JUDGMENT :

R.K. Deshpande, J.

1. This is the reference by the learned Single Judge (Shri A.S. Chandurkar, J.) of the following question of law for consideration by the Larger Bench.

“Whether by virtue of provisions of Section 16 of the Act of 1977, an employee who has received ex gratia payment under Section 7(2)(xiv) of the Act of 1977 is precluded from seeking compensation under Section 22 of the Act of 1923?”

2. The factual position, as is narrated in the order of reference, can be reiterated. One Ganesh Kakar, the husband of the respondent No.2, was employed with the Social Forestry Division, Buldhana. He was engaged for doing the work of planting trees, digging pits, watering plants, etc., at Taluka Motala and was paid wages at the rate of Rs.127/per day. On 20-12-2011, the said Ganesh met with an accident during the course of employment when the tractor in which he was travelling, fell in a pit and overturned. Ganesh succumbed to the injuries sustained in the accident.

3. The respondent Nos.2 to 5 are the claimants, who filed the proceedings for grant of compensation under Section 22 of the Workmen's Compensation Act, 1923 [for short, “the Act of 1923”]. In the reply filed by the appellate-State Government, it was the stand taken that the deceased Ganesh was employed as a Labour by the Social Forestry Department under the Mahatma Gandhi Rural Employment Scheme. It was stated that the family of the deceased was paid Rs.50,000/as ex gratia amount on 17-5-2012 as per the provision of Section 7(2)(xiv) of the Maharashtra Employment Guarantee Act, 1977 [for short, “the Act of 1977”] and, therefore, the application for compensation was not maintainable.

4. In the decision of the learned Single Judge of this Court in the case of Executive Engineer, Ujani Canal Division No.6, Pandharpur and another vs. Tukaram Pandurang Dedhe, reported in 1991 (1) Mh.L.J. 783, the same question of maintainability arose for consideration. After taking into consideration the provisions of Section 7(2)(xiv) of the Act of 1977, which provided for ex gratia payment in case of the death of any person employed under the Scheme by accident arising out of and in course of employment, it was held that the provisions of the Act of 1977 shall have overriding effect by virtue of Section 16 therein and, therefore, the compensation provided under the provisions of Section 22 of the Act of 1923 would not be available. Para 4 of the said decision being relevant, is reproduced below :

“4. The Act of 1977 has been introduced with an object for securing right to work by guaranteeing employment to all adult persons who volunteer to do unskilled manual work in rural area. The entire scheme of the Act has a special drive unlike those employments which are known in a common parlance. In this special scheme of the Act one of the aspects has been incorporated as discussed above, regarding payment of amount in case of disablement as contained under clause (xiv) of section 7. The payment in case of disablement is to be made as per the scheme, without there being any rider as provided under the Act of 1923. The payment is envisaged by the provisions of the Act 1977 is to mitigate the agnony of a person who suffered injury while working under the Scheme. The Act of 1977 also provides for a particular forum. As such even if the legislation has used the nomenclature of ex gratia payment that is analogous and at par with the compensation which is being awarded under the Workmen's Compensation Act. Provisions on the subject of compensation under the Act of 1923 are apparently in conflict and are inconsistent with those provided under the Act of 1977. In view of section 16, the provisions in this regard, under the Act of 1977, due to overriding effect shall prevail over those under the Act of 1923.”

5. The learned Single Judge in the order of reference did not agree with the view ( i) that even if the Legislature has used the nomenclature of ex gratia payment, that is analogous and at pa