ORDER
D. Raju, C.J.
1. The above writ petition has been filed seeking for a writ to call for and quash the order passed by the 1st respondent filed as Annexure P-1. The order under challenge passed by the 1st respondent is dated February 13, 1998, on an application filed by the father and mother of one Ashok Kumar, who was said to have been in the employment of the writ petitioner/respondent before the authority below, and who died on account of an accident and consequential injuries sustained by him in the course of his employment. Having regard to the only issue raised before us, it is unnecessary for us to delve at length about the details relating to the accident or about the quantification made of the compensation to be awarded under the Workmen's Compensation Act, 1923.
2. The sum and substance of the ground of challenge to the order of the 1st respondent is that it is in gross violation of Sections 53 and 61 of the Employees' State Insurance Act, 1948.
3. To appreciate the grievance of the petitioner it is appropriate to notice the stand taken by the Management/petitioner herein that the deceased Ashok Kumar was working in their factory since October 1993 and as per the Attendance Register maintained in the factory, he was last present on June 23, 1994, that the deceased was covered under the E.S.I. Scheme against registration No. 7427901 and premium was paid by the Management and that since the factory is covered under the E.S.I. Scheme, the claim made before the Commissioner for Workmen's Compensation under the Workmen's Compensation Act, 1923 is not maintainable, at all. Such an objection taken before the 1st respondent has been dealt with and overruled on the ground that the petitioner has failed to prove that the contribution towards the E.S.I. funds was paid or deposited by the petitioner in time as required under the Rules and that RWs. 2 and 3 have concealed the facts by withholding the relevant materials as to the deposit of the necessary contribution in respect of the deceased worker along with others and that at any rate inasmuch as the claimants have not obtained any compensation under the provisions of the Employees' State Insurance Act, 1948, there is no impediment for the respondents/claimants to prefer the claim under the Workmen's Compensation Act, 1923 or be awarded with such compensation. Before adverting to the factual findings in this regard, it is worth noticing the stand taken by the petitioner-Management on the basis of Sections 53 and 61 of the Employees' State Insurance Act, 1948.
4. Strong reliance has been placed by the learned Counsel for the petitioner on Sections 53 and 61 of the Act as also the decision of the Apex Court reported in A Trehan v. Associated Electrical Agencies, (1996-II-LLJ-721) (SC). Sections 53 and 61 of the Employees' State Insurance Act, 1948 read as follows at P 725:
'53. Bar against receiving or recovery of compensation or damages under any other law - An insured person or his dependents shall not be entitled to 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 (8 of 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.'
5. The decision in (1996-II-LLJ-721) (supra) construed the scope of the bar enacted in Section 53 of the Employees' State Insurance Act. That was a case wherein the claimant was the worker himself and the claim petition was in respect of an injury sustained in the course of his employment on account of which he was said to have lost the vision of his left eye. The employee therein was also an insured person under the Employees' State Insurance Act and he became entitled to the benefit of Section 46(c) of the said Act. He approached the Employees' State Insurance Corporation and obtained the benefit available to him under the Employees' State Insurance Act. Thereafter, he served a notice on the Management demanding Rs. 7 lacs as compensation and followed the same by filing an application under the provisions of the Workmen's Compensation Act, 1923 claiming Rs. 1 lac and odd with penalty, penal interest and costs. It is in such context an objection regarding the maintainability of the application under the Workmen's Compensation Act was taken and the objection was overruled by the authority under the Act applying the decision of a Full Bench of Kerala High Court reported in P. Ashokan v. Western Indian Plywoods Ltd., Cannanore, AIR 1987 Kerala 103. The Management pursued the matter before the High Court of Bombay by means of a writ petition, which was dismissed by the learned single Judge summarily on the ground that the Management had an alternative remedy by way of an appeal under Section 30 of the Workmen's Compensation Act. The Management then preferred an appeal. The Division Bench held that in view of the bar created by Section 53, the application filed by the appellant under the Workmen's Compensation Act was not maintainable. The worker pursued the matter before the Apex Court and their Lordships of the Apex Court while overruling the decision of the Full Bench of the Kerala High Court noticed above affirmed the decision of the Division Bench of the Bombay High Court. It was observed by their Lordships of the Apex Court, as hereunder at P 725:
'A comparison of the relevant provisions of the two Acts makes it clear that both the Acts provide for compensation to a workman/employee for personal injury caused to him by accident arising out of and in the course of his employment. The ESI is a later Act and has a wider coverage. It is more comprehensive. It also provides for more compensation than what a workman would get under the Workmen's Compensation Act. The benefits which an employee can get under the ESI Act are more substantial than the benefits which he can get under the Workmen's Compensation Act. The only disadvantage, if at all it can be called a disadvantage, is that he will get compensation under the ESI Act by way of periodical payments and not in lumpsum as under the Workmen's Compensation Act. If the Legislature in its wisdom thought it better to provide for periodical payments rather than lumpsum compensation its wisdom cannot be doubted. Even if it is assumed that the workman had a better right under the Workmen's Compensation Act in this behalf it was open to the Legislature to take away or modify that right. While enacting the ESI Act, the intention of the Legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident arising out of and in the course of his employment.
12. In this background and context, we have to consider the effect of the bar created by Section 53 of the ESI Act. Bar is against receiving or recovering any compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute as can be seen from the use of the words shall not be entitled to receive or recover. 'Whether from the employer of the insured person or from any other person', 'any compensation or damages' and 'under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise'. The words 'employed by the Legislature' are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to by passing the bar and defeating the object of the provision. In view of the clear language of the Section, we find no justification in interpreting or construing it as not taking away the right of the workman who is an insured person and an employee under the ESI Act to claim compensation under the Workmen's Compensation Act. We are of the opinion that the High Court was right in holding that in view of the bar created by Section 53 the application for compensation filed by the appellant under the Workmen's Compensation Act was not maintainable.'
6. As noticed earlier, relying upon the provisions of the Employees' State Insurance Act as also the decision of the Apex Court, the learned counsel for the petitioner contended that the bar is complete in that if it is a case falling under the provisions of the Employees' State Insurance Act, the relief otherwise available to a workman or his legal representatives/dependents to have recourse to the provisions or the remedies provided under the Workmen's Compensation Act, 1923, is barred.
7. Per contra, the learned counsel appearing for the respondents while relying upon the decisions reported in Vimal v. Attar Hussain 1987 ACJ 983 (M.P.); Hyderabad Asbestos Cement Products Ltd. v. Employees' Insurance Court, (1978-I-LLJ-181)(SC) and Western India Plywood Ltd. v. P. Ashokan (1998-I-LLJ-322) (SC) as well as Mangalamma v. Express Newspapers Ltd., AIR 1982 Mad 223 contended that the bar created by Section 53 has to be construed by confining it to claiming relief under both the Acts and not claiming under the Workmen's Compensation Act without claiming or obtaining any benefit under the Employees' State Insurance Act, 1948. In order to appreciate the tenability or otherwise of the submission for the respondents/claimants, it becomes necessary to advert to the decisions relied upon for the respondents.
8. In AIR 1982 Mad 223 (supra), the view taken therein which, along with the decision of the Karnataka High Court, which has been approved as the correct view, is in the following context. That was a case wherein a Division Bench of the Madras High Court while dealing with such a claim not only repelled the challenge to the validity of Section 53 of the Employees' State Insurance Act but held that the claimants who received the benefit under Section 53 of the Employees' State Insurance Act could not themselves challenge the validity of the provision. The worker concerned therein was of the Management, to whom the vehicle which caused the accident also belonged. In that case the claimants initially appear to have secured the benefits available under the Employees' State Insurance Act and thereafter filed a claim under the Motor Vehicles Act under Section 110-A resulting in an objection being taken by the Management about the maintainability of the claim under the Motor Vehicles Act in view of the bar created under Section 53 of the Employees' State Insurance Act. In the context of the above, the Division Bench also considered that the object of Section 53 of the Employees' State Insurance Act being to save the employer from facing more than one claim in relation to the same accident and inasmuch as the benefit under the Employees' State Insurance Act has already been obtained, the dependents of the deceased workman cannot claim compensation under Section 110-A of the Motor Vehicles Act, 1939. From the above, it is sought to be contended for the respondents that the Apex Court while approving the ratio of the decision in AIR 1982 Mad 223 (supra) must be considered to have confined the bar enacted in Section 53 of the Employees' State Insurance Act only to such cases where after availing of the benefit under the Employees' State Insurance Act further benefits are sought to be claimed under other enactments by way of compensation and not to the case where the claimants came to the forum under the Workmen's Compensation Act without availing or claiming any benefit under the Employees' State Insurance Act.
9. The decision in 1987 ACJ 983 (supra) of the learned single Judge of the Madhya Pradesh High Court in our view will be of no relevance when the question has to be considered in accordance with the decision of the Apex Court, under consideration.
10. The decision in (197S-I-LLJ-181) (SC) (supra) cannot also be said to be directly relevant for adjudicating the question now before us.
11. In (1998-I-LLJ-322) (SC) (supra), the scope of the bar enacted under Section 53 and the provisions contained in Section 61 of the Act came up for consideration. That was also a case wherein the question, as to whether an employee of a Management can claim damages under the ordinary common law based on tortuous liability when he has already received the benefit under the provisions of the Employees' State Insurance Act, 1948 came to be considered. Their Lordships of the Apex Court, who decided the case, reported in (1998-I-LLJ-322) (SC) (supra) while dealing with the claim before them have referred to the earlier decision on the subject and held as follows, after adverting to Section 53 and 61 of the Employees' State Insurance Act at P 326:
'13. In view of the aforesaid observations in Trehan case, (1996-II-LLJ-721)(SC) with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Section 53 disentitled an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen's Comepnsation Act or any other law for the time being in force or otherwise. The use of the expression 'or other wise' would clearly indicate that this section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the legislature had thought it fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including torts, in case where the injury had been sustained by him in an employment injury.
The ESI Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalamma case, (supra) had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred under Section 53 of the ESI Act, the trial Court was right in dismissing, the application under Order 33, Rule 1 of the Code of the Civil Procedure.
The position in law being clear and concluded by the decision of this Court in Trehan case (supra) we see no justification for the Court not exercising its jurisdiction under Article 136, as was contended by the respondent's counsel. The incorrect decision on a point of law of the High Court has to be corrected.'
12. We have carefully considered the submission of the learned counsel appearing on either side. In our view, the stand taken for the respondents/claimants and the endeavours made by their learned counsel to confine the ratio of the decisions of the Apex Court noted above by limiting their application only to cases where earlier benefits have been claimed under the Employees' State Insurance Act and received, cannot be countenanced in our hands. The fact that the judgments in those cases were rendered in such type or category of cases is no sufficient justification to limit the operation of the judgments in the manner it is proposed to be done for the respondents to such cases only, having regard to the fact that the ratio of the decision were not based on any particular factual basis or conduct alone nor those judgments could be said to have been rendered only in the peculiar factual situation that was presented in those cases. Per contra, the actual consideration undertaken by their Lordships was on the scope, purpose and extent of the bar created under Section 53 of the Employees' State Insurance Act supplemented and supported by the other provisions contained in Section 61 of the very same Act with particular reference to the very purpose and object of those provisions. The relevant portions of the judgments extracted (supra) would make it explicitly clear that the sum and substance of the dictum laid therein is to the extent that Section 53 of the Act disentitles an employee who has suffered an employment injury within the meaning of the Employees' State Insurance Act or his dependents from receiving or recovering compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise and, that the bar so created is clear and express besides being absolute, thereby rendering it neither permissible nor proper for construing it in a different manner, which will have the effect of defeating the object of the provisions as well as the intention of the Legislature to take away the very right under the Workmen's Compensation Act, 1923. In cases where a choice is to be only left with the aggrieved persons or the reliefs which are more than one available to an aggrieved person(s) are permitted or left to be availed of, at their choice and discretion, the Parliament was consciously employing different language to indicate such intention of the Legislature without leaving any doubts in this regard. We should not be understood to have relied upon a different provision in a distinct and separate Act to construe the provisions of the Employees' State Insurance Act when we make reference in their connection to the provisions of the Motor Vehicles Act, 1988, only for the limited purpose of pointing out the legislative practice adopted by the Parliament or the Legislature concerned, in this regard when such was the actual or real intention. Section 167 of the Motor Vehicles Act, 1988 providing for option to the claimants/aggrieved persons enacts that notwithstanding anything contained in Workmen's Compensation Act, 1923 where the death or bodily injury to any person gives rise to a claim for compensation under the said Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter 10 of the Motor Vehicles Act, 1988 claim such compensation under either of those Acts, but not under both. Such is not the provisions in this case. That apart, the Employees' State Insurance Act itself indicates an intention of the Parliament to the contrary. Section 53, as it is in force, presently, has been enacted by way of substitution by the Central Act 44 of 1966 with effect from January 28, 1968, for the then existing Section. A careful perusal of the previous Section 53, as it existed prior to its Substitution, would disclose that it not only did not carry such absolute bar but Clause (v) of the previous Section 53 specifically provided that 'Save as modified by this Act the obligations and liabilities imposed on an employer by the Workmen's Compensation Act, 1923, shall continue to apply to him.' The substitution of such a provision by the new Section 53 by enacting a bar in absolute terms in respect of an insured person or his dependents to 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 who is/was an employee under the Employees' State Insurance Act must be held to have been deliberate, specific and express, admitting of no room for any controversy or confusion as to the manner or extent of the bar, at any rate in respect of the claims made by such persons from the employer of the insured person, under the Workmen's Compensation Act, 1923.
13. For all the reasons stated above, we are of the view that the challenge made to the aintainability of the claim in this case, before the authority constituted under the Workmen's Compensation Act is well merited and has to be sustained.
14. The Commissioner for workmen's compensation has chosen to make certain observations casting doubts as to the coverage of the individual worker Ashok Kumar, who died and whose death has given rise to the claim for compensation. Apart from the fact that, factually such observation does not seem to be warranted in the teeth of the materials said to have been produced by the very authorities of the Employees' State Insurance Corporation and marked in evidence, once the establishment is covered by the Scheme under the Employees' State Insurance Act thereafter any and every person, who answers the description of an 'employee' and in respect of the 'employment injury' suffered by him, he would constitute an 'insured person' for the purpose of the Act having regard to the definition in Section 2(14) of the Employees' State Insurance Act, which defines such person to mean one who is or was an employee in respect of whom contributions are or were 'payable under this Act' and who is, by reason thereof, become also entitled to allow any of the benefits provided by the said Act. Section 68 of the Employees' State Insurance Act also would indicate that the default, if any, by the employer is no reason to render an employee under such employer outside the purview of the Scheme or absolve such employer from being proceeded against by the ESI Corporation for recovering the contribution as also the benefit which becomes payable under the Act and Scheme by the Corporation, to the employee. In view of all these and having regard to the further stipulation contained in Section 61 of the Employees' State Insurance Act that when a person is entitled to any of the benefits provided by the Employees' State Insurance Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment, the respondents/dependents are precluded from making any claim under the Workmen's Compensation Act, 1923, as has been done in this case.
15. Learned counsel for the respondents Mr. C.B. Singh, vehemently tried to raise the plea of availability of the alternative remedy for the petitioner against the impugned order, as the just reason to dissuade us from entertaining the writ petition or interfering at the instance of the petitioner in this writ petition. First of all, it is by now well settled that the existence of an alternative remedy is not an absolute bar and that it is always held to be only a rule of prudence or policy, convenience and discretion, rather than a strict rule of law. Though normally a person approaching this Court under Article 226 of the Constitution of India should not be allowed to circumvent statutory obligations or liabilities or avoid the other statutory authorities, the fact that such alternative remedy by way of appeal is also provided only to this Court, on substantial questions of law and that if at all the rigour of liability to be satisfied to avail of such remedy of appeal is only the prior deposit of the amount and the further fact that pursuant to the conditional order passed by this Court at the time of entertaining the writ petition, the petitioner did comply with the same by depositing the compensation awarded with up-to-date interest in the Registry of this Court, cannot be over looked in appreciating or countenancing this objection. That apart, we find that very serious and substantial question of law involving a proper construction of the statutory provision going to the root of jurisdiction of the authority under the Workmen's Compensation Act, 1923 and correct understanding of the judgments of their Lordships of the Apex Court is involved and such complicated questions cannot be allowed to rest finally with the hands of the type of authorities functioning under the Workmen's Compensation Act. Therefore, we see no merit whatsoever in the objection taken in this regard based on the omission to exhaust the alternative remedy and the objection on this account on behalf of the respondents, is overruled.
16. For all the reasons stated above, the impugned order of respondent No. 1 is hereby set aside. The contesting respondents/ dependents of the deceased worker are at liberty and shall be entitled to have recourse, to vindicate their rights, to the provisions of the Employees' State insurance Act before the authorities concerned in the manner known to and in accordance with law. The amount deposited by the petitioner pursuant to the interim order shall stand ordered to be released to the petitioner.
17. Interim order dated May 28, 1998 is vacated.