Gujarat High Court
Urja vs Chandanben on 29 March, 2010
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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FA/3617/2005 13/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3617 of 2005
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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URJA
ENGINEERS PVT.LTD. NOW AS EMCO LTD. - Appellant(s)
Versus
CHANDANBEN
MULABHAI KOLI & 1 - Defendant(s)
=====================================================
Appearance :
Mr.Kunan Naik
for M/S TRIVEDI & GUPTA for Appellant
RULE
SERVED for Defendant(s) : 1,
MR MD RANA for Defendant(s) : 2
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 29/03/2010
ORAL
JUDGMENT
1. This appeal, under Section 30 of the Workmen's Compensation Act, 1923 read with Section 96 of the Code of Civil Procedure,has been preferred, impugning the judgment and order dated 23-5-2005 passed by the Workmen's Compensation Commissioner, Godhra in Distribution Application No.10 of 2003.
2. At the very outset, Mr.Kunan Naik,learned advocate for M/s.Trivedi and Gupta, learned counsel for the appellant states that the appellant is confining the challenge in the appeal to the direction of the Workmen's Compensation Commissioner ( the W.C.Commissioner for short) in the impugned order, declaring the settlement between the appellant-Company and respondent No.1 to be null and void and directing the payment of an additional amount of Rs.36,236/-, over and above the amount of Rs.25,000/- which was agreed upon by the appellant and respondent No.1, by way of settlement.
3. Briefly stated, the relevant facts of the case as stated in the memorandum of the appeal are that, the appellant was given the work of laying electricity lines at Junagadh by respondent No.2,Gujarat Vidyut Board (as it was then known). For the purpose of carrying out the aforesaid work, one Mr.Devubhai Darbar was engaged by the appellant. The husband of respondent No.1 approached the said Mr. Devubhai Darbar for employment, but looking to his physical condition Mr.Darbar initially refused to do so. As the husband of respondent No.1 made persistent requests, Mr.Devubhai Darbar ultimately engaged him to take care of the material of respondent No.2. It is the case of the appellant that the husband of respondent No.1 was not keeping good health and used to visit the Doctor frequently as he was suffering from chest-pain. On 22-1-1994, the husband of respondent No.1 developed chest-pain after completion of the work, at approximately at 7.0 P.M., and expired. It is the specific case of the appellant that the husband of respondent No.1 did not expire during the course of employment.
3.1 The respondent No.1, wife of the deceased, filed an application, claiming compensation under the Workmen's Compensation Act,1923 ( The W.C. Act for short) on 28-2-1994, claiming compensation to the tune of Rs.1,50,000/- along with interest. Initially, the application was filed before the W.C.Commissioner, at Junagadh and it appears that later on it was transferred to Godhra.
4. A written statement was filed by the appellant, contesting the claim of respondent No.1 on merits.
5. The admitted facts, as also mentioned in the impugned order are that during the pendency of the proceedings and before an Award could be passed, the appellant and respondent No.1 entered into a settlement before the Lok Adalat on 17-12-2002. As per the said settlement it was agreed upon by the parties to settle the claim for compensation at an amount of Rs.25,000/-. Pursuant thereto, a joint Purshish was filed by the appellant and respondent No.1 before the W.C. Commissioner, which is on record as Annexure F, at running page 35 of the Appeal. As per this Purshish, respondent No.1 stated that she has voluntarily agreed to enter into a settlement and accepts Rs.25,000/- from the appellant as full and final settlement,with no further claim regarding compensation. Accordingly, the compensation application(re-numbered as Application No.43 of 1998) in which the above mentioned Purshish was filed, was permitted to be withdrawn by the W.C. Commissioner, Godhra, by order dated 11.1.2003. Subsequently, respondent No.1 filed an application, being Distribution Application No.10 of 2003. In the said application, respondent No.1, inter alia, prayed for withdrawal of the amount of Rs.25,000/- deposited by the appellant, pursuant to the settlement between the parties. The W.C. Commissioner, Godhra passed the impugned order dated 23-5-2005 upon the said application, whereby the appellant has been directed to pay an additional amount of Rs.36,236/-. Aggrieved by the said order, the appellant has approached this Court, by filing the present appeal.
6. Notice of admission was issued on 9-12-2005 and ad-interim relief was also granted. In spite of due service of notice of admission, respondent No.1,who is the main contesting respondent, has chosen not to appear, either personally or through advocate, throughout the proceedings.
7. Mr.M.D.Rana, learned advocate, appears for respondent No.2 and submits that the dispute does not pertain to respondent No.2, as it is a inter-se dispute between the appellant and respondent No.1,therefore, the court may pass appropriate orders.
8. Mr. Kunan Naik,learned advocate for M/s.Trivedi and Gupta,learned counsel for the appellant, has submitted that the impugned judgment and order is patently erroneous, unreasonable and lacking in jurisdiction. He has submitted that while passing the impugned order, the W.C. Commissioner has assumed powers with which he is not vested, and has not only held the settlement between the appellant and respondent No.1 to be null and void but has further directed the appellant to deposit an additional amount of Rs.36,236/- in spite of the fact that there was no prayer in the application of respondent No.1, to this effect. It is emphatically urged that the W.C. Commissioner has exercised powers of review which are not conferred upon him by the Statute and has chosen to review the order dated 11-1-2003 whereby the compensation application of respondent No.1 was permitted to be withdrawn, in view of the settlement between respondent No.1 and the appellant. The learned counsel for the petitioner has further urged that the impugned order has not been passed on the basis of any evidence on record, and amounts to passing an award in an application for distribution, wherein the only prayer made by respondent No.1 was for disbursement of the amount of Rs.25,000/- and, as such, the said order being arbitrary, unreasonable, lacking in jurisdiction and illegal, deserves to be quashed and set aside. Drawing the attention of the Court to the provisions of Section 22A of the W.C. Act, the learned counsel for the petitioner has submitted that the provisions of Section 22A could not have been pressed into service by the W.C. Commissioner while passing the impugned order, as the said provisions are to be applied when the claim application is decided on merits but, in the present case the appellant, while contesting the claim of respondent No.1 on merits, has entered into a settlement with the said respondent, and has deposited an amount of Rs.25,000/-, which has been accepted by respondent No.1,as full and final compensation. In this view of the matter, the impugned order could not have been passed by taking shelter of the provisions of Section 22A of the W.C. Act and rendering the settlement ineffective. On the basis of the above submissions, it is prayed that the impugned order be quashed and set aside, and the appeal allowed.
8.1 The learned counsel for the appellant has tendered the certified copies of Distribution Application No.10 of 2003 as well as the deposition of respondent No.1, which are taken on the record of the case.
9. I have heard the learned counsel for the appellant and respondent No.2, perused the averments made in the Memorandum of Appeal as well as the contents of the impugned order and other documents on record.
10. In order to decide the appeal, a brief background of the case, in the context of which the impugned order has been passed, would be necessary.
10.1 It is amply clear from the record that the appellant and respondent No.1 entered into a voluntary settlement before the Lok Adalat on 17-12-2002, and as a result thereof, a joint Purshish was filed by the appellant and respondent No.1 before the W.C. Commissioner on 11-1-2003. The contents of the said Purshish at Exh.42, which is annexed as Annexure F to the appeal, makes it evident that respondent No.1 has accepted Rs.25,000/- as full and final settlement of her claim of compensation against the appellant, and has stated that she does not have any further claim towards compensation. Further, it is stated by respondent No.1 that she does not want to pursue the compensation application, and orders may be passed, accordingly. As a consequence thereof, the W.C. Commissioner passed order dated 11-1-2003 (Exh.43), a copy of which is annexed as Annexure G at running page 37 of the paper book, whereby respondent No.1 was permitted to withdraw Compensation Application No.43 of 1998,thereby putting an end to the claim of compensation.
11. From the documents on record there remains no manner of doubt that respondent No.1 has accepted the settlement amount of Rs.25,000/- voluntarily, as full and final settlement of compensation for the death of her husband. After withdrawal of the Compensation Application, respondent No.1 filed Distribution Application dated 26-5-2003, wherein the only prayer is for disbursement of the amount of Rs.25,000/- which has been deposited by the appellant pursuant to the settlement. It is on this application that the W.C. Commissioner had passed the impugned order.
12. The contents of the impugned order reveal that instead of passing an order for disbursement of the amount of Rs.25,000/-, as prayed for by respondent No.1 in the Distribution Application, the W.C. Commissioner has, in purported exercise of powers under Section 22-A of the W.C. Act, not only declared the voluntary settlement arrived at between the appellant and respondent No.1 to be illegal, null and void but has also proceeded to set it aside, and directed the appellant to make payment of an additional amount of Rs.36,236/-. This order has been made in the absence of any prayer to this effect and without any averment or prayer indicating the dissatisfaction of respondent No.1 regarding the settlement between her and the appellant.
13. At this stage,it would be fruitful to advert to the provisions of Section 22A of the W.C. Act, which have been invoked by the W.C. Commissioner while passing the impugned order. The said Section is reproduced herein-below:-
22A.
Power of Commissioner to require further deposit in cases of fatal accident.-- (1) Where any sum has been deposited by an employer as compensation payable in respect of a workman whose injury has resulted in death, and in the opinion of the Commissioner such sum is insufficient, the Commissioner may, by notice in writing stating his reasons, call upon the employer to show cause why he should not make a further deposit within such time as may be stated in the notice.
(2) If the employer fails to show cause to the satisfaction of the Commissioner, the Commissioner may make an award determining the total amount payable, and requiring the employer to deposit the deficiency.
14. There is no doubt regarding the power of the Commissioner to require further deposit of amount in cases of fatal accidents, as stipulated in sub-section (1) of Section 22A, in cases where the W.C. Commissioner is of the opinion that the sum deposited by the employer as compensation, in respect of a workman whose injury has resulted in death, is insufficient. In such cases, the W.C. Commissioner is empowered to issue notice, stating reasons, and calling upon the employer to show cause why a further deposit should not be made by him. As provided in sub-section (2) of Section 22A, in cases where the employer fails to show cause to the satisfaction of the W.C. Commissioner,he may make an award determining the total amount payable, and requiring the employer to deposit the deficiency. The provisions of the above-quoted Section are, no doubt, beneficial and the W.C.Commissioner has been vested with certain powers. However, the said provisions come into play in cases where claims are being adjudicated on merits, and the employer has deposited an amount which, for reasons stated in the notice, is considered to be insufficient by the W.C.Commissioner. In the present case, the amount of Rs.25,000/- has been deposited by the appellant, pursuant to the settlement of the claim of compensation with respondent No.1, as full and final payment. Nothing more remains to be deposited as respondent No.1 has voluntarily accepted an amount of Rs.25,000/- as compensation and has withdrawn her compensation application as a result thereof. It is nobody's case that respondent No.1 has, at any point of time, disputed the settlement or has demanded a sum more than Rs.25,000/-. By filing the Distribution Application, respondent No.1 has prayed that the amount of Rs.25,000/- deposited by the appellant, be disbursed to her. This factual scenario has been totally ignored by the W.C.Commissioner, while passing the impugned order. The provisions of Section 22A would, therefore not be applicable to the present case as no further amount remains to be deposited by the appellant pursuant to the settlement with respondent No.1 and in view of the fact that the prayer made in the application is for disbursement of the amount of Rs.25,000/- only.
15. Not only has respondent no.1 withdrawn the compensation application, being satisfied by the settlement, the record does not reveal that at any point of time, the said settlement has been questioned by respondent No.1. As the compensation application had been withdrawn by respondent No.1 by filing the settlement Purshish, no claim remained to be adjudicated, at the time of passing of the impugned order. All these factual and legal aspects have been overlooked and ignored by the W.C.Commissioner, while passing the impugned order. Assuming powers under Section 22A, the W.C.Commissioner has proceeded to declare the voluntary settlement between the appellant and respondent No.1 as null and void , while directing the appellant to deposit an additional amount of Rs.36,236/-. In my considered view, the impugned order has been passed on a sheer misconception of facts and law, and by assuming jurisdiction not exercisable by the W.C.Commissioner, on the facts and circumstances of the case.
16. It is noticed that there is no prayer in the Distribution Application for review of the order dated 11-1-2003, permitting withdrawal of the compensation application. It is apparent from a reading of the impugned order that the same has been passed under the assumption that all powers of the Civil Court,as mentioned in the Code of Civil Procedure, are available to the W.C. Commissioner. The reasoning of the W.C. Commissioner in the impugned order is faulty, as Section 23 of the W.C. Act, confers limited powers under the Civil Procedure Code, for the purpose of taking evidence on oath, enforcing attendance of witnesses and compelling production of documents and material on record. In the absence of any prayer for review of the earlier order permitting withdrawal of the compensation application and as no suo motu powers of review are conferred by the Statute,the procedure adopted by the W.C. Commissioner while passing the impugned order, is patently erroneous, and arbitrary. The impugned order is,therefore, unsustainable in law. Not only this, but the direction to deposit an additional amount of Rs.36,236/- has been made without taking into consideration even an iota of evidence, whether oral or documentary in nature. On the other hand, the deposition of respondent No.1 clearly indicates that she has accepted the amount of Rs.25,000/- as settlement of compensation, voluntarily. In the above circumstances there was no occasion for the W.C. Commissioner to set aside the settlement arrived at between the appellant and respondent No.1, especially as the main application for compensation had already been withdrawn by respondent No.1 with the permission of the W.C.Commissioner.
17. For reasons stated herein-above,the impugned order is quashed and set aside and the appeal is allowed. The settlement between the appellant and respondent no.1 whereby Rs.25,000/- has been accepted by respondent No.1 as full and final payment of compensation is restored. If respondent No.1 has not already withdrawn the amount of Rs.25,000/- deposited by the appellant, she is at liberty to do so. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J) arg Top