1. This appeal, filed by the appellant-railway administration under S. 30 of Workman's Compensation Act, 1923 (hereinafter referred to as the said Act), has been placed before me by the orders of the learned Chief Justice on account of difference of opinion between two learned Judges of this Court—N.H Bhatt, and I.C Bhatt, JJ., who earlier heard this appeal in a Division Bench pursuant to an earlier order of reference of this appeal to a larger Bench. It may be stated that by coincidence, even the earlier order of reference of this appeal to a larger Bench was made by me on 6 May 1981, when I heard this appeal initially for final hearing as a single Judge.
2. A few relevant facts leading to the present proceedings may now be noted.
3. The appellant-railway administration is the employer while the respondent is its employee. The respondent suffered an employment injury while he was working in the railway establishment of the appellant at Kota. He suffered this employment injury which arose out of and in the course of his employment. It totally destroyed the vision of his left eye. The incident in question happened on 11 October 1971, when the respondent was sent for a month's training at annual territorial army camp at Kota, Rajasthan. While on duty, he was struck with a wire nail which pierced his left eye. The said injury totally blinded his left eye. At the relevant time, he was working as a pointsman in the Western Railway. According to the medical evidence, the respondent was rendered totally unfit to work as pointsman man on account of the aforesaid employment injury. He was given an alternative job as a water man.
4. Under the aforesaid circumstances, the respondent was driven to file an application being Application No. 1 of 1975, in the Court of the learned civil Judge (Senior Division) at Palanpur, who was also working as Commissioner under the Act. The respondent contended before the Commissioner that as he had suffered employment injuries which arose out of and during the course of his employment, the appellant was liable to make good the compensation as payable to him under the Act. The appellant-railway administration resisted the proceedings and contended that as the workman was sent by the railway authorities for receiving military training for one month at territorial army camp at Kota and as the accident was caused to him at that time, he cannot be said have suffered from accidental injuries as a railway servant, but on the contrary, he had suffered the said accidental injuries as an army personnel and hence, the railway administration was not bound to satisfy the claim under the said Act. It was further contended that the accidental injuries had not caused total disability to the workman and hence, he was not entitled to compensation as claimed by him. The Commissioner negatived the aforesaid contentions of the railway administration and directed it to pay compensation to the tune of Rs. 23,520 to the respondent with costs and running interest at 6 per cent from the date of compensation application till realization. The aforesaid order of the Commissioner prompted the appellant to come to this Court under S. 30 of the Act by way of the present appeal.
5. This appeal on an earlier occasion reached final hearing before me on 6 May 1981. At that time, Sri M.M Shah, learned advocate, who appeared for the appellant, raised three contentions before me in support of the appeal:
(1) The respondent at the relevant time when he received the accidental injuries was not working as a railway employee but had ceased to be a railway employee as he had joined the territorial army camp for training at Kota and consequently, the provisions of the Indian Army Act, 1950, applied in his case. Hence, the railway administration was not liable to make good the claim of compensation as put forward by the respondent.
(2) Assuming that the workman was a railway employee when he received the accidental injuries, even then, the accidental injuries had not left him with total permanent disablement and consequently the workman was at the highest entitled to compensation as per the provisions of Sch. I, Part II, item (25) or item (26) and not the full compensation as per Sch. IV of the Act.
(3) It was lastly contended that even assuming that the workman had suffered from permanent total disablement of left eye, even then as the incident had occurred on 11 October 1971, the provisions of Sch. IV of the Act as effective in 1971 had to be resorted to for computing compensation payable to the respondent and the later upward revision of rates of compensation in Sch. IV by the Workmen's Compensation Amending Act, 65 of 1976, with retrospective effect from 1 October 1975, cannot be pressed in service in the present case. That the Commissioner had patently erred in law granting compensation to the respondent or the basis of amended Sch. IV which did not apply to accidental injuries that occurred prior to the coming into force of the said amending Act.
6. Sri S.K Zaveri, learned advocate for the respondent, in his turn supported the judgment of the Commissioner.
7. Having heard the learned advocates of both the sides, by my order, dated 6 may 1981. I came to the conclusion that the first two contentions raised by Sri Shah, for the railway administration, were misconceived and were, therefore, repelled. However, so far as the third contention was concerned, in my view, the question involved was an important question of law which was required to be resolved by a larger Bench of this Court so that further, proceedings by way Letters Patent Appeal in this Court could be avoided, and the parties could be spared avoidable costs of future litigation. Consequently, I directed by my order, dated 6 May 1981, that papers of this appeal be placed before the learned Chief Justice for referring the matter to a Division Bench for decision on merits so far as the last contention raised by Sri Shah was concerned. It is, therefore, obvious that reference to the larger Bench was made only for decision of the last point regarding applicability of revised rates of compensation as per Sch. IV as amended in 1976.
8. It is thereafter that this appeal was placed under the orders of the learned Chief Justice before the Division Bench of N.H Bhatt and I.C Ban, JJ. After hearing this appeal on the aforesaid last point referred to the Division Bench for decision, N.H Bhatt, J., by his order, dated 5 May 1982, came to the conclusion that the present appeal was required to be allowed as the Commissioner had wrongly applied the revised compensation rates as found in Sch. IV of the Act to the facts of the present case as according to N.H Bhatt, J., Amending Act 65 of 1976, had no retrospective effect beyond 1 October 1975, and as the present accident had occurred on 11 October 1971, compensation had to be computed as per the old rates as mentioned in unamended schedule which applied to accidental injuries that took place in 1971; while on the other hand, I.C Bhatt, J., took the view that the Act being a beneficial piece of legislation, enhanced rates of compensation as found in Sch. IV as amended by Amending Act 65 of 1976 can be applied to compute compensation in pending proceedings like the present one as in his view, on the date on which the amending Act came into force, the compensation proceedings were not disposed of by the Commissioner but were pending on his file and consequently the Commissioner was bound to apply amended schedule of rates for computing proper compensation awardable to the injured employee who had suffered employment injuries and that the question whether employment injury was caused prior or subsequent to coming into force of the amending Act was a matter of no consequence. Therefore, I.C Bhatt. J., took the view that this appeal was liable to be dismissed. As two learned Judges of the Division Bench were divided in their opinion as stated above, papers of this appeal were once again placed before the learned Chief Justice who, as per Cl. (36) of the Letters Patent, directed that papers of this appeal be placed before me for hearing this appeal on the point on which there was division of opinion between the learned Judges constituting the Division Bench as aforesaid.
9. I have accordingly heard the learned advocates of the respective parties once again on the third point in controversy between the parties which was earlier referred by me for its resolution to a larger Bench. At this stage, Sri Bansilal Mehta, learned advocate, appeared for the appellant-rail way administration, while Sri S.K Ziveri, learned advocate, appeared for the respondent-workman.
10. The only question that requires to be considered by me now is as to whether the respondent was entitled to get compensation under the Act as per new and enhanced rates of compensation as found in Sch. IV pursuant to Amending Act 65 of 1976 or whether the appellant was liable to pay compensation to the respondent on the basis of old rates of compensation which held the field prior to application of the aforesaid amending Act.
11. In order to decide this question, it is necessary first of all to have a look at the relevant provisions of the Act in the background of certain admitted and well established facts on record. I may first refer to these relevant facts. The respondent was an employee of the railway administration on the day on which he received the accidental injuries to his left eye which totally blinded the vision of his left eye. The date of the accident is 11 October 1971. He filed the application for compensation under the Act before the Workmen's Compensation Commissioner on 1 February 1975. On the date of the accident as well as on the day on which he applied to the Commissioner, the then existing Sch. IV entitled the respondent to get compensation to the tune of Rs. 9,800 as the respondent was drawing the salary of Rs. 181 per month at the relevant time when he met with the accident and as per the rates of compensation as found in Sch. IV for permanent total disablement, an employee drawing monthly wages between Rs. 50 and Rs. 200 was entitled to get Rs. 9,800 by way of compensation for such accidental injuries. It stands well established on the record of this case that the respondent had suffered permanent total disablement of his left eye which was rendered totally useless and the percentage of his earning capacity was assessed at 100 per cent as he was declared unfit to work as pointsman and the appellant gave him alternative employment by way of waterman. Schedule IV of the Act underwent upward revision by Amending Act 65 of 1976 which came into force on 21 May 1976. By the said amending Act, rates of compensation in Sch. IV were retrospectively revised by the Legislature with effect from 1 October 1975. The application for compensation was filed by the respondent as early as on 1 February 1975. It remained pending on the file of the Commissioner till the aforesaid amending Act came into force and it is thereafter that the Commissioner decided the application of the respondent for compensation by his order, dated 30 July 1977.
12. It is now time to have a look at the relevant provisions of the Act. The Act was enacted during the regime of the then British Government as Act 8 of 1923. The preamble of the Act shows that it is an Act to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. It came into force from 1 July 1924. Section 2(e) defines “employer” to include any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him. Section 2(n) defines “workman” to include any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is—
(i) a railway servant as defined in S. 3 of the Indian Railways Act, 1890 (9 of 1890), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Sch. II; or
(ii) employed on monthly wages not exceeding one thousand rupees in any such capacity as is specified in Scb. II.
It may be noted that prior to Amending Act 65 of 1976, the only persons employed on monthly wages not exceeding Rs. 500 were covered by the definition of the term “workman” under S. 2(n)(ii). Those earning monthly wages of more than Rs. 500 were sought to be brought within the four corners of the Act by substitution of the words “one thousand rupees” for the then existing words “rupees five hundred” in the aforesaid part of definition of the word “workman,” by the aforesaid amending Act. Then follows Chap. II of the Act which deals with the topic “Workmen's Compensation”. Section 3(1) thereof is material for the present. The marginal note to the section reads; “Employer's liability for compensation.” Sub-section (1) of S. 3 provides:
“(1) If personal injury is caused to workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter.”
Section 4(1) deals with amount of compensation payable to the concerned workman for the accidental injuries received by him during the course of his employment and arising out of it. Clause (a) of S. 4(1) states:
“Subject to the provisions of this Act the amount of compensation shall be as follows, namely,—
(a) where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of Sch. IV, the amount shown against such limits in the second column thereof.”
Clause (b) of S. 4(1) provides as under:
“Where permanent total disablement results from the injury and the injured workman has been in receipt of monthly wages falling within limits shown in the first column of Sch. IV, the amount shown against such limits in the third column thereof.”
The facts of the present case squarely fall within the four corners of Cl. (b) of Sub-sec. (1) of S. 4 as the respondent has been visited with permanent total disablement on account of blindness of his left eye as a result of the employment injury. The controversy between the parties centres round the computation of compensation payable to the respondent as per the figures mentioned in Sch. IV. If the unamended schedule which held the field in 1971 applies, the respondent can get only Rs. 9,800 but if the amended schedule applies, he would get Rs. 23,520 as decreed by the Commissioner.
13. Section 4-A deals with the question as to when due compensation has to be paid by the employer to the concerned injured employee and/or his heirs. It also deals with a situation where employer would become liable to undergo penalty for default in payment of due compensation. Subsection (1) of S. 4-A provides that compensation under S. 4 shall be paid as soon as it falls due. A combined reading of Ss. 3(1), 4(1) and 4-A (1), therefore, clearly indicates that injured workman becomes entitled to compensation as per the Act moment he suffers personal injuries of the types contemplated by these provisions. Thus the right of the injured employee or his heirs to receive compensation gets crystallized moment personal injury takes place. The corresponding liability of the employer to make good this liability also springs forth simultaneously and the said liability has to be computed as per the relevant clause of S. 4(1). In the present case, the accident took place on 11 October 1971, as seen earlier. On that day, the appellant became liable to pay compensation to the respondent as per the provisions of Sch. IV which were then holding the Held. The liability of the appellant under these circumstances got crystallized at the figure of Rs. 9,800 as already shown above. It is the contention of the respondent that because his compensation application was not disposed of by the Commissioner and in the meantime amending Act came into force benefit brought by the amending Act by way of upward revision of the rates of compensation must be made available to him. Whether the aforesaid contention canvassed on behalf of the respondent is well sustained or not is also to be decided in the light of the remaining provisions of the Act.
14. Section 4-A(2) lays down as under:
“In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.”
Sub-section (3) of S. 4-A provides:
“Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of 6 per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding 50 per cent of such amount, shall be recovered from the employer by way of penalty.”
The next relevant provision is S. 8 which deals with distribution of compensation by employer. Sub-section (1) of S. 8 provides as under:
“No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lumpsum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation not exceeding an aggregate of one hundred rupees, and so much of such aggregate as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.”
Sub-section (2) of S. 8 lays down as under:
“Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.”
Then follows Sub-sec. (3) of S. 8 which states:
“The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.”
Next relevant provision is S. 10 of the Act. Sub-section (1) thereof provides:
“(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or in case of death, within two years from the date of death:
Provided that where the accident is the contracting of a discease in respect of which the provisions of Sub-sec. (2) of S. 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the discease.”
Section 10-A deals with powers to require from employer's statements regarding fatal accidents. Sub-section (1) of S. 10-A provides:
“(1) Where a Commissioner receives information from any source that a workman has died as a result of an accident arising out of and in the course of his employment, he may send by registered post a notice to the workman's employer requiring him to submit, within thirty days of the service of the notice, a statement, in the prescribed form, giving the circumstances attending the death of the workman, and indicating whether, in the opinion of the workman, and indicating whether, in the opinion of the employer he is or is not liable to deposit compensation on account of the death.”
Sub-section (2) thereof provides:
“If the employer is of opinion that he is liable to deposit compensation, he shall make the deposit within thirty days of the notice.”
Sub-section (3) thereof provides:
“If the employer is of opinion that he is not liable to deposit compensation, he shall in his statement indicate the grounds on which he disclaims liability.”
The next batch of relevant sections is found in Chap. III dealing with the Commissioner. Section 19(i) is the first section in the chapter. It provides:
“(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner.”
Section 19(2) excludes the jurisdiction of the civil Courts in connexion with any question which is by or under by this Act is required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under the present Act. Section 22 deals with the form of application for compensation. Sub-section (1) states:
“(1) No application for the settlement of any matter by a Commissioner other than an application by a dependant or dependants for compensation shall be made unless and until some question has arisen between the parties in connexion there with which they have been unable to settle by agreement.”
Sub-section (2) of S. 22 states:
“An application to a Commissioner may be made in such form and shall be accompanied by such fee, if any, as may be prescribed, and shall contain, in addition to any particulars which may be prescribed, the following particulars, namely,—
(a) a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims;
(b) in the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer and if such notice has not been served or has not been served in due time, the reason for such omission;
(c) the names and addresses of the parties; and
(d) except in the case of an application by dependants for compensation a concise statement of the matters on which agreement has and of those on which agreement has not been come to.”
15. The aforesaid are the relevant provisions of the Act. They clearly indicate that it is the receipt of the accidental injury that brings into limelight simultaneously a right in the injured workman or his dependants to claim compensation as laid down by the Act and the corresponding liability of the employer to meet such a claim. As an ideal state of affairs, the concerned employer is expected to pay compensation as soon as it falls due as laid down by S. 4-A(1). It cannot be gainsaid that a claim falls due moment the concerned workman receives employment injury. Thus, it is at the time he receives employment injury that he becomes entitled to claim compensation from his employer who in his turn becomes liable to meet the claim. Thus, the right of the injured workman to claim compensation and the corresponding liability to meet the claim become operative at the same point of time, viz., the time at which the employment injury is received by a workman. Schedule IV of the Act lays down in a tabular form various rates of compensation payable to a workman who received employment injury. The said tabular form prescribes sliding rates of compensation in the light of different wage-scales in which the injured workmen may be working at the relevant time and the nature of injuries suffered by them, viz., whether injury results in death or permanent total disablement or results in temporary disablement, as the case may be. If employer fails to discharge his obligation to pay compensation moment it becomes due, as per S. 4-A(3), the employer becomes liable to pay compensation with 6 per cent interest on the amount due as directed by the Commissioner on the expiry of one month from the date the compensation fell due till its payment and the employer also becomes liable to pay penalty interest at 50 per cent on the compensation amount if the Commissioner finds that there was no justification on the part of the employer to delay payment of compensation as and when it fell due. These provisions also indicate that liability of the employer gets crystallized on the day on which accident injuries are suffered by the concerned workman. The computation of liability, therefore, has to be made in the light of the existing rates of compensation as found in Sch. IV at the time when the accidental injuries take place. If employer fails to discharge his obligation to pay compensation as per the Act, he becomes liable to be proceeded against before the Commissioner. Sections 10-A(1) to 10-A(3) read with Ss. 19(1) and 22 also indicate that the liability of employer gets crystallized on the date of the accident to the concerned workman and the employer is required to meet the said liability as per the procedure and time schedule laid down in these provisions. In fact various statutory provisions of the Act to which I have referred represent a well knit scheme regulating the rights and liabilities of injured workmen and their employers respectively, fulcrum round the occurrence of the accident on a given date. As indicated by S. 10(1), such application for compensation can be filed before the Commissioner, within two years from the date of occurrence of the accident or the death, as the case may be. Even which such applications are filed within limitation, computation of compensation has to be made by the Commissioner with reference to the date on which the Act foisted the liability on the employer to pay compensation and created corresponding right in the employee to receive this compensation. If merely because the Commissioner takes some time to decide the application and in the meantime, the rates of compensation as mentioned in Sch. IV got revised upward ipso facto, it cannot be said that they become applicable to pending proceedings unless the amending Act shows a different legislative intention. It is in the context of the aforesaid statutory provisions that one has to turn to the provisions of the amending Act with a view to finding out the scope and effect of the same. It goes without saying that with the rise in prices and with the consistent fall in the purchasing power of money, grant of compensation as fixed under the statute would require upward revision from to time to make compensation amount realistic and in consonance with the needs in the changed situations. Schedule IV of the Act which lays down various rates of compensation payable to injured workmen as provided by S. 4 has undergone various upward revisions by legislative amendments from time to time. By amending Act 64 of 1962, the Parliament revised upward the then existing rates of compensation found in Sch. IV by S. 12 of the amending Act with effect from 1 February 1963. Even then, amended rates were required to be further revised upwards in 1976, and consequently, the Parliament again amended the said schedule by Act 65 of 1976. The relevant provisions of the Workmen's Compensation Amending Act 65 of 1976, are required to be noted in extenso at this stage. They read as under:
“1. Short title and commencement.—(1) This Act may be called the Workmen's Compensation (Amendment) Act 1976.
(2) Sections 2 and 4 shall be deemed to have come into force on 1 October 1975, and the remaining provisions shall come into force at once.
2. Amendment of S. 2.— In S. 2 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the principal Act), in Sub-sec. (1), in Sub-Cl. (ii) of Cl. (a), for the words ‘five hundred rupees,’ the words ‘one thousand rupes’ shall be substituted.
Amendment of S. 36.— In S. 36 of the principal Act, for the words ‘two successive sessions,’ and if before the expiry of the session in which it is so laid or the ‘sessions immediately following,’ the words ‘two or more successive sessions, and before the expiry of the session immediately following the session or the successive sessions aforesaid’ shall be substituted.
4. Substitution of new schedule for Sch. IV.—For Sch. IV to the principal Act, the following schedule shall be substituted, namely:
SCHEDULE IV
(See S. 4)
Compensation payable in certain cases
Monthly wages of the workman injured
Amount of competition for death
Permanent total disablement
Half-monthly payment as compensation for temporary disablement
More than
But not more than
Rs.
Rs.
Rs.
Rs.
Rs.
P.
150
200
16,800
23,320
60.00
—”
A mere look at the aforesaid provisions of the amending Act shows that the Legislature in its wisdom has thought it at to retrospectively apply revised rates of compensation as found in Sch. IV, from 1 October 1975, even though the amending Act came into force from 21 May 1976. Sections 2 and 4 of the amending Act are deemed to have come into force from 1 October 1975, I have already referred to definition of the term “workman” as found in S. 2(n) of the Act. Section 2 of the amending Act seeks to retrospectively amend the said definition by extending the coverage of the Act to workmen having salary of more than Rs. 500 up to Rs. 1,000 retrospectively from 1 October 1975. Similarly, S. 4 of the amending Act seeks to amend Sch. IV and introduces enhanced rates of compensation retrospectively from 1 October 1975. In view of the aforesaid scheme of the amending Act, it is no doubt certain that Legislature for reasons best known to it has thought it fit to amend Sch. IV retrospectively only from 1 October 1975. Consequently, those accidental injuries which are suffered by the workman from 1 October 1975, onwards will have to be compensated for as per the provisions of the amended Sch. IV revising upward the rates of compensation pursuant to the Amending Act 65 of 1976. But unfortunately for the respondent in the present case, the accidental injuries suffered by him on his left eye saw the light of the day much prior to 1 October 1975, precisely on 11 October 1971. Mere fact that his application for compensation was not disposed of by the Commissioner expeditiously and it remained pending on his file, cannot be a good ground for applying amended Sch. IV for computing compensation in his case. When the Legislature has made the said amendment to the schedule retrospectively only from 1 October 1975, by no process of interpretation, the Court can make it more retrospective. Realizing this difficulty, Sri Zaveri, for the respondent, strongly contended that he does not canvass the proposition that enhanced rate as per amending Sch. IV brought into force by the Amending Act 65 of 1976, retrospectively from 1 October 1976, should be treated to have further retrospective effect so as to apply to cases of injuries suffered by workmen prior to 1 October 1975. But his contention is a limited one, viz., that if the compensation applications for such earlier injuries by some chance are not disposed of by the time amending Act was brought on the statute book that is on 21 May 1976, then, in such cases, by application of law of the forum, i.e, lex fori, the Court can look at the amended Sch. IV for giving just compensation to the injured workman. He contended that this would not amount to giving retrospective effect to the amending provision, but it would amount to giving a retro-active effect only. He made it clear that it is not his contention that amended provision of Sch. IV would apply to all applications for compensation which were pending on 1 October 1975, from which date, Sch. IV amendment is expressly made retrospective by the Legislature, but the said amendment will apply to those applications which were pending on 21 May 1976, the date on which the amending Act was brought on the statute book. He further contended that if an application for compensation regarding old injuries suffered by a workman prior to 1 October 1975, had got disposed of before 21 May 1976, the concerned Commissioner could not have applied the amended provisions of Sch. IV which were enacted for the first time on 21 May 1976. But those applications for compensation pertaining to such injuries which by good chance had remained pending on 21 May 1976, could certainly be given the benefit of amended Sch. IV on the principle of retro-active rather than retrospective operation of the amending Act.
16. The aforesaid contention of Sri Zaveri, if accepted, would result in the following situations:
(1) in cases of accidental injuries suffered by a workman prior to 1 October 1975—
(a) if adjudication of compensation proceedings before the Commissioner takes place prior to 21 May 1976, old Sch. IV prior to amendment, would apply;
(b) if adjudication of compensation applications, in connexion with such accidents that have occurred prior to 1 October 1975, have not been made prior to 21 May 1976, and such applications are pending on that day, then computation of compensation for such accidents that have occurred prior to 1 October 1975, could be made according to the new rates of compensation as per amended Sch. IV
2. In cases of accidents that take place after 1 October 1975, whether adjudication of those claims is made by the Commissioner prior to 21 May 1976, or subsequent thereto, in either case application of new rates of Sch. IV as amended will get attracted.
17. According to Sri Zaveri, the cases contemplated by the second category can be said to be covered by the retrospective operation of the amending Act as expressly provided by the Legislature. But so far as cases covered by the first category are concerned, application of amended Sch. IV to those cases which fall within category (1)(b) cannot be said to be the result of retrospective operation of the amending Act, but would amount to giving retro-active effect to the same on the principle lex fori that is—law binding on the adjudicating authority at the time when adjudication is being made.
18. As I will show presently, the aforesaid submission of Sri Zaveri for the respondent and the effort made by him to channelize the operation of the amending Act into the aforesaid varieties of cases does not bear scrutiny.
19. It is now well settled by a series of judgments of the Supreme Court pertaining to interpretation of statutes that the cardinal principle of construction is that every statute is prima facie to be treated as prospective unless it is expressly or by necessary implication made to have retrospective operation. The rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless, there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only vide A.I.R 1951 S.C 128 at 130 : A.I.R 1960 S.C 936 at 939 and A.I.R 1970 S.C 703 at 705. It is also useful to have a look at Osborn's Concise Law Dictionary on the point. It is stated therein that nova constitutio futuris for mam imponere debet non oraetarltis, meaning thereby, a new law ought to regulate what is to follow, not the past. It is also well settled that the provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. In this connexion, it would be profitable to refer to the observations of Lord Blanesburg in Re Palborough Parish School Board Election, Bourke v. Nutt [(1894) 1 Q.B 725 at 937].
Therein, it has been observed as under:
“Every statute, it has been said, observed Lopes, L.J:
‘which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect.” It is equally well settled that as a logical corollary of the general rule, retrospective operation is not taken to be intended unless that intention is mainfested by express words or necessary implication. There is a subordinate rule to the effect that a statute or a section is not to be construed so as to have larger retrospective operation than its language renders necessary. In this connexion, it would be useful to refer to the decision of the Supreme Court in Ahmedabad Manufacturing and Calico Printing Company, Ltd. v. S.C Mehta [A.I.R 19???3 S.C 1436], Hidayatullah, J., speaking for majority of the Court made the following pertinent observations on the question of retrospective operation of an Act:
“Under ordinary circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the date of the commencement of the Act. But this rule is not unalterable. The Legislature may affect substantial rights by enacting laws which are expressly retrospective or by using language which has that necessary result. And this language may give an enactment more retrospectively than what the commencement clause gives to any of its provisions. When this happens the provisions thus made retrospective, expressly or by necessary intendment, operate from a date earlier than the date of commencement and affect rights which, but for such operation, would have continued undisturbed.”
In the present case, such a situation has squarely arisen. Amending Act 65 of 1976 as per its express language made the provisions of the amended Sch. IV operative retrospectively from 1 October 1975. Consequently, it is not open to the Court, by any process of judicial interpretation, to make it more retrospective than what the Legislature in its wisdom thought it fit to do. It Sri Zaven's contention is accepted, the amended Sch. IV will nave to be applied to computation of compensation in connexion with accidental injuries suffered even prior to 1 October 1975. It is a mere accident that applications for compensation in such cases might have remained undisposed of on the file of the Commissioner. But that fortuitous circumstance cannot change the express language of the amending statute and cannot by itself enable the Courts to apply the amending provisions more retrospectively than what Legislature wants them to do. The nice distinction sought to be drawn by Sri Zaveri between the retrospective and retro-active provisions of the amending Act on the ground of lex fori pales into in significance once the express legislative intention reflected by the amending Act is kept in view. If the Legislature seeks to apply retrospectively the amended Sch. IV from 1 October 1975 only, how can the Court apply it to accidents which have taken place even prior to 1 October 1975 only on the specious plea that workmen's compensation application in connexion with such accidental injuries have accidentally remained pending on the file of the Commissioner on 21 May 1976 when the amending Act saw the light of the day? With respect, such an attempt on the part of the Court as canvassed by Sri Zaveri would require the Court to become more catholic than the Pope himself. Such an attempt, therefore, is clearly contra-indicated by the express language of the amending Act making the amended Sch. IV rates retrospective only from 1 October 1975, and not from any date prior thereto, if Sri Zave is contention is to be accepted, S. 1, Sub-sec. (2) of the Amending Act 65 of 1976, will have to be rewritten by making it fully retrospective. It is not open to the Court to undertake such an exercise.
20. I.C Bhatt, J., in his dissenting view has opined that all proceedings pending on 1 October 1975, and seeking adjudication of compensation for accidental injuries will have to be decided in the light of the amended schedule With respect, the said line of reasoning is contra-indicated by the well-established rules of construction. It is now well settled that a statute which affects rights in existence is not readily construed to affect adjudication of pending proceedings vide A.I.R 1941 F.C 16 at 47. In this connexion, I may profitably refer to the observations of S.R Das, J., in Garikamati v. Subhniah Choudhry [A.I.R 1957 S.C 540 at 553]:
“The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altrering the law applicable to a claim in litigation at the time when the Act was passed.”
In the present case, the Legislature has expressly made amending provision of Sch. IV applicable retrospectively from 1 October 1975. Thus, all pending proceedings pertaining to accidental injuries suffered by injured workmen from 1 October 1975, onward would obviously be covered by the amending Act. To make the amending provisions apply to pending proceedings with respect to compensation claims in connexion with the injuries suffered by workmen prior to 1 October 1975, would obviously amount to making amending provision more retrospective than what the Legislature intends to do. Such an attempt, with respect, would amount to legislation in the guise of judicial interpretation. It is a forbidden field for the Court consequently, however, laudable may be the object underlying the scheme of enhanced rates of compensation to be made payable to injured workmen and, however, beneficial may be the said provision it is, not open to the Court to so construe these provisions as to make them apply to cases which are not intended to be covered in their net work by the Legislature in its wisdom. At the highest, it would be a case for giving more retrospective effect to the amended schedules by further legislative amendment.
21. It may now refer to a few decisions to which my attention was invited by Sri B.S Mehta, learned advocate for the appellant. In A.C Sharma v. Delhi Administration [(1973) 1 SCC 726 : A.I.R 1973 S.C 913], it has been laid down as under:
“Legislature cannot be presumed to have intended to make any substantial alteration in the existing law beyond what it expressly declares.”
In Central Bank of India v. Their workmen [A.I.R 1960 S.C 12], the Constitution Bench of the Supreme Court laid down on the interpretation of statutes as under:
“For modern purposes, a declaratory Act may be defined as an Act to remove doubts existing as to the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error in the interpretation of statute. Usually, if not invariably, such an Act contains a preamble, and also the word ‘declared’ as well as the word ‘enacted.’ A remedial Act, on the contrary, is not necessarily retrospective 3 it may be either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment.”
22. Sri Mehta rightly submitted that amendment to Sch. IV of the Act is a remedial provision which seeks to remedy the grievances of the injured workmen whose compensation amount may have fallen in real value because of the fall in purchasing power of money. As it is a remedial statute, its retrospectivity has to be gathered from the four corners of the amending Act and cannot be stretched any further by judicial interpretation. In Arjan Singh v. State of Punjab [A.I.R 1970 S.C 703], the Supreme Court observed:
“It is a well-settled rule of construction that no provision in a statute should be given retrospective effect unless the Legislature by express terms or by necessary implication has made it retrospective and that where a provision is made retrospective, care should be taken not to extend its retrospective effect beyond what was intended.”
23. The aforesaid decisions of the Supreme Court clearly indicate the contours of the Court's jurisdiction in interpreting an amending statute. In the present case, as already discussed earlier, the amending statute makes the provisions of revised Sch. IV applicable retrospectively from 1 October 1975. By no stretch of imagination, they can be further, projected in the past to cover claims for compensation in connexion with accidental injuries suffered by the workman prior to 1 October 1975, whether the applications for compensation in such cases were pending or not on the day on which the amending Act came into force.
24. I may at this stage note one additional submission raised by Sri R.A Mehta, learned advocate, who appeared as intervener in the present case and who supported the contentions canvassed by Sri Zaveri, for the respondent. He invited my attention to the provisions of the Employees' State Insurance Act, 1948. Section 43 thereof provides for method of payment of contribution and states that:
“Subject to the provisions of the Act, the Corporation may make regulations for any matter relating or incidental to the payment and collection of contributions payable under this Act…”
Section 51 thereof deals with disablement benefit and states:
“Subject to the provisions of this Act, and the regulations, if any—
(a) a person who sustains temporary, disablement for not less than three days (excluding the day of accident) shall be entitled to periodical payment for the period of such disablement in accordance with the provisions of the First Schedule.”
Section 52 deals with dependants' benefit and states;
“If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependant's benefit shall be payable in accordance with the provisions of the First Schedule to his dependants specified in Sub-cls. (i) and (ii) of Cl. (6-A) of S. 2.”
Sri Mehta then invited my attention to the First Schedule to the said Act according to which dependency benefits are to be paid. He then took me to the amending Act 44 of 1966 by which various provisions of the Employees' State Insurance Act were amended and the rates of disablement benefits were revised upwards. Section 43 of the said amending Act was specially highlighted by Sri Mehta. It is, therefore, necessary to extract it in extenso as under:
“No provisions of this Act shall apply to and in relation to any payment which has been, or is being, or is required to be, made under the principal Act in respect of any employment injury sustained by an employee in any State or part thereof at any time before the date of the coming into operation of that provision and any such payment and any application, appeal or other proceeding for or relating to such payment pending before any authority immediately before such date shall continue to be governed by the provisions of the principal Act as they stood immediately before that date.”
He submitted that when the Legislature desired not to touch any pending proceedings in connexion with payment of benefits to the concerned employees, the provisions like S. 43 have been enacted. But there is no such provision in the Workmen's Compensation Amending Act, 65 of 1976, Therefore, the said amending Act represents a different legislative intention. The aforesaid analogy tried to be drawn by Sri Mehta from the provisions of S. 43 of the amending Act 44 of 1966 by which the Employees' State Insurance Act was amended cannot be of much assistance to him for the simple reason that amending Act 44 of 1956 was intended to be applied purely prospectively, so far as the Employees' State Insurance Act was concerned. Therefore, the provision like S. 43 by way of abundant caution was incorporated to avoid any doubt or confusion. But so far as the present Amending Act 65 of 1976 is concerned, it had provided for retrospective operation of two provisions, viz., the amended definition of the term “workman” under S. 2(n) as well as the amended Sch. IV from 1 October 1975. Consequently, provisions like S. 43 as found in the amending Act to the Employees' State Insurance Act could not have been engrafted in the present amending Act as that would have conflicted with the legislative intention to make the aforesaid two provisions retrospective to a limited extent. This is precisely why provisions like S. 43 are not found in the present amending Act. However, one fact clearly emerges even from the comparison which Sri Mehta wanted to have with amending Act 44 of 1966. As fresh liabilities were sought to be created and fresh obligations were to be foisted by the amending Act, the Legislature advisedly made it purely prospective even though the Employees' State Insurance Act also is a beneficial legislation providing benefits to insured injured employees. The present Act also operates in the same field and is also a beneficial legislation. In case of Workmen's Compensation Act, however, the Legislature while enacting Amending Act 65 of 1976, made it retrospective to a limited extent as indicated therein. But, the matter must rest there. It would not be in the domain of the Court to tinker with the express legislative intention about the retrospective operation of the amended Sch. IV as enacted by the amending Act.
25. The aforesaid discussion, therefore, leaves no room for doubt that amended Sch. IV cannot be made applicable to injuries suffered by a workman prior to 1 October 1973. If the contention of Sri Zaveri is accepted, startling results would follow. I may briefly indicate the same at this stage. As per S. 4-A(1), the employer becomes liable to pay compensation as it falls due, i.e, when accidental injuries take place. Under S. 4-A(2), employer is expected to make provisional payment even to the extent of his liability which he accepts. Under S. 4-A(3), if the employer does not make any payment within one month from the date it fell due, the Commissioner can direct employer to pay 6 per cent interest on the amount due together with even penal interest of 50 per cent of the said amount if there was no justification for delay on the part of the employer. In the present case, the accident has occurred on 11 October 1971. Looking to the nature of permanent total disablement suffered by the respondent who was then getting wages of Rs. 181 per month, as per the Fourth Schedule then existing, the respondent became entitled to receive compensation to the tune of Rs. 9,100. If the appellant had paid this amount, nothing would have survived. Because the appellant did not pay up this amount nor did it make provisional payment as per S. 4 A(3), the appellant became liable to pay 6 per cent interest after one month from the date the amount fell due, i.e, after one month from the date of the accident, meaning thereby, from 11 November 1971. The Commissioner could have also awarded penal interest at the rate of 50 percent of Rs. 9,800, the amount which was due, if it was held that the amount was unreasonably withheld by the appellant. Thus, appellant's statutory liability to pay interest and even penal interest got crystallized with dereference to the figure of Rs. 9,800 which worked out at the relevant time in the closing months of 1971. Now, only because the Commissioner did not dispose of the compensation claim application of the respondent for a number of years and by 21 May 1976, amending Act came into force, if Sri Zaveri's contention is accepted, the appellant would be liable to pay compensation to the tune of Rs. 23,500 as per amended Sch. IV. If that is so, on what amount will interest, ordinary and penal, be computed under S. 4-A(3)? As per the expressed provisions of the said section liability of the employer to pay 6 per cent interest on the amount due would start from 11 November 1971, and that liability would get crystallized qua Rs. 9,809. Even liability to pay penal interest in a given case to the extent of 30 per cent of Rs. 9,800 would also flow from Sub-sec. (3) of S. 4-A. If Rs. 93, 520 are to be substituted retrospectively for Rs. 9,800 the entire working of Ss. 4-A(1) and 4-A(3) read with Ss. 3(1) and 3(4) of the Act would be rendered incongruous and otiose. It is impossible to read the express language contained in S. 4-A(3) to mean “any amount that may be awarded by the Commissioner in future” in the place and stead of the words “such amount” as mentioned in Ss. 4-A(1) and 4-A(3). Thus, the entire well knit scheme of the Act would get frustrated and become unworkable if Sri Zaveri's contention is accepted and if Sch. IV is applied retrospectively to cover claims for compensation for accidental injuries that might have taken place prior to 1 October 1975. A conjoint working of Ss. 10-A (1) to 10-A (3), 19(1) and 22 also would get disrupted in the process. It is true that all accidental injures that might have taken place from 1 October 1975 onwards would get covered by the retrospective sweep of the amending Act. Consequently, Ss. 4-A(1), 3(1) and 4(1) and other relevant provisions of the Act can easily be read in the light of the retrospectively amended provisions of Sch. IV so far as compensation liabilities for such injuries are concerned. But for injuries prior to 1 October 1975, entire scheme of the Act as existing at the relevant time the accident took place has to be the only guiding factor. I asked a pointed question to Sri Ziveri to the effect that if the appellant had paid Rs. 9,800 to the workman without any contest in 1971, could the workman have initiated proceedings for compensation for recovery of any larger amount merely on the basis of future amendment to Sch. IV? He fairly stated that it would have been impossible for the workman to do so. But his contention is that because the workman's compensation case lingered on the files of the Commissioner and by the time it could get disposed of, the amending Act intervened, the injured workman could get the benefit thereof. If the Legislature had expressly made such benefit available to the workman retrospectively, there would have been no problem. But unfortunately for the respondent, the legislative intention is contra-indicated by the express language of the amending Act, Consequently, however sympathetic the Court may be towards the claim of the injured workman, it would be impossible for the Court to travel beyond the well defined contours of the legislative intendment and to that extent, the Court will feel helpless.
26. Now is the time to refer to two decisions on which Sri Zaveri placed strong reliance in support of his contentions. He firstly invited my attention to a decision of the Maharashtra High Court in Kasturbai Ratanchand Gandhi (Smt.) v. S.S Badole [1974 — I L.L.N 195], decided by Vaidya, J. In that case, a cleaner of a motor truck who was a workman had received fatal injuries on account of an employment accident on 15 April 1962. His widow and minor children filed compensation case before the Commissioner on 24 March 1964. On the day on which the accident happened, Sch. IV was unamended. But by the time the application came to be filed, Sch. IV got revised upward with effect from 1 February 1963, by the earlier amending Act 64 of 1962, noted by me earlier. The question was whether amending provisions of the schedule could be pressed in service by the heirs and legal representatives of the deceased workman. Answering this question in favour of the claimants, Vaidya, J., made the following observations in Para, 6, at page 197:
“… The question as to what compensation should be awarded by the Court under S. 4 is regulated by Sch. IV and S. 4 of the Workmen's Compensation Act, 1923…”
Having noticed Ss. 4(1) and 3(1), the learned Judge observed in Para. 6, at page 197 of 1974—I L.L.N that:
“… The respondent had no vested right in paying the lesser compensation under S. 3 or under S. 4 under the old schedule. The question as to what compensation is to be given is essentially a question arising under lex fori. It is for the Court granting compensation to determine as to what compensation is to be given. No party can have a vested right when such a right is vested in the adjudicating authorities.”
It is true that the aforesaid view directly supports the proposition canvassed by Sri Zaveri. But unfortunately for him, it becomes obvious that Vaidya, J., had not noticed S. 4-A(1) of the Act which was brought on the statute book by amending Act 8 of 1959, with effect from 1 June 1959. Under that provision, it is expressly stated that compensation under S. 4 shall be paid as soon as it falls due. If that provision was noticed of Vaidya, J., in all probability, his conclusion would have been different. Under the scheme of the Act, an employer becomes liable to pay compensation as and when it falls due and it falls due as and when an accident takes place. The entire scheme of the Act was not noticed by Vaidya, J., and consequently, the observations of Vaidya, J., with respect, do not reflect the correct legal position. Vaidya, J., has also not noted the well-settled principles of construction of statutes. He had also not the benefit of referring to various Supreme Court judgments on the point which have taken the view that in case of vested rights, no retrospective effect can be given to the amending provision, unless the Legislature has expressly or by necessary intendment, permitted it to be done. It is not possible to agree with Vaidya, J., that by lex fori, i.e, law applicable to the Court, amending schedule would automatically apply to the proceedings before the Commissioner when he takes up the matter for adjudication. Even though the Commissioner has to apply available law on the point, he has got to consider whether he can apply amended schedule to poses of compensation for injuries suffered by the workmen prior to coming into force of the amending Act. If it is found that it is not possible to apply these amended provisions almost automatically and when there is no legislative intention express or implied to that effect flowing from the amending statute, lex fori applicable to the such proceedings would be the unamended schedule. There is nothing special about the law of forum which adjudicates the proceedings as assumed by Vaidya, J. The law of forum has to be gathered from the language of the statute, which is to be applied and from surrounding circumstances Consequently, it is not possible to agree with the reasoning adopted by Vaidya, J., in the aforesaid decision. It is also pertinent to note at this stage that attention of Vaidya, J., was also not invited to an earlier decision of the Maharashtra High Court in Margarida Gomes v. Mackinon Mackenzie [A.I.R 1968 Bom. 328], wherein, Patel, J., had an occasion to consider the scope and ambit of various provisions of the Act in connexion with the question as to whether workmen's compensation claim application would get abated on the death of the injured workman pending the proceedings. While deciding the said question in favour of the heirs and legal representatives of the deceased workmen, Patel, J., analyzed the scheme of the Workmen's Compensation Act especially S. 4-A thereof and made the following pertinent observations:
“The question must depend, in the first instance, upon the terms of the Act itself. Prior to the passing of the Act, a workman who suffered injury had no remedy except when he could justify the claim for damages on the ground of tort. By the Workmen's Compensation Act, he became statutorily entitled for compensation for injury and death under S. 3, if he was a workman and if ‘accident arose, out of and in the course of his employment.’ By the same section, his employer became liable to pay compensation in accordance with the provisions of Chap. II of the Act, except in the excepted cases. Section 4(1) prescribes the amount of compensation which is calculated on the basis of his monthly wages as in Sch. IV. In the cases of total disablement, in cases falling within Sch. 1, proportionately to the loss of earning capacity in accordance with the prescribed percentage of loss in that schedule and in other cases not specified in Sch. I, proportion to the loss of his earning capacity
Section 4-A provided that the compensation under S. 4 shall be paid as soon as it falls due. This means that the payment of compensation is not dependent upon the determination of the same by the Court or on its discretion. But it must be pad immediately it falls due. By Sub-sec. (2) even if the employer disputes the amount he is bound to make provisional payment on the basis of the extent of the liability he admits, and by Sub-sec. (3) it is provided that if the employer is in default in paying the amount within one month from the date it falls due, the Commissioner may direct simple interest at the rate of 6 per cent per annum together with a sum not exceeding 50 per cent by way of penalty if the Commissioner finds that there was no justification for the delay. Examination of S. 11 indicates that even where the workman has suffered injury by accident and is entitled to compensation, his right to compensation is suspended under Sub-sec. (2) of that section because of his refusal to submit to medical examination, if he dies without his medical his examination having been done, his dependants may be able to obtain the same. Even if an employer transfers his assets before making payment of the amount due when the liability has accrued before the date of the transfer, S. 14-A creates a first charge on the transferred assets.
I am clear, therefore, on the provisions of this Act that the liability in the case is created immediately on the accident occurring to the workman suffering injury and must amount to a debt payable to the workman.”
Sri Patel. J., has also referred to series of judgments of English Courts and other High Courts in coming to his conclusion that liability to pay compensation under the said Act is a debt payable to the workman and becomes payable moment the workman suffers such injury. Unfortunately, this judgment of the Maharashtra High Court was not cited before Vaidya, J. Hence his observations in the decision in Kasturbhai case [1974—1 L.L.N 195] (vide supra), are not based on a detailed scrutiny of all the relevant provisions of the Act and the relevant decisions on the point. It is, therefore, not possible for me to agree with the view taken by Vaidya, J., in the aforesaid decision. On the contrary, I entirely endorse the reasoning of Patel, J., in Margarida case [A.I.R 1968 Bom. 382] (vide supra), as the said reasoning is fully borne out from the relevant provisions of the Act.
27. Sri Zaveri then invited my attention to the decision of the Supreme Court in Rustom and Hornsby (India), Ltd. v. Kadam (T.B) [1975—II L.L.N 254] as also to another decision in Chemicals and Fibres of India, Ltd. v. Bhoir (D.G) [1975 — II L.L.N 1]. Both these decisions turn on the applicability of S. 2-A of the Industrial Disputes Act, 1947, to references regarding industrial dispute made under the Act. In Rustom case (vide supra), the facts were that on the day on which reference was made under S. 10 read with S. 2-A of the Industrial Disputes Act, an industrial dispute, as defined under S. 2-A did exist. It was held therein that merely because the facts giving rise to the dispute falling under S. 2-A arose before that section came into force would not make the reference invalid. In such a case, it was observed there is no question of giving retrospective effect to S. 2-A. Section 2-A is a definition section and when it uses the words
“where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman”
it does not deal with the question as to when that was done. It refers to a situation or a state of affairs. It is difficult to appreciate how the aforesaid decision can be of any assistance to Sri Zaveri. It should be noted that in the facts of Rustom case (vide supra), there was already a pending industrial dispute between the workman and the employer-company. All that S. 2-A did was to enable an individual workman to raise an industrial dispute and to provide that what would not be an industrial dispute as defined by S. 2(11) would be deemed to be an industrial dispute in certain circumstances. In the case before the Supreme Court, the workman was dismissed on 7 January 1964. Section 2-A of the Industrial Disputes Act came into force on 1 December 1965 and on 23 June 1967, a reference was made by the State Government regarding dismissal of the workman to the Labour Court. It was urged on behalf of the company before the Supreme Court that the reference was bad because the workman was dismissed prior to coming into force of S. 2-A of the Industrial Disputes Act and consequently, the reference itself was incompetent as the reference was made after coming into force of S. 2-A. The Supreme Court turned down the aforesaid contention of the employer. It was in terms stated that there was no question of giving retrospective effect to S. 2-A. Section 2-A referred to a fact situation which did exist at the time when the industrial reference came to be made by the Government. Consequently, the said reference was held to be competent. Amendment to Sch. IV in the present case is not an amendment made to any definition clause. It on the contrary makes a substantial amendment and creates new rates of compensation and new obligations. Consequently, it cannot be made more retrospective than what the Legislature has expressly desired to do. The decision of the Supreme Court in the above case, therefore, cannot be of any assistance to Sri Zaveri.
28. Same is the situation with reference to the decision of the Supreme Court in Chemicals and Fibres case [1975 — II L.L.N 1] (vide supra). The Supreme Court has analyzed in the said decision the scope and ambit of S. 2-A of the Industrial Disputes Act and has observed as under in Para. 2, at page 3:
“… In enacting S. 2-A the intention of the Legislature was that an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated should be given relief without its being necessary for the relationship between the employer and the whole body of employees being attracted to that dispute and the dispute becoming a generalized one between labour on the one hand the employer on the other.…”
The said decision on the scope of S. 2-A of the Industrial Disputes Act has no relevance whatsoever to the facts of the present case and cannot be of any assistance to Sri Zaveri in support of his contention regarding applicability of amended Sch. IV to the proceedings before the Commissioner in the present case.
29. Before parting with the discussion on the point I may turn to a decision of the Orissa High Court in Oriental Fire and General Insurance Company, Ltd. v. Bidi [1972 A.C.J 187], B.K Patra, J., of the Orissa High Court had to consider the question regarding applicability of amended Sch. IV to the Workmen's Compensation Act to a fact situation in which the injured workman had died on 21 March 1962, and an application for compensation as filed by the heirs and legal representatives and his dependants was pending under S. 110-A of the Motor Vehicles Act. The State of Orissa which was the owner of the offending vehicle took up the contention that the claimants could not claim more than what they were entitled to under the Workmen's Compensation Act, It is in the light of the said defence that a question arose as to what would be the amount awardable under the Workmen's Compensation Act in case of such fatal injuries to the deceased workman. Before that question could be resolved in the pending proceedings under the Motor Vehicles Act, the Legislature amended Sch. IV of the Workman's Compensation Act and enhanced the amount payable to workman as mentioned in the tabular form to the schedule. Patra, J., considered the question in the light of the aforesaid fact situation and held:
“The normal rule of construction of statutes is that its operation is prospective unless it is made retrospective either expressly or by necessary implication. The rights and liabilities under the Workmen's Compensation Act get crystallized on the date of death of the workman. Therefore, the amount admissible under the schedule as in force on the date of death can only be awarded.”
The aforesaid reasoning of Patra, J., in the aforesaid decision is well borne out from the statutory scheme of the Act and is in consonance with the well-established rule of interpretation of statutes. I, therefore, fully concur with the view expressed by the Orissa High Court in the aforesaid case.
30. The following consequences would, therefore, follow in the light of the provisions of the Workmen's Compensation Act as amended by emending Act 65 of 1976:
(1) If accidental employment injuries are suffered by a workman on or after 1 January 1975, Sch. IV as amended by amending Act of 1976 will apply to the applications for compensation for such injuries, which might be pending on 21 May 1976, when the amending Act was brought in force. Even if such applications were disposed of earlier by the concerned Commissioners prior to 21 May 1976, employer's liability would be to pay compensation as per amended Sch. IV for such injuries and if the concerned claimants chose to agitate the question of proper compensation in appeals, the appellate Court would be justified in enhancing the compensation amount by applying the enhanced rates of compensation as per amended Sch. IV.
(2) Amended provisions of Sch. IV shall also apply to all proceedings for compensation in connexion with injuries suffered by injured workmen on and from 1 October 1975 onwards, even if such applications might come to be filed after 21 May 1976, within the period of limitation prescribed by S. 10(1) of the Act.
(3) If, however, accidental injuries are suffered by injured workman prior to 1 October 1975, and if any applications are filed for getting compensation in connexion with those injuries, whether such claim applications are filed prior to 1 October 1975 or after that date, and whether such applications were pending on 21 May 1976, or whether they were not so pending on account of the fact that they had got disposed of prior thereto or that they were filed after 21 May 1976, they will have to be decided in the light of the old unamended Sch. IV as applicable at the time the accidental injuries were actually suffered by the concerned workmen.
31. As a result of the aforesaid discussion, it must be held that in the light of the facts and circumstances of this case, amendment to Sch. IV as effected by Amending Act 65 of 1976, cannot be pressed in service by the respondent-workman for computing compensation payable to him for the employment injury suffered by him on 11 October 1971. He would be entitled to get compensation as per old rates as reflected by the then existing Sch. IV. As already mentioned earlier, the amount would be Rs. 9,800 and not Rs. 23,520 as awarded by the Commissioner. The present appeal will, therefore, be allowed and the award of the Commissioner will have to be modified downwards by substituting figure of Rs. 9,800 in the place and stead of Rs. 23,520 as mentioned in the Commissioner's award. Direction as to 6 per cent interest from the date of the application till realization of course has to remain untouched. The view which I have taken in the present proceedings, therefore, fully accords with the one expressed by N.H Bhatt, J. I also agree with the final conclusion to which he has reached. With great respect, I am not in a position to agree with the contrary view expressed by I.C Bhatt, J.