1. The fourth defendant came up against the decree and judgment of the trial court on account of the death of the victim by electrocution. The trial court awarded an amount of Rs.10,00,000/- to the legal heirs of the victim, the plaintiffs.
2. The decree and judgment of the trial court is brought under challenge based on the bar under Section 75(3) of The Employees' State Insurance Act, 1948 (in short, the ESI Act) and also on the ground of estoppel and res judicata as the present suit is the third attempt after exhausting remedy before the Workmen's Compensation Commissioner and the Human Rights Commission. It was dismissed for want of jurisdiction and on the ground of bar under Section 75(3) of the ESI Act. An application submitted before the ESI officer was also ended in dismissal on the ground that the petitioners will not come under the purview of benefit that can be granted under the ESI Act. It is thereafter the present suit was filed for getting compensation on account of the death of victim.
3. The maintainability of the suit was raised as a preliminary objection based on the bar under Section 75(3) of the ESI Act and advanced a case that the remedy lies with the ESI Court constituted under the Act. The trial court instead of adjudicating the said objection as a preliminary issue, proceeded with the suit on the ground that the question of bar under the provision is a mixed question of law and fact and requires adjudication at the final stage. Aggrieved by the said order, the fourth defendant came up in C.R.P.No.649/2014 before this Court. Though the order of the trial court was initially set aside by order dated 03/02/2015, later on, it was recalled in R.P.No.477/2015 by order dated 09/06/2015 and the CRP was ultimately dismissed with a direction to the trial court to proceed with the suit in accordance with the law. Subsequently, C.R.P.No.196/2016 was filed by the fourth defendant so as to get clarification as to whether the incident involves 'employment injury' as defined under the ESI Act. The abovesaid petition was also dismissed in view of the earlier order passed in R.P.No.477/2015 in C.R.P.No.649/2014. Thereon, the fourth defendant participated in the trial of the suit which has resulted in the impugned decree and judgment against the fourth defendant.
4. By relying on the decision rendered by the Apex Court in Mumbai International Airport (P) Ltd. v. Golden Chariot Airport and Another [(2010) 10 SCC 422] and a Division Bench of this Court in Raghavan Nair v. Appu Kidavu (1979 KLT 458), it was submitted that when there is a selection/election of a particular forum/court having jurisdiction over the matter, estoppel by conduct and also estoppel as embodied under Section 35 of the Transfer of Property Act would come into play and the person who had selected/elected the particular forum or the court to redress his grievance will stand estopped from agitating the very same issue in any other forum having jurisdiction over the matter. It is further submitted that since there is a selection of forum having jurisdiction over the matter on earlier two occasions, that is, Workmen's Compensation Commissioner and Human Rights Commissioner besides the ESI Officer, the plaintiffs are estopped from bringing up a suit of this nature based on the very same cause of action and the subject. The said contention cannot be sustained on the reason that selection of forum for redressing the grievance will not come under the purview of doctrine of election or Section 35 of the Transfer of Property Act. The doctrine of election as embodied under Section 35 of T.P.Act would come into play where a person professes to transfer a property which he has no right to transfer and part of same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent it and in the latter case, he shall relinquish all such benefits so conferred with all its legal consequences, then such benefit and the legal consequence thereof would go back to the transferor, but subject to exceptions incorporated therein. It is a rule of practice in equity so as to bring status quo ante of the property and the rights of respective persons unless it involves the elements of gift or gratuitous transfer. The doctrine is resting on the well known principle that no one shall aprobate and reprobate at the same time (Qui approbat non reprobat). Hence, selecting a wrong forum under mistake or otherwise will not come under the purview of Section 35 of the Transfer of Property Act or the estoppel based on doctrine of election. The doctrine of res judicata as embodied under Section 11 C.P.C. would not come into play unless there is an adjudication of dispute by a competent forum/court. Further, the respective applications submitted before the Workmen's Compensation Commissioner and Human Rights Commission were dismissed on account of the bar under Section 75(3) of the ESI Act. As such, the present suit though it is the third initiative would not stand hit by Section 11 C.P.C. or Section 35 of the Transfer of Property Act.
5. On coming into the question of ouster of jurisdiction by virtue of any special enactment or any provision thereunder including Section 75(3) of the ESI Act, it must be understood that the provision in the special enactment though has an overriding effect over the general law, will not take away the inherent jurisdiction vested with the civil court. It is by virtue of Section 9 C.P.C. and the provision contained in the special enactment including Section 75 of the ESI Act, certain matters which would otherwise fall under the jurisdiction of the civil court were taken away and brought under the jurisdiction of court/forum constituted under the special enactment for determination and adjudication. This would show that in so far as civil court is concerned, there is no inherent lack of jurisdiction to deal with such matters, but because of the debarring provision in the special enactment, certain matters were taken away from the jurisdiction of the civil court and vested with the Tribunal or court constituted under the special enactment. There would arise a question as to what would be the legal validity of an adjudication rendered by a civil court with respect to a matter which would come under the purview of any debarring provision of any special enactment. There may be occasion in which a decree was passed by the civil court without noticing any such provision of debar either on the failure of the parties or otherwise. When no such question of debar was raised and proceeded with the suit and ended in a decree without any preliminary adjudication, the decree would not stand invalid or void in the eye of law because of the debarring provision or ouster of jurisdiction by any provision of the special enactment. Certainly, yet another question also requires consideration when no preliminary adjudication was rendered on that question, though it was raised before the trial of the suit and proceeded with the suit without adjudicating the said issue as a preliminary one and ended in a decree.
6. As discussed earlier, there is no inherent lack of jurisdiction to any civil court to adjudicate any question of civil nature. It is by virtue of the special enactment or provision therein, certain matters of civil nature which would otherwise fall under the jurisdiction of a civil court were taken away and vested with a Tribunal or the court constituted under the special enactment. In the absence of such a special enactment or provision thereof, those matters necessarily would fall under the jurisdiction of civil court. This would make the legal position clear that there cannot be any inherent lack of jurisdiction with a civil court pertaining to any dispute of civil nature. It is also settled that when the court has no inherent jurisdiction, no amount of consent, acquiescence or waiver can create it [Kiran Singh and Others v. Chaman Paswan and Others ([1955) 1 SCR 117 = AIR 1954 SC 340), United Commercial Bank Ltd. V. Workmen (AIR 1951 SC 230), Globe Transport Corporation v. Triveni Engineering Works and Another [(1983) 4 SCC 707], Nai Bahu v. Lala Ramnarayan and Others [(1978) 1 SCC 58]. But the legal position would be different when there is no lack of inherent jurisdiction and a decree is rendered by civil court on any civil dispute either by consensual jurisdiction or otherwise and the decree would not stand invalid or void merely because of any specific bar or ouster of jurisdiction under any special enactment. At this juncture, it is worth to extract the following passage from Pasupuleti Venkateswarlu v. The Motor & General Traders [(1975) 1 SCC 770) rendered by a three Judge Bench of the Apex Court referring to judicial flexibility to impart justice based on equity :
“It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice – subject, of course, to the absence of other disentitling factors or just circumstances.”
7. The said decision though not rendered on the question of exclusion of jurisdiction or bar under any special enactment, the principle laid down by the Apex Court would apply when a party opted to proceed with the suit and participated in the trial though after raising the initial objection of bar under any special enactment and ended in a decree without addressing the said question as a preliminary issue, unless the decree by itself would stand vitiated by absence of fairplay and equity. In fact, it is an exception to the general principle that the special statutory provision will prevail over the general law in any matter. The jurisdictional ouster or statutory confinement by way of special enactment would always stand subject to the consensual jurisdiction and it may be either express or implied and sometimes it may be by virtue of estoppel. In all these cases, the decree which is the result of final adjudication by the civil court having inherent jurisdiction, would not stand vitiated either on account of any specific bar of special enactment or statutory bar, unless the decree is vitiated due to absence of equity or fairplay. Instance of implied consent or estoppel can be inferred when the party who raised the objection of jurisdiction on account of statutory bar of any special enactment has opted to proceed with the suit by participating in the trial and ended in a decree and judgment and thereafter he/she cannot wriggle out of it on the ground that the issue of ouster of jurisdiction was not addressed and adjudicated as a preliminary issue or on the ground of ouster of jurisdiction under any special enactment. Further, mere raising of preliminary objection as to ouster of jurisdiction or statutory bar alone will not relieve them from their initial liability to get it adjudicated as a preliminary issue. Even failure on the part of trial court to adjudicate the issue as a preliminary one may not by itself bring them not bound by the decree when they opted to participate in the trial and ended in a decree. In other words, when the defendant/respondent opted to go with the trial of the suit after raising the preliminary objection of ouster of jurisdiction and when it has culminated in a decree, they would stand estopped from raising the said question on a later stage and it will not affect the validity of the decree unless there is inherent lack of jurisdiction on the court which has passed the decree and not vitiated by lack of fairplay and equity. The legal position was settled by this court in Steel Complex Ltd. (M/s.) v. K.G.Subramania Iyer (2019 (3) KHC 732) with respect to the lack of inherent jurisdiction and lack of jurisdiction, which has to be dealt with separately since the legal consequences are different.
8. Further, going by 21(2) C.P.C. even in the case of incompetency on account of lack of pecuniary jurisdiction, it is not permissible to raise the same either at the appellate stage or revisional court unless the same was taken in the court of first instance at the earliest possible opportunity except in the case of consequent failure of justice.
9. The legal position may be different, if it is pertaining to the non-obstante clause incorporated under Section 11 of the Kerala Buildings (Lease and Rent Control) Act wherein what is actually provided is not the ouster of jurisdiction, but a statutory prohibition in evicting a tenant either in execution of a decree or otherwise except in accordance with the provisions of that Act, hence standing on a different footing and there is no question of adjudicating any preliminary issue before proceeding with the rent control petition. The second proviso attached to Section 11 of the Act is illustrative of jurisdiction that can be exercised under the main section. Hence, there is a slight difference in the legal position so far as the nonobstante clause incorporated under that section is concerned and it cannot be treated as a mere ouster of jurisdiction.
10. In the instant case, though an objection was raised with respect to the bar under Section 75(3) of the ESI Act, the trial court failed to adjudicate the said issue as a preliminary one even after the order passed by this Court in the above CRP. In fact, the trial court deferred the issue for adjudication at the final stage of the suit, which was not assailed by the defendant as per lex fori and lex loci. When the defendant co-operated and participated with the trial of the suit, either on free volition or under compulsion and when it has resulted in a decree on merit before the trial court, he would stand bound by the decree irrespective of ouster of the jurisdiction by any of the provisions of special enactment unless there is inherent lack of jurisdiction to deal with the matter by the civil court which passed the decree and not vitiated by lack of fairness and equity.
11. In so far as the application of Section 75 of the ESI Act is concerned, it is necessary to have an understanding with respect to the scope and ambit of the section, hence extracted below for reference:
“75. Matters to be decided by Employees' Insurance Court
(1) If any question or dispute arises as to
(a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee's contribution, or
(b) the rate of wages or average daily wages of an employee for the purposes of this Act, or
(c) the rate of contribution payable by a principal employer in respect of any employee, or
(d) the person who is or was the principal employer in respect of any employee, or
(e) the right of any person to any benefit and as to the amount and duration thereof, or
(ee) any direction issued by the Corporation under section 55A on a review of any payment of dependants benefits, or]
[* * *]
(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act,or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act, such question or dispute subject to the provision of sub-section (2A)] shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (2A), the following claims] shall be decided by the Employees' Insurance Court, namely:-
(a) claim for the recovery of contributions from the principal employer;
(b) claim by a principal employer to recover contributions from any immediate employer;
[* * *];
(d) claim against a principal employer under section 68;
(e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and (f) any claim for the recovery of any benefit admissible under this Act.
(2-A) If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees' Insurance Court under sub-section (2) of section 54A in which case the Employees' Insurance Court may itself determine all the issues arising before it.
(2-B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation:
PROVIDED that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.]
(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court.”
12. The scheme of Section 75 of the ESI Act would show that it is principally dealing with the dispute pertaining to the status of the employee, contribution payable, wages and other benefits of employees etc.. It is by virtue of 1964 amendment (Act 44 of 1966), sub-section 2-A was inserted, besides the substitution made in sub-section (3) by substituting 'a medical board or by a medical appeal tribunal or by the Employees' Insurance Court' in the place of 'Employees' Insurance Court'. Necessarily, the bar under sub-section (3) pertaining to the matters made under sub-section(1) and (2) must be appreciated with the legislative intent. A mere reading of sub-section 2-A with various riders incorporated therein as to the decision of the medical board and the medical appeal tribunal and the condition incorporated therein would make the issue a mixed question of law and fact. Further, going by Section 75 of the ESI Act, the word/expression 'employment injury', though defined under the Act, is not incorporated therein and hence, Section 75(3) of the ESI Act cannot be considered as a provision of complete ouster of jurisdiction of civil court especially when it involves the questions of tortious liability and vicarious liability. It is also settled that the jurisdiction with respect to a subject matter of a claim depends initially upon the allegation in the plaint and not upon the allegation in the written
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statement or upon those which may ultimately be found true (Raizada Topandas and Another v. Gorakhram Gokalchand (AIR 1964 SC 1348 (1354)). When it is culminated in a decree or adjudication by a court having inherent jurisdiction over the subject, even in a case of ouster of jurisdiction either by statute or any special law would not make the decree or the adjudication thereof invalid or a nullity even if it was ultimately found that the parties are governed by the special statute and the bar thereunder. The principle behind it is not to defeat administration of justice, but to promote. But that does not mean that when such a question was taken up, the civil court is justified in proceeding with the suit without addressing the question as a preliminary issue. Once it was found that the civil court has no jurisdiction to deal with the matter based on any ouster or bar under any special enactment, the plaint is liable to be returned for proper presentation. It is a case wherein the victim died due to electrocution. Admittedly, it will not come under the purview of 'self-inflicted injury'. The electrocution happened while the victim was employed with the 4th defendant. Exts.X1 (a) and Ext.X1(b) are the mahazers prepared by the Assistant Engineer, KSEB with respect to the place wherein the alleged incident was happened, wherein it is reported that there was an unauthorised extension of electrical wire to 10 rooms lying in a row intended for the residence of employees under the 4th defendant. The victim was one among the employees who was occupying one of the rooms and electrocuted while he was attempting to put a towel on an iron wire which was in contact with the roof of the building and the electrical extension unauthorisedly drawn. DW2 is the officer, who prepared the mahazer. Though an argument was advanced that the report and mahazar are self serving, they were prepared in exercise of statutory function and proved through the official, DW2, hence cannot be rejected as a self-serving one. Further, the learned counsel for the appellant fairly conceded that the compensation awarded, which comes to Rs.10,00,000/- reflects a proper balance. Hence, the appeal fails, dismissed.