(1.) THIS judgment shall govern the disposal of the connected Misc. Appeal No. 104/73 (M. P. Electricity Board and 5 others v. Employees state Insurance Corpn. , Indore), M. A. No. 105/73 (M. P. Electricity Board and 5 others v. Employees State Insurance Corp. , Indore), M. A. No. 106/73 (M. P. Electricity Board and 5 others v. Employees State Insurance Corp. , indore), and also 107 /73 (M. P. Electricity Board and 5 others v. Employees state Insurance Corp. , Indore), and since all these five appeals arise out of the common order made by Employees Insurance Court, involving the common point, they were linked together for hearing.

(2.) THESE miscellaneous appeals have been preferred before this Court by the M. P. Electricity Board, and its Officers, shown as appellants, under section 82 sub-section (2) of Employees State Insurance Act, 1948, challenging the order made by the Insurance Court at Indore, on 30th April 1973. The facts giving rise to the proceedings before the Insurance Court, out of which these appeals arise, were as below :-

(3.) RESPONDENT Employees State Insurance Corporation (hereinafter referred to as the corporation), is a statutory body constituted under the provisions of the Employees State Insurance Act, 1948 (hereinafter referred to as the insurance Act). The appellant M. P. Electricity Board was the employer of the following 5 persons- (1) Ali Hussain S/o Kadarbhai; (2) Chandrakant; (3) Govind; (4) Madhukar; and (5) Maruti. The appellant board has its power-house at Indore. The aforesaid 5 persons were employed on respective jobs in the said power-house which is undisputedly governed by the provisions of the Factory Act. It was also not in dispute that the provisions of the Insurance Act were applicable to the above-referred establishment of the M. P. Electricity Board. It was further, not in dispute that on 20th of March, 1965, the above referred 5 employees received burn injuries in an accident undisputedly arising out of and during the course of employment. The injuries received by the 5 employees were also admitted to be employment injuries. Since the employees were covered by the policy of insurance, the Insurance Corporation had to pay compensation to them in accordance with the provisions of the Act. The details of compensation paid by the Insurance Corporation to the employees concerned are as below:-

(4.) THE accident in question arose while lifting a transformer. The necessity to lift the same arose for the purposes of taking out the bushes from the bottom of the penal for replacement. The said penal was admittedly a working one, and was alive with high voltage of current. As disclosed from the material on record, the said penal had a base-bar-chamber. It appears that while commencing operation on the said penal, the base-bar-chamber was not made dead, probably under the impression that when the transformer will be withdrawn and the chambers having been already dead, the automatic shutters of the chambers will close the same, there was no necessity for making the base-bar-chamber also dead, and the transformer could be safely lifted and removed. From the material on record, it further appears that while removing the transformer certain projected part of the base-bar-chamber was creating obstruction to the lifting of the chamber. The said part which was causing obstruction happened to be fitted to the base-bar-chamber with a nutt and bolt from inside. Ali Hussain under an impression that since he and his other associates have been put on the work of removing the transformer from the penal in question, the entire penal including the base-bar-chamber must have been made dead, not only as per common practice, but as per requirements under the rules framed under the electricity Act, in order to remove the obstruction, put his hands inside the base-bar-chamber for loosening the nutt by a spanner. It further appears that while doing so the spanner happened to fall down inside the chamber, and since the same was alive with high voltage of current, there was a serious flash all over and Ali Hussain and Chandrakant who were much closer to the chamber received serious burn injury which proved to be fatal, the other 3 workers who were holding the transformer however received minor burn injuries. As stated above, since all the 5 workers were covered by the insurance, they were paid compensation by the Insurance Corporation as detailed above.

(5.) ACCORDING to the provisions of section 66 which was in force on the date of the accident and onwards upto 17-6-1967, the Insurance Corporation was entitled to claim re-imbursement from the employer i. e. , the M. P. Electricity Board in the present case, if the employment injury was sustained by an insured person by reason of the negligence of the employer in observing the safety instruction or by reason of any wrong act of the employer or his agent, as prescribed under Electricity rules or prescribed by any other enactment governing the factory in question. The provisions of section 66, then in force were as reproduced below:-

" (1) Where any employment injury is sustained by an insured person as an employee under this Act by reason of the negligence of the employer to observe any of the safety rules laid down by or under any enactment applicable to a factory or establishment or by reason of any wrongful act of the employer or his agent, the Corporation shall notwithstanding the the fact that the employer has paid the weekly contributions due under this Act, in respect of such insured person be entitled to be re-imbursed by the employer or the principal who is liable to pay compensation under section 12 of the Workmens Compensation Act, 1923, the actuarial present value of the periodical payments which the Corporation is liable to make under this Act. (2) For the purposes of this Act, the actuarial present value of the periodical payments shall be determined in such manner as may be specified in the regulations. "

(6.) AFTER having paid the amount of compensation in accordance with the procedure prescribed by the Act the Insurance Corporation, however, instituted proceedings before the Insurance Court for claiming reimbursement under section 66 on 30th June 1957. It would be significant to mention that w. e. f. 17-6-1967, section 66 of the Insurance Act stood omitted by virtue of the provisions of section 29 of the Amending Act. The claim for reimbursement was denied by the employer, i. e. , the Board on various grounds. Apart from denying its liability by contending that there was no case of negligence or non compliance of safety rules etc. so as to make the employer liable, a preliminary objection to the maintainability of the claim instituted on 30th June 1967, was also raised on the contention that on the aforesaid date section 66 under, which the claim made already stood repealed and as such the Insurance Court has no jurisdiction to entertain such a claim and passing a decree for reimbursement irrespective of the fact that the accident resulting in employment injuries took place on the date when section 66 was very much in force.

(7.) THE Insurance Court tried the matter and after inquiry passed the judgment decreeing the claim of the Insurance Corporation for reimbursement to the extent as indicated in the earlier paragraphs. The Insurance court, however, also rejected the objection about the maintainability of the proceedings by holding that since the rights and liabilities had already accrued prior to the repeal of section 66, the same were saved by virtue of the provisions of section 6 of the General Clauses Act and the Corporation could maintain and prosecute the claim for reimbursement despite amendment of the Act omitting section 66. On facts the Insurance Court found that the injuries were caused due to negligence on the part of the employer in the matter of compliance of safety rules and as such the Board was liable for reimbursement.

(8.) IN these appeals before this Court the judgment of the Insurance court has been challenged by pointing out that the view taken by the insurance Court regarding the effect of amendment on the questions of maintainability of the proceedings after 17:6-67 is erroneous in law, and that since the findings arrived at in respect of the fact of negligence and non-observance of safety rules, were also per se, arbitrary, in the context of undisputed facts and circumstances and as such, they were also open for interference because in view of the above circumstances, the question about the correctness of such findings did not remain a question of fact.

(9.) WE would first deal with the question about the maintainability of the claim before the Insurance Court in the context of the effect of the amendment made by which section 66 was omitted w. e. f. 17-6-1967. In this respect it would be relevant to note that despite section 66 having been omitted by virtue of the provisions of section 29 of the Amendment Act, which was brought into force w. e. f. 17-6-1967, the provisions of sections 32 and 43 of the amending Act were not brought into force w e. f. 17-6-1967. The enforcement of sections 32 and 43 was made only in February 1968. Section 43 of the Amending Act contains a saving clause as reproduced below:-

"43. Act not to apply to certain cases. No provision 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. "

(10.) THE argument put forth by Shri Pavecha learned counsel for the appellants was that since the provisions of section 43 which save cases prior to the amendment was not brought on force w. e. f. 17-6-1967, and was also not on force on the date of the application, the Insurance Corporation could not claim the benefit of the same and since section 66 had already been omitted prior to the institution of the claim, the claims were not maintainable before the Insurance Court. Further contention put forth was that the absence of the saving clause was significant as it indicated of different intention of Legislature to destroy even those rights and liabilities which had accrued earlier, and therefore, the provisions of section 6 of the General clauses Act were not of any avail for the Insurance Corporation.

(11.) IN our opinion, this contention cannot be accepted. It is true that the provisions of section 43 containing the saving clause were not in force on the date of the petition, and thus it was a case of repeal in the absence of a saving clause. But it is also equally true that for determining whether the rights and liabilities under the repealed law have been put to an end by the new enactment, we are not to inquire whether the new enactment has by itself by its new provisions kept alive the rights and liabilities under the repealed law. On the contrary, what we have to see is whether it has taken away those rights and liabilities. Thus in this view of the matter even when a saving clause reserving the rights and liabilities under repealed law is absent in a new enactment, the same will neither be material nor decisive of the question of different intention because in such cases section 6 of the general Clauses Act will be attracted and the rights and liabilities acquired and accrued under the repealed law will remain saved unless there was something to infer that the Legislature intended to destroy the rights and liabilities already accrued. Shri Pavecha learned counsel for the appellants urged that for ascertaining whether the Legislature expressed a different intention in this respect the provisions of section 43 may be looked into even if they were not brought in force. In our opinion, this too does not improve the case of the appellants. On the contrary from the specific language used in section 43 it is apparent that the Legislature did not intend to destroy rights and liabilities already accrued, and therefore provided that nothing in the amending act would apply 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 the employee at any time before the date of coming into operation of any provision of the amending Act, and that such payments or proceedings in respect thereof, shall continue to govern by the provisions of the principal Act as it stood unamended.

(12.) IN any case, -since section 43 was not brought into force during the relevant period, what has to be looked into are the provisions of section 6 of the General Clauses Act. In order to determine the applicability of the provisions of section 6 we will have to see whether there is anything in the new enactment to indicate that the rights already acquired and accrued were intended to be destroyed. Nothing could be pointed out to us from the entire amending Act so as to give such an indication. On the contrary as discussed above the provisions of section 43 which was pointed out go to show that the intention was to safeguard and preserve the rights under the repealed provisions. The mere fact that the section was not brought into force simultaneously and was enforced later on is not material because section 6 of the General Clauses Act was available.

(13.) THE learned counsel for the respondent Insurance Corporation placed reliance on the decision of Division Bench of this Court in the case of satna Cement W. v. E. S. I. Corp. , 1971 MP L J 821-1971 J L 3 800. In this case the Division Bench has taken the same view as we have taken in the preceding paragraphs. Shri pavecha however, pointed out that the Division Bench happened to take the said view by placing reliance on the provisions of section 43 under an impression that the same were also brought in force w. e. f. from the date of omission of section 66. He pointed out that in fact it was not so because section 43 had been brought into force only in February 1968, and this was lost sight of by the Division Bench. It is true that from the perusal of the contents of the decision of the Division Bench it does appear that the Bench was under the impression that section 43 of the Amending Act was in force. But the same does not make much difference, because even in the absence of a saving clause the provisions of section 6 of the General Clauses Act were very much there and as discussed, above, since there was nothing in the amending Act to indicate the different intention of destroying the rights and liabilities already accrued, the opinion expressed by the Division Bench, however, still remains sustained due to the provisions of section 6 of the general Clauses Act. One more decision of Single Bench of this Court given in 2nd Appeal No. 125 of 1974 decided on 3-12-1977, was referred. In this decision also reliance has been placed on the provisions of section 43 and it was not pointed out that the said section had not come into force. In view of the reasons given above we are not inclined to take a different view in that respect.

(14.) AS regards the challenge to the correctness of the finding arrived at by the Insurance Court on facts, regarding negligence and breach of rules, it would suffice to observe that in view of the limited scope of interference in an appeal under section 82, sub-section 2 of the Insurance Act which remains confined to substantial questions of law only, the scope of taking a different View on facts in the present appeal is little. Even, otherwise, the findings arrived by the Insurance Court, appear to be quite reasonable and proper and cannot be said to be arbitrary. The Insurance Court has given sufficient reasons for holding the appellant Board guilty of negligence in the matter of compliance of safety rules, and negligence. From the evidence on record it is apparent that the qualified Engineer who was to supervise the operation of lifting of the transformer which became necessary for changing the bushes at the bottom of the penal, preferred to leave the place when the operation was going on. It was said that as he was required to look after some other work, he could not remain present throughout the operation. It is undisputed that before commencing the work the base-bar-chamber was not made dead, despite the fact that the transformer which was affixed to the said chamber was required to be removed. It is true that there were automatic shutters, but it is also equally true that there was a projected part of the chamber over the transformer and same was likely to cause obstruction. The base-bar-chamber and the transformer were so closely affixed that in normal course the entire apparatus including the base-bar-chamber should have been made dead, for safe working. In this respect Rule 64 (e) of Indian electricity Rules, 1956, the applicability of which was not in dispute needs reference. The rule as quoted below requires that only when the conditions are such that all the conductors and apparatus of extra high voltage may be made dead at the same time for the purpose of cleaning or for any other work thereon. It is true that the rule also provides that if the conditions are not such as stated above, the conductors and the apparatus may be so arranged that they may be made dead section wise.

"64 (e) Unless the conditions are such that all the conductors and apparatus for use at high or extra-high voltage may be made dead at the same time for the purpose of cleaning or for other work thereon; the said conductors and apparatus shall be so arranged that they may be made dead in sections, and that work on any section made dead only be carried on by an authorised person without danger. "

(15.) IN the present case the transformer was annexed to the base-bar-chamber. It was to be withdrawn from the same. The base-bar-chamber was not made dead. The projected part of the base-bar-chamber extending towards the transformer was apparently visible. Under these circumstances when it was also known that the transformer is to be lifted the probability of the projection causing obstruction could not be normally ruled out. Once it was so the normal course for ensuring safe operation without any danger was to make the base-bar-chamber also dead at the relevant time. We feel that had the technical expert, that is, the Engineer, inharge who was to get the operation carried on in his direct supervision been present, he would have naturally taken such care. As the projected part of the chamber was causing obstruction Ali Hussain felt that the said projection should be removed by loosening the nut and bolt by which it was fixed to the chamber. He made an attempt and while loosening the nut the spanner happened to fall inside the chamber, and since the same was alive with high voltage of current, there was a flash, resulting in burn injuries, not only to Ali Hussain and Chandra Kant but to the other 3 workers also who were holding the transformer for being lifted. There is evidence of the Technical Expert mr. L. G. Thadni (P. W. 1), Chief Electrical Inspector and Electrical advisor to Govt, of M. P. . He had inspected the spot immediately on receipt of the information of the accident. In his opinion, before attempting to remove the transformer the base-bar-chamber should also have been disconnected and made dead. He has further opined that since one nut of the base-bar-chamber was to be loosened for removing the transformer the disconnection of the chamber was apparently necessary. He had further opined that if the base-bar-chamber would have been made dead, there would have been no accident even if the spanner had slipped and fallen down. He had also stated that the Engineer Incharge was responsible for the safe working and should have seen that the base-bar-chamber was also disconnected. Before us the learned counsel for the appellants contended that there were other means and ways for removing the transformer even without loosening the nutt of the base-bar-chamber and if the workers would have adopted the said course, there would have been no need to use the spanner for loosening the nut of the chamber. In our opinion, this argument, even if accepted, cannot absolve the appellant from the charge of negligence and breach of safety rules. In normal course what was necessary for safe working was required to be done. In the present case it was not so done, and on the contrary the Technical Officer who was expected to supervise the operation who had been assigned some other job also simultaneously preferred to leave the place. In the matter of observance of safety rules, certain remote possibilities of avoiding accidents by adopting a particular course cannot be relied as justification for non-observance of the requirement of rules. In our opinion, the finding arrived by the Insurance Court on facts are not open for interference in the present appeals, which are confined to substantial questions of law.

(16.) LASTLY, an effort was made to show the findings arrived by the insurance Court as being erroneous in law by contending that the ground on which the Insurance Court had held the appellant guilty of breach of the safety rules was not included in the seven specific grounds pleaded in the petition. After hearing the learned counsel and on going through the record, we are of the opinion that this contention too is misconceived. It is true that the Insurance Court happened to negative certain specific grounds as urged in the petition but the ground on which the appellant has been held to be guilty does find mention in the contents of the application moved by the Corporation. The appellant has been held guilty of the non-compliance of the Rule 64 (2) (e) and (f) of the Indian Electricity Rules. This aspect has been dealt in para 15 to 17 of the judgment impugned. The breach of this rule had been specifically alleged in para 5 of the application along with the allegation of negligence. There is also an allegation of not making the base-bar-chamber dead. The said allegations have also been duly replied by the Corporation. The parties went to trial with full knowledge of this aspect of the case. This contention is, therefore, rejected.

(17.) IT was also pointed out that from the statement of the co-workers examined by the Corporation, it was found that Ali Hussain was aware of the fact that the base-bar-chamber was alive, and, therefore, it was he who had negligently inserted his hands inside the base-bar-chamber for loosening the nutt despite knowing that it was alive. The argument was that under these circumstances, even if the base-bar-chamber was not made dead there was no question of negligence on the part of the appellant. We have gone through the record. It is true that one of the co-workers had stated that ali Hussain might have been aware of the fact that the base-bar-chamber was not dead. In any case, it is an impression carried by the said witness. However, this does not render the finding of fact arrived by the Insurance court vitiated. When the safety rules require certain precautions to be taken, they are to be observed because such precautions are prescribed after taking into account the possibility of negligent, ill-advised or indolent conduct on the part of an employee. It is true that if Ali Hussain would not have inserted his hands inside the base-bar-chamber, the accident might not have occurred. But it is also equally true that if the safety rules require that certain channels which are being cleaned or operated for some other work and the workers are required to work on the same closely should be made dead, then simply by expecting that no worker would come in contact with it, the employer cannot justify the non-observanee of the safety rule regarding disconnection. Actually speaking when the employers stop realizing the importance of observance of the safety rules, as has been noticed in the present case not only in respect of making high voltage channels dead, but also as found by the Insurance Court in the matter of the Charge Engineer leaving the place while the operation was going on and not following the system of maintaining a list of authorised persons and issuing permits for work accordingly, the scope of occurrence of such accidents becomes wide. Thus, the findings on question of fact as arrived by the Tribunal cannot be said to be erroneous in law and in any case the grounds put forth for assailing the same do not involve any substantial question of law.

(18.) SINCE the question of tenability of the proceedings by the Corporation before the Insurance Court, even after repeal of section 66 has been decided in favour of the Corporation and the findings arrived by the Insurance Court on facts are not open for interference, the judgment and decree impugned are sustained. These appeals accordingly fail and are dismissed.

(19.) IN the facts and circumstances of the case there will be no order as to costs. Parties will bear their own costs of these appeals. Appeals dismissed.