala did not admit him. The ill-fated person was then taken back to his residence On the next day he was again taken to E.S.I. Hospital, Sealdah when he was admitted and immediately referred to E.S.I. Hospital Beliaghata with the remark that he was suffering from rabies/the word 'Rabies' was mentioned for the first time on February 15, 1990 in the discharge certificate issued by E.S.I. Hospital, Sealdah, appearing at page 32 of the Paper Book. On February 14, neither E.S.I. Hospital, Manicktala nor E.S.I. Hospital, Sealdah mentioned about the said disease, as appearing from pages 33 and 34 of the Paper Book. The ill-fated labour died at the I.D. Hospital on February 17, 1990. His wife was at the native place. She rushed from her native place after hearing the news. It is pertinent to mention that despite the fact that the victim visited hospital with the history of fall, the dead body was not sent for post-mortem examination. The E.S.I. Authorities did not even care to keep track of what had been happening to the ill-fated worker at I.D. Hospital.
3. Mr. Subal Maitra, learned advocate appearing for E.S.I. Corporation, contends that as soon as the case was referred to I.D. Hospital, the E.S.I. Authorities did not have any responsibility unless and until the case was referred back to their Hospital again.
4. The unfortunate widow along with minor son made a claim before the E.S.I. Corporation for compensation as dependents' Benefit under the provisions of Employees State Insurance Act, 1948. The E.S.I. Corporation contested the case. They filed written statement denying their responsibility, inter alia, on the ground that as soon as it was declared that his death was due to rabies, which was not an employment injury, the family was not entitled to compensation as per Section 46 of the Employees' State Insurance Act, 1948. In support of the claim the widow and the brother of the deceased victim deposed before the E.S.I. Court. Both of them denied having any symptom of rabies suffered by the victim. They deposed that they were not aware of any such disease. They narrated the incident referred to above and prayed before E.S.I. Court for allowing the claim as made by them in the claim petition. On behalf of the E.S.I. Corporation, one Sri Ranjit Kumar Sanyal, deposed that on August 30, 1990 while working as Manager at Garden Reach Local Office of E.S.I. Corporation, he had conducted an enquiry and had submitted report. The relevant extract of his deposition is as follows: 'I was satisfied that the closed injury of the applicant was an employment injury on the very day of investigation '....' I opined that it was a case of employment injury, I say that the applicant sustained an employment injury on February 14, 1990.' The learned Judge of the E.S.I. Court, heavily relied on the statement of the Manager who conducted the investigation. The learned Judge took immense pain in discussing: the symptom as well as the treatment of rabies from the medical journals as well as medical jurisprudence. He ultimately came to a finding that the family of the deceased deserved compensation.
5. The learned Judge observed that the applicants would be entitled to dependents' Benefit according to the Rules and Regulations. Being aggrieved by and dissatisfied with the judgment and order of the learned Judge, the E.S.I. Corporation filed the instant appeal.
6. There is also another misery, which we would be failing in our duty if we do not, mention. The E.S.I. Court decided the matter on October 11, 1996. E.S.I, filed the appeal on February 6, 1998 along with an application for condonation of delay as the appeal was barred by time. The Division Bench condoned the, delay on August 23, 1999 when six weeks' time was given to E.S.I. Corporation to file Paper Book after arrival of the relevant records. The records arrived at the Department on May 16, 2000 but our department did not communicate t to the E.S.I. Corporation until March 4, 2003 when it was made known to all when the appeal appeared in the list. The time, granted earlier for filing paper book, having been expired, E.S.I. Corporation again approached the Division Bench of this Court for extension of time. The Division Bench extended the time by another six weeks and directed the Department to formally communicate the information with regard to the arrival of records. Our Department took three years time to issue such notice, ultimately on July 24, 2006 the Department issued such notice. The E.S.I. Corporation thereafter took about 5 months to file Paper Book. The Paper Book was filed on December 11, 2006. The appeal has been assigned to us last week.
7. We are amazed how our administration at all levels deal with poor and illiterate people. The victim, being a labour, fell down within the factory premises on February 14, 1990. He had to move like a shuttle cock from one Hospital to other. We can safely presume that either he was not properly treated or it was too late to diagnose his real disease. The victim succumbed to his injury on February 17, 1990.
8. The unfortunate family is crying for death benefit, which they are entitled in law. Our system does not permit such benefit to be extended to the family even after 19 years from the date of death of the victim.
9. Let us examine every stage of lapses the victim had to suffer. On February 14, 1990 when he was taken to E.S.I. Hospital, Manicktala the doctors did not diagnose that it was a case of rabies. He had trauma coupled with pain in right shoulder joint. The doctors did not record the body temperature at least it is I not manifested from the outdoor ticket appearing at page 33 of the Paper Book. He was referred to E.S.I. Hospital, Sealdah. The doctors examined him at about 10.35 a.m. on that day. They advised admission, as would I appear from the outdoor ticket. They expressed their inability to admit him in absence of vacancy. This is also apparent from the out-door patient ticket appearing at page 34 of the Paper Book. He was returned to E.S.I, Hospital, Manicktala. Fact remains, he visited E.S.I. Hospital, Sealdah again on the next day when he was admitted and immediately sent to I.D. Hospital, as would appear from the discharge certificate appearing at page 32 of the Paper Book. For the first time, the doctors diagnosed rabies, as appears from the discharge certificate. Neither the details of the symptoms were recorded nor any clinical and/or pathological examination report of any kind is attached to the discharge certificate. We have to stop here as we do not have any record from I.D. Hospital. E.S.I. Authorities say that they do not have any responsibility either to direct or to investigate what had actually happened to the patient at the I.D. Hospital. E.S.I. Authority also did not take up the issue with the I.D. Hospital as to why the body of the victim was not sent for post-mortem examination. It would be travesty of justice if one conclusively comes to a finding depending on the discharge certificate, appearing at page 32 of the Paper Book that he died of rabies. The learned Judge took immense pain to go through Medical Journals as well as Medical Jurisprudence and ultimately came to a finding that it was a case of employment injury and the benefit must be given to the family.
10. The man is no more. We cannot bring him back. The family must be given death benefit at once. E.S.I. Corporation is directed to act upon the direction of the E.S.I. Court, forthwith preferably within a period of two-weeks from date. The benefit must reach the family of the deceased within two weeks from date. The Officers of the E.S.I. Corporation must visit the residence of the applicants and hand-over the cheque drawn directly in their respective names in proportionate share within the said period.
11. Both the claimants being the respondent Nos. 1 and 2 would be entitled to cost of this appeal assessed at Rs. 5,000/- each to be paid to them along with the compensation as directed above.
12. After the payment is made the E.S.I. Corporation would be at liberty to withdraw the sum already deposited with the Registrar General of this Court.
13. A copy of this judgment be sent to the Ministry of Labour, Union of India as well as Ministry of Health, State of West Bengal.
14. We hope and trust that good sense shall prevail upon them to have a thorough investigation into the affairs of the E.S.L Hospitals.
15. Mr. Maitra says that E.S.I. Corporation has no direct control for running of the Hospitals by themselves. They are only to pay 7/8th share of the expenditure. The Hospitals are under total control of the State. We do not wish to make any comment, it is for the appropriate authority to give a second thought with regard to the functioning of the entire Scheme which is supposed to be a social welfare scheme.
16. The appeal is disposed of.
17. The appeal is disposed of accordingly without any order as to costs.
18. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.