Chief Workshop Manager (P), Carriage Repair Workshop Vs. Akshaya Kumar Rout - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - railway, he sustained grievous injuries like fracture of hip joint due to accident which arose out of and in the course of his employment.a. pasayat, j.1. award of compensation to akshaya kumar rout, respondent in this appeal (hereinafter referred to as 'the claimant'), by joint labour commissioner-cum-commissioner for workmen's compensation, orissa, bhubaneswar (in short, 'the commissioner') is the subject-matter of challenge by the employer, indian railways.2. claim for compensation lodged by the claimant under the workmen's compensation act, 1923 (in short 'the act') was essentially on the following background:on 4.8.1986 at about 9.20 a.m. while the claimant was working as fitter in mancheswar coach repairing workshop of the s.e. railway, he sustained grievous injuries like fracture of hip joint due to accident which arose out of and in the course of his employment. he was 25 years of age and was getting rs. 1,200/-per month as wages. on account of the said accident he has become permanently disabled to some extent. the chief workshop manager (p), carriage repair workshop, mancheswar railway workshop, was impleaded as opposite party in the claim application.3. the stand of the opposite party, the appellant in the present appeal, was that the claimant was in service and was getting his full salary. there was no question of any disability or loss of earning capacity.considering the materials placed for consideration the commissioner awarded rs. 18,804.75 holding that there was loss of earning capacity to the extent of 45 per cent.4. to further his claim about loss of earning capacity the claimant had submitted the disability certificate issued by dr. shribatsa dash and orthopaedic handicapped certificate issued by dr. p.k. rath.5. the primary ground of assail in this appeal is that the claimant having rejoined his duty after treatment there is no question of any physical disability much less any loss of earning capacity. the learned counsel for the claimant, on the other hand, supported the award.6. for appreciating the rival submissions, a reference to section 4(1)(c)(ii) of the act is necessary. the same reads as follows:(4) amount of compensation.-(1) subject to the provisions of this act, the amountof compensation shall be as follows, namely:(a) and (b) xxx xxx xxx(c) where permanent partial disable- (i) xxx xxx xxx ment results from the injury (ii) in the case of an injury not specified in schedule i, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.7. coming to the question of entitlement of a claimant in case there is no loss of earning and there is continuance of engagement, a reference to section 4(1)(c)(ii) of the act is necessary. the plea of employers that in case of continuance of engagement and non-reduction in earning compensation is not payable, has not found favour with the courts. as observed by the house of lords in the case of ball v.william bunt and sons ltd. 1912 ac 496, the act regarded a workman only as a wage-earner and was concerned not with any physical pain or suffering or disfigurement to which a workman might be subjected to by accident; but only with the loss of power to earn wages resulting from the injury. lord denning in fairloy v. john thomson (1973) 2 lloyd's sop 40, observed as follows:it is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. compensation for loss of future earnings is awarded for real assessable loss proved by evidence. compensation for diminution of earning capacity is awarded as part of general damages.this view has also been taken by the court of appeal, civil division, england, in moeliker v. key wile and co. ltd. 1977 acj 364 (ca, england). 'incapacity for work' is not the same thing as 'incapacity to work'. it means the loss or diminution of wage-earning capacity and it includes inability to work if that be the result of the accident. similar view has been taken by calcutta high court in the case of ram naresh singh v. lodha colliery co. (1920) ltd. 1973 lab ic 1656; sarat chatterjee & co. v. mohd. khalil 1979 acj 106 (calcutta); and the rajasthan high court in executive engineer, p.w.d. (b&r;), udaipur v. narain lal 1978 acj 163 (rajasthan). in considering loss of earning capacity in case of 'permanent partial disablement', the comparison between the wages drawn by the workman before and after the accident, from his employer at the time of the accident is not a determinative factor. if that be so, a cunning employer to tide over liability may offer a temporary employment to the claimant workman to deprive the latter his entitlements under the act. that would be against the legislative intent. this court also had occasion to deal with an almost simitar case where a plea of existing job allotment and non-reduction in wages was involved. the employer-appellant was the employer in that case. a view similar to the one taken by the above decision was taken. [see debaki swain v. executive engineer, electrical division, bhawanipatna, orissa state electricity board 1988 acj 836 (orissa)]. therefore, the plea that there being no loss in the wages, compensation could not have been awarded is not acceptable. in that view of the matter, the only plea raised by the appellant fails.there is no merit in this appeal which is accordingly dismissed.