Patna High Court
Basu Deo Rai vs Jagannath Singh on 14 May, 1986
Equivalent citations: 1987(35)BLJR269
JUDGMENT Ashwini Kumar Sinha, J.
1. The significant question involved in this appeal is whether the Commissioner under the Workmen's Compensation Act, by his order, dated 19-6-1980, could review his earlier order, dated 21-3-1980.
2. The learned Counsel for the appellant has submitted that the Commissioner has no power to review his previous order for compensation made by him even under the existing law. The learned Counsel for the appellant has further submitted that the Commissioner, under the Workmen's Compensations Act, 1923 (as amended up-to-date) exercises power only under certain provisions of the Code and Section 151 of the Code of Civil Procedure and the provisions of Order 47, Rule 1, CPC not being amongst them, the Commissioner does not possess any inherent power to review its earlier order.
3. On the other hand, the learned Counsel for the respondent has urged that the Commissioner has all the inherent power to do justice between the parties, if a mistake has been committed by him in his earlier order and the learned Counsel has thus submitted that, in the facts and circumstances of the present case, the Commissioner has rightly exercised his inherent power to review his previous order.
4. In order to appreciate the submissions of the learned Counsel for the respective parties, it is pertinent to state a few facts. The appellant filed an application before the Commissioner under the Workmen's Compensation Act and claimed a compensation of Rs. 11,200. The appellant's (applicant's) case was that he was employed by the respondent and, on 3rd July, 1975, he received personal injuries by accident arising out of and in course of his employment. The appellant's case was that he was working on machine of Oil Mill of the respondent and he sustained crash injuries in his right hand resulting in chopping off of his three right hand's fingers.
5. The respondent contested the claim and the case put up by the respondent was that the appellant had nothing to do with the operation of the machine and he expressly directed him not to operate the machine as he was unskilled. The respondent also put up a case that the appellant/applicant was not a workman. The further case of the respondent was that the appellant/applicant, in disobedience of the order of the respondent, tried to operate the machine and suffered injuries. In that view of the matter, the respondent's case, in nut-shell, was that the appellant was not entitled to any compensation for the injuries sustained. The respondent also put up a case that the appellant did not suffer injuries by accident in course of his employment.
6. The Commissioner, under the Workmen's Compensation Act, by his earlier order, dated 21-3-1980, held that the appellant was a workman as defined under the Workman's Compensation Act. He further held that the appellant/applicant sustained injuries while working on the machine. The respondent's case that the appellant/applicant was forbidden not to work on the machine and that he operated the machine with a zeal to learn to operate the machine was held to have not been established by the respondent. He further held that the respondent has not been able to bring it on the record any of the exceptions which could exonerate him from the liability of payment of compensation in the present case. The Commissioner held that the appellant/applicant was entitled to a compensation of Rs. 7,560 only, calculated on the basis of the percentage, as discussed in paragraph 10 of his judgment.
Thus, out of the amount of Rs. 11,200 as claimed by the appellant/ applicant; the Commissioner, by his order, dated 21-3-1980, allowed a compensation of Rs. 7,560 only.
7. The aforesaid order disallowed the applicant's/appellant's claim in part and thus was appealable Under Section 30(1)(a) of the Workmen's Compensation Act.
Such an appeal, if preferred, by the employer under Clause (a) of Section 30 (1) of the Act could be entertainable only if the memorandum of appeal was accompanied by a certificate of the Commissioner to the effect that the appellant (employer) had deposited with him the amount payable under the order appealed against.
8. Admittedly, the employer did not prefer an appeal. The reason seems to be obvious. The employer (respondent) did not like to deposit the amount payable under the order and no appeal was preferred.
9. However, on 25-4-1980, the respondent (employer) filed an application for rectifying the judgment stating, in the application, that a clerical error had crept in. In short, the ground, for rectifying the judgment, taken by the respondent (employer) was that the appellant/applicant could not be awarded compensation under the amended Act and the schedule and that it was only the old schedule which was in force on the date of the accident which was applicable in the present case. By this application, for rectifying the earlier judgment, the respondent (employer) founded his submission on the ground that the appellant/applicant could not, in law derive ihe benefit of the amended schedule (the schedule provided under Act No. 65 of 1976).
Thus, though the respondent (employer), by his application, dated 25-4-1980, prayed that it was a clerical error only and prayed for rectification of the earlier order, yet on the ground on which the rectification was sought for, it is more than obvious that this was an application for review of the court's earlier judgment. It is pertinent to note that respondent (employer) did not lable his application under any provisions of"law and yet prayed for rectification of the judgment stating that ths error in the judgment was only a clerical one.
10. On respondent's (employer's) own application, dated 25-4-1980, the court had applied a wrong schedule while awarding the compensation to the appellant/applicant, i.e. instead of applying the old schedule applicable on the date of the accident, the court had awarded compensation applying the new schedule provided under the amended Act (Act 65 of 76); thus, what was told to the court by the respondent (employer) was that the court's earlier judgment was erroneous in law and the court had committed a serious error of law by applying a wrong schedule while awarding the compensation to the applicant.
11. On appellant's own case it was not the case of clerical error rather it was a case of committing error of law on the part of the Commissioner.
It cannot be disputed that a pure and simple clerical error can always be corrected by the court but the court cannot sit over its own judgment, if the earlier judgment was erroneous in law such error committed by the court could only be corrected by the appellate court.
12. Having held that the application, dated 25-4-1980 was, in fact and in reality, an application for review of the earlier judgment, dated 21-3-1980, the Commissioner could not sit over its own earlier erroneous/ illegal judgment and hold that the court wrongly applied the new schedule provided under the amendment Act (Act 65 of 1976) and that it was, in fact, the old schedule which was applicable in the appellant/applicant case the accident having taken place on 3rd July, 1975, when the old schedule was in force.
13. The question then arises whether the Commissioner had power to review its earlier erroneous judgment.
Under Section 23 of the Workmen's Compensation Act (hereinafter referred to as the Act), the Commissioner exercises power of a court only under certain provisions of the Code of Civil Procedure. It is pertinent to quote here Section 23 of the Act.
Section 23. Power and procedure of Commissioners The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, and the Commissioner shall be deemed to be a Civil Court for all the purposes of Section 195 and of Chapter XXXIV of the Code of Criminal Procedure, 1898 (5 of 1898).
It is also pertinent to quote Section 6 of the Act:
Section 6. Review. Any half-monthly payment payable under this Act, either under an agreement between the parties or under the order of a Commissioner, may be reviewed by the Commissioner, on the application either of the employer or of the workman accompanied by the certificate of a qualified medical practitioner that there has been a change in the condition of the workman or, subject to rules made under this Act, on application made without such certificate.
(2) Any half-monthly payment may, on review under this Section, subject to the provisions of this Act, be continued, increased, decreased or ended, or if the accident is found to have resulted in permanent disablement, be converted to the lump sum to which the workman is entitled less any amount which he has already received by way of half-monthly payment.
It is also very pertinent to refer to Sub-section (8) of Section 8 of the Act, which deals with the variation of earlier order with regard to the distribution of the awarded amount as compensation. Sub-section (8) of Section 8 of the Act is as follows:
Section 8 (8): Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case:
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
14. Thus, a perusal of Section 23 (quoted above) and other various Sections of the Act shows that the Commissioner exercises the power of a court only under certain provisions of the Code of Civil Procedure as enumerated Under Section 23 of the Act.
The power of review with the Commissioner is only Under Section 6, i.e. the Commissioner can review any half-monthly payment payable under this Act either under the agreement between the parties or under the order of the Commissioner. Such a review may be made by the Commissioner either on the application of the employer or on the application of the Workman accompanied by the certificate of a qualified medical practitioner that there has been a change in the condition of the Workman or, subject to rules made under the Act, on an application made without such a certificate and such a half-monthly payment, on review under this Section, subject to the provisions of this Act, can be continued, increased, decreased or ended, or if the accident is found to have resulted in permanent disablement, be converted to the lump sum to which the workman is entitled less any amount which he has already received by way of half-monthly payments.
Thus, it is abundantly clear that only under a specified case, as envisaged Under Section 6 of the Act, the Commissioner can review his earlier order and in no other case.
15. The Commissioner, under the Act, has also been empowered to make variation in his earlier order but such a variation can be made only under the conditions as are embodied under Sub-section (8) of Section 8 of the Act and such a condition is that if the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied. Thus the power of variation of earlier order vested in the Commissioner is only with regard to the specified matter in Sub-section (8) of Section 8 of the Act and in no other case.
16. The order with which this Court is concerned in the present appeal did not make any distribution of compensation amongst the dependants; in other words, the order in question does not fall within the ambit of Sub-section (8) of Section 8 of the Act. The respondent (employer) had prayed to recall the earlier order on the ground that the earlier order was erroneous in law. Such a ground is neither envisaged Under Section 6 nor under Sub-section (8) of Section 8 of the Act. The Commissioner was asked, by the respondent's application, dated 25-4-1980, to quash the order erroneous in law, passed by him on 21-3-1980. The Commissioner, by the present order in question has held that he wpongly applied a new schedule provided under the amended Act (Act 65 of 1976) and that it was really the old schedule which was applicable in the facts of the present case and having held as such reviewed his earlier order and slashed down the amount of compensation thereby.
A bare perusal of Section 6 and Sub-section (8) of Section 8 of the Act abundantly make it clear that the language of these Sections do not confer any such power upon the Commissioner and I hold that the illegality of the earlier order passed by the Commissioner does not fall within the ambit of either Section 6 or Sub-section (8) of Section 8 of the Act; in other words, if the earlier judgment was erroneous in law, the Commissioner was not vested with the power to review that illegal order; which could be set aside modified only by the appellate court. There is another aspect of the matter. I have already referred to Section 23 of the Act, which has been quoted above. A perusal of the various Sections of the Workman's Compensation Act shows that the Commissioner exercise the power of the court only under certain provisions of the Code and neither Order 47 nor Section 151 of the Code is one of them. Thus, there is no inherent power with the Commissioner to review his earlier judgment which was not in accordance with Law.
I have already held above that the ground on which a review was sought by the respondent (employer), in the facts and circumstances of the case, was not a clerical mistake at all and the review sought for was on the ground that the earlier judgment was not in accordance with'law. Thus, I hold that the Commissioner does not, therefore, possess any such inherent power as is contemplated by Section 151 of the Code of Civil Procedure nor does the Commissioner possesses power to review under Order 47 Rule I of the Code of Civil Procedure. The power to review and vary the earlier order, though is there, as already stated above, but they are only under specified circumstances as embodied Under Section 6 and Sub-section 8 of Section 8 of the Act and under no other circumstances.
Thus I hold that there is enough force in the submission advanced by the learned Counsel for the appellant.
17. The learned Counsel for the respondent (employer;, on the other hand, has vehemently urged that every court has inherent power to do justice and in the present case apparently a mistake in law was committed by the Commissioner in his earlier order and hence the Commissioner has all the inherent power to correct the same.
The learned Counsel for the respondent (employer), however, very fairly conceded that the Workmen's Compensation Act, 1923 (as amended) does not provide for a review under such a circumstance nor does the Bihar Workmen's Compensation (Occupational Disease) Rules, 1962 provide for the same; yet the learned Counsel for the respondent (employer) contended that the injustice done having been corrected, it must be held that the court had all its inherent power to undo the injustice done.
18. In order to support his submission, the learned Counsel relied upon the case of K.V. Aboo v. Commissioner of Workmen's Compensation and Anr. 1977 (2) L.L.J. 134., the case of Bajrang Rai and Ors. v. Ismail Mian and Ors. 1978 B.B.C.J. 428 (F.B.). and in the case of The Newabganj Sugar Mills Co. Ltd. and Ors. v. The Union of India and Ors. 1976 S.C. 1152.
19. The learned Counsel for the respondent (employer), as already stated above, submitted that the principles of inherent power to remedy in justice applies to quasi-judicial authority also and submitted that the procedure is permissible which is not specifically prohibited and the learned Counsel relied, on principles, on the case of K.V. Aboo v. The Commissioner Workmen's Compensation and Anr. (supra). In that case the question was whether some body could be added to the proceeding. In the circumstances of that case it was held that while the provision of Order 1, Rule 10 of the Code as such was not made specifically applicable to the proceeding under Workmen's Compensations Act and the Rules framed thereunder, yet there was no prohibition in the Act or the Rule framed thereunder that a person cannot be brought on the record subsequent to the filing of the application. This case is wholly inapplicable to the facts of the presesent case and is distinguishable. This case was not a case of review. The learned Judge, in that case, as already slated above, held that, in law, all procedure is permissible which is not specifically prohibited and with this ratio held that the provision of Order 1, Rule 10 of the Code could be made applicable to the proceeding under the Workmen's Compensation Act even though that was not specifically mentioned in Section 23 of the Act. With great respect to the learned Judge, I do not agree to the view taken by him. The Workmen's Compensation Act is an Act complete by itself, it specifically mentions as to which of the provisions of the Code of Civil Procedure will be applicable in the proceeding under Workmen's Compensation Act. This clearly shows that all other provisions which are not specifically mentioned in Section 23 are not applicable to the proceedings under the Workmen's Compensation Act. If the view taken by the learned Judge in the cae of K.V. Aboo v. The Commissioner, Workmen's Compensation and often (supra), can be said to be a correct view then the procedure under the Code not specifically prohibited Under Section 23 will fall within the ambit of the Act. In my opinion, the scope of Section 23 of the Act cannot be enlarged to such an extent.
The other case relied upon by the learned Counsel for the respondent was the case of Bajrang Rai and Ors. v. Ismail Mian and Ors. (mprn). At the out set it must be said that the learned Counsel for the respondent has placed reliance upon this case under a total misconception. This case dealt with the exercise of power Under Section 151 of the Code of Civil Procedure and dealt with a case where an application under Order 9, Rule 13 or under Order 41, Rule 19 was dismissed for default, whether the application for restoration of the application was maintainable Under Section 151, CPC
20. I have already held above that Section 151, CPC is not mentioned in Section 23 and thus the power Under Section 151, CPC could not be exercised by the Commissioner, muchless to review his earlier judgment which was erroneous in law, i.e. not in accordance with law. This case of Bajrang Rai and Ors. v. Ismail Mian and Ors. (supra) does not deal with the case under Workmen's Compensation Act and thus the principle decided in that case is on the facts of that particular case.
Then remains the case of Newabganj Sugar Mills Co. Ltd. and Ors. v. The Union of India and Ors. (supra). This case deals with a case under Essential Commodities Act. This case does not deal even with the scope of Section 151, Cr.PC This case, it is apparent, has been relied upon by the learned Counsel for the respondent (employer) under a total misconception. Thus neither of the three cases, referred to above, relied upon by the learned Counsel for the respondent (employer) support the contention advanced by the learned Counsel for the respondent.
21. Thus, I hold that the submission advanced by the learned Counsel for the respondent is without any substance.
22. In the result, this appeal is allowed and the order, dated 19-6-1980, passed by the Commissioner reviewing his earlier order, dated 21-3-1980 is set aside.
However, in the facts and circumstances of the case, there will be no order as to costs.