COMMON JUDGMENT:

1. Since the issue involved, the parties and the order under challenge in these appeals are one and the same, with the consent of the counsel appearing for the parties, these appeals are being disposed of by this common Judgment.

CMA No. 1249 of 2012

2. This Civil Miscellaneous Appeal is filed appellant/opposite party No.1 seeking to set aside the Order dated 26.06.2012 passed in W.C.No.03 of 2005 by the Court of the Commissioner under the Employee’s Compensation Act, 1923 and Deputy Commissioner of Labour, Srikakulam (for short ‘the learned Commissioner’) by raising the following substantial questions of law.

a. Whether the learned Commissioner is justified in coming to the conclusion that there exists relationship of employer and employee between the applicant and opposite party No.1 though the applicant failed to prove the same by cogent evidence ?

b. Whether the learned Commissioner is justified in placing burden on opposite party No.1 to disprove that the applicant was of their employee as no such reverse burden is specified under the Act ?

c. Whether the learned Commissioner is justified in awarding compensation against opposite party No.1 ignoring the admission of opposite party No.2 that he had engaged the applicant as contract labour with him ?

d. Whether the learned Commissioner is justifiable to fix the loss of earning capacity at 53% when the medical report is silent on that aspect ?

e. Whether the award is justified in computing the percentage of loss of earning capacity as 53% which is contrary to the Section 4(i)c(ii) and Explanation II of the Employees Compensation Act, 1923 (for short ‘the Act’) ?

CMA No. 69 OF 2023

3. Against the very same Judgment, this Civil Miscellaneous Appeal is filed by the appellant/applicant questioning the order dated 26.06.2012 passed in W.C.No.3 of 2015 by the Court of the Commissioner under the Employee’s Compensation Act, 1923 and Deputy Commissioner of Labour, Srikakulam by raising the following substantial questions of law:

a. Whether it is justified under law to assess the loss of earning capacity as 23% though the evidence of the Doctor reveals that he cannot withstand to hot or cool atmosphere ?

b. Whether the learned Commissioner is justified in not considering the disability as 100% ?

4. Heard Sri P.Vikram, learned counsel appearing for the appellant (CMA.1249 of 2012) and respondent No.1(CMA.69 of 2023), Sri V.Sudhakar Reddy, learned counsel appearing for the appellant (CMA 69 of 2023) and respondent No.1 (CMA.1249 of 2012) and Sri Srinivasa Rao Vutla, learned Standing counsel for the respondent No.3/Insurance Company. The case against respondent No.2 was dismissed vide order dated 21.07.2016. Perused the material on record.

5. Learned counsel for the appellant/Management of Aurobindo Pharma Limited(opposite party No.1) would submit that when the applicant failed to establish the relationship of employer and employee, the learned Commissioner has no jurisdiction to decide the claim. In addition to that, opposite party No.2, Contractor under opposite party No.1, clearly admitted that the applicant was engaged by him as a contract labour and the applicant’s risk was covered under the Insurance Policy, which was issued by the opposite party No.3. Under these circumstances, the learned Commissioner erroneously awarded compensation against the opposite party No.1 alone. Learned counsel further submits that the percentage of loss of earning capacity at the rate of 53% is contrary to the provisions of the Act.

6. Refuting the above submissions, learned counsel for the respondent No.1 in CMA No.1249 of 2012 (applicant) would submit that the applicant has approached the industrial Tribunal when the management has not responded to his request of reinstatement. ID No.65 of 2005 was allowed in favour of the applicant. Though there is a stay in WP No.26764 of 2009 preferred by the management of the company, there is a categorical finding of the learned Commissioner to the effect tha