Bombay High Court
Rajiyabi Cosman Sayi And Anr. vs Mackinon Machinazie And Co. Pvt. Ltd. on 10 April, 1969
Equivalent citations: AIR1970BOM278, (1970)72BOMLR358, AIR 1970 BOMBAY 278, 1970 MAH LJ 705, 1970 ACJ 350, (1970) 2 LABLJ 320, 72 BOM LR 358
JUDGMENT Nathwani, J.
1. This is a Letters Patent Appeal by original applicants against the order of Mr. Justice Chitale dated 28th February, 1966, setting aside the order of the Commissioner awarding Rs. 4,000 as compensation under the Workmen's Compensation Act, 1923 hereinafter referred to as "the Act".
2. The facts of the case are as follows:--The original applicant No. 1 is the widow of one Oosman Baba, who was employed as a seacunny on a ship named S. S. "Caltex London" belonging to M/s. British Industries Navigation Company Ltd. of which the original opponents are the Agents. On December 15, 1960, Oosman Baba signed the articles and boarded the said ship "Caltex London". While working on the said ship as a seacunny Oosman Baba fell ill on January 20, 1961, when the said ship was at Bahrain and was immediately taken to Awali Hospital, Bahrin. On admission he complained of chest pain for the previous week with cough and expectoration. He was treated for his illness in the hospital. On or about 31st January, 1961, he showed signs of tuberculous bronchopenumonis with suggestion of pericardial effusion. Subsequently his condition slowly deteriorated and, ultimately, on 28th February, 1961 he died in the said hospital. The deceased left him surviving as his heirs his widow and a minor son being respectively the original first and second applicants.
3. On May 24, 1961, the applicants filed application No. 336/B-42 of 1961 in the Court of the 2nd Additional Commissioner at Bombay claiming Rs. 4,500 as compensation in respect of the injury caused to the deceased by accident arising out of and in the course of his said employment on S. S. Caltex London.
4. Before the learned Commissioner the parties led evidence to show the nature of work done by the deceased as a seacunny on the said ship. From the evidence of two witnesses, namely, Abbas Gulam Hussain and Martin Pinto, it was shown that the deceased had to work for 12 hours as seacunny, that he had to work for four hours at an interval of four hours during night and day, that during his work the deceased had to stand throughout, that in the wheelroorn where the deceased worked there used to be smell of oil and at the time of loading of oil the fumes of smell became suffocating. The appellant's case was that the duties of the deceased as seacunny were hard, particularly as he had to stand during day and night for 12 hours in the course of his duties.
5. On the material placed before him the learned Commissioner made his finding that the deceased died of injuries due to accident arising out of and in the course of his employment with the opposite party and observed as follows :--
".....In the facts of this particular case, it is more than plain that the deceased workman who was suffering from the two ailments namely, pulmonary tuberculosis and heart trouble had a sudden attack while on duty and as such the employment can reasonably be said to be contributory cause or that it accelerated his death. There is no evidence at all to show that on 20th January 1961, while he had an attack he was not on duty and in any case, therefore, it can also easily be said that the death of the deceased was not only due to the disease but the disease coupled with the employment." xx xx x The Commissioner, in making the above finding, followed the ratio of the decision of this Court in the leading case of Laxmibai v. Bombay Port Trust, .
6. Being aggrieved by the said order of the learned Commissioner the opposite party filed an appeal to this Court. The said appeal came up for hearing before Mr. Justice Chitale on 28th February 1964 when the Counsel on behalf of the applicants was absent and the learned Judge decided the appeal ex parte against the applicants. However, later at the instance of applicant's Counsel and with the consent of the Counsel for the Opposite party, the learned Judge reheard the appeal on 2nd March, 1966. The learned Judge held that the remark in the medical report which indicated that the deceased had pain in the chest with cough for one week before 20th January, 1961 would not be enough to establish a causal connection between the course of employment and the illness which ultimately resulted into the death of the deceased, as pain in the chest may be due to several reasons. In the result the learned Judge allowed the appeal, set aside the order of the learned Commissioner and dismissed applicants' claim for compensation.
7. The present Letters Patent Appeal is filed against the said order passed by Mr. Justice Chitale.
8. At the outset Mr. Noronha, the learned Advocate on behalf of the Opposite party-respondents raised a preliminary objection. He contends that there is no appeal to the High Court under the Act against an order of the Commissioner except under Section 30 of the Act, that the order passed by Mr, justice Chitale under the said Section 30 is not a judgment within the meaning of Clause 15 of the Letters Patent, and therefore the present appeal is not maintainable. He developed his point by arguing that the proceedings before a Commissioner under the Act are in the nature of an arbitration and his decision an award; that he is not a Court; that the proceedings in appeal before the High Court under Section 30 of the Act are a mere continuation of the original proceedings before the Commissioner and do not change their original nature and therefore the order passed by the learned Judge does not amount to a judgment. In support of his contention he relied upon decisions in Secretary of State for India v. Geeta, ILR (1939) Nag 124 = (AIR 1939 Nag 122) and Khairunissa v. Municipal Corporation of the City of Bombay . On the other hand, it is contended on behalf of the applicants that an order made by a single Judge of the High Court in disposing of an appeal under Section 30 of the Act is a "judgment" and not a decision given by him, merely as a persona designata, that looking to the provisions of the Act and the rules made thereunder as a whole, the Commissioner is not an arbitrator and he does not exercise powers of an arbitrator but acts as a Court, and his decision is a judgment of a Court, In support of his contention Mr. Kalal, learned Advocate for the appellants mainly relied on one unreported and two reported decisions of this Court and four decisions of other High Courts, viz. Raipur Manufacturing Co. v Chooti Gantoli in L. P. Appeal No. 2 of 1952 decided on 3rd September, 1951, Mohanlal Prabhuram v. The Fine Knitting Mills Co., 62 Bom LR 195 = (AIR 1960 Bom 387), Santoline Fernan-des v. Mackinon Mackenzie and Co., , Dirji v. Goalin, AIR 1941 Pat 65 (FB), Dirji v. Goalin, AIR 1942 Pat 33, Abdul Rashid v. Hanuman Oil and Rice Mills, AIR 1951 Assam 88 and Firm G. D. Gianchand v. Abdul Hamid, AIR 1938 Lah 855.
9. The question, therefore, arises whether the order passed by a single Judge of the High Court under Section 30 of the Workmen's Compensation Act is a "judgment" within the meaning of Clause 15 of the Letters Patent. The answer to the question turns upon answer to the further question whether a Commissioner under the Act is a Court and his order a judgment. In order to answer these questions it may be convenient before referring to the authorities relied upon by the parties to examine the relevant provisions of the Act and the rules made thereunder and see whether the authority created under the Act, namely, Commissioner, who adjudicates upon disputes between workmen and employees is a Court.
10. The Act is enacted to provide for payment by certain classes of employers to then workmen of compensation for injury by accident. Section 3 of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of Chapter II. Sub-section (5) of Section 3 lays down that nothing in the Act shall be deemed to confer any right to compensation on the workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury if he has instituted a claim to compensation in respect o£ the injury before a Commissioner, or if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of the Act. It would be seen that under Section 3(5) a workman, as an alternative to accepting compensation under the Act, may resort to any other remedy available to him in a Civil Court against his employers, but he cannot have Doth the remedies. Section 4 provides for determining the amount of compensation as specified therein. Section 4A(1) says that compensation shall be paid as soon as it falls due. Section 10 requires a notice of the accident to be given in a prescribed manner before a claim for compensation can be entertained by a Commissioner, Chapter III of the Act deals with Commissioner, Section 19(1) requires questions arising under the Act, inter alia, as to the liability of any person to pay compensation, or as to the amount or duration of compensation, in default of agreement to be settled by a Commissioner. Section 19(2) provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under the Act. Under Section 20, Commissioners are to be appointed by the State Government. Section 21(1) provides for the venue of proceedings and transfer of matters from one Commissioner to another. Section 22(1) provides that no application for settlement of any matter shall be made unless and until some question has arisen between the parties in connection therewith which they have been unable to settle by agreement. Under Section 22(2) an application is to be made to a Commissioner in a prescribed form and certain particulars are given therein. Under Section 22A the Commissioner may require in case of an injury resulting in dealt further deposit by an employer as compensation and if the employer fails to show cause to the satisfaction of the Commissioner why he should not be made to do so, the Commissioner may make an award determining the total amount payable and require the employer to deposit the deficiency. Under Section 23 the Commissioner has all the powers under the Code of Civil Procedure, for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and compelling the production of documents and material objects. Section 24 permits, inter alia, a legal practitioner to make appearance, application or to do an act required to be made or done by any person before or to a Commissioner on behalf of such person. Under Section 25 the Commissioner has to make a brief memorandum of the substance of evidence of every witness and such memorandum shall be written and signed by the Commissioner with his own hand and shall form part of the record, Section 26 provides that costs of the proceedings shall be in the discretion of the Commissioner. Section 27 gives power to the Commissioner, if ha thinks fit, to submit any question of law for the decision of the High Court and, if he does so, he has to decide the question in conformity with such decision. Sections 28 and 29 deal with the registration of agreements where question of compensation has been settled as being payable between the parties and the effect or failure so to register an agreement. Section 30 provides for an appeal to the High Court from the orders of Commissioner enumerated therein; the first proviso, however, lays down that no appeal shall lie against any order unless a substantial question of law is involved in the appeal; the second proviso prohibits an appeal in which the parties have agreed to abide by the decision of the Commissioner or in which the order of the Commissioner gives effect to an agreement come to by the parties; and under the last proviso no appeal lies by an employer under Clause (a) unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Section 30(2) provides sixty days' period for an appeal against an order of a Commissioner. Under Section 31 the Commissioner may recover as an arrear of land-revenue any amount payable by any person under the Act. Section 32 empowers the State Government to make rules to carry out the purposes of the Act. Under Section 32(2)(c) the State Government is authorised to make rules prescribing the procedure to be followed by the Commissioner in the disposal of cases under the Act and by the parties in such cases.
11. The Government of India has framed rules under Section 32 of the Act. Rules 19 to 43 in Part V of the said Rules lay down the procedure to be followed by the Commissioner in disposing of cases under the Act. The form of application to be made to the Commissioner for compensation is prescribed. It is form 'F'. Rule 20 requires the application to be signed and verified by the applicant. Rule 21 lays down the procedure for production of documents on which relief is based or which are to be tendered in evidence by the applicant. Rules 23, 24 and 25 deal with the examination of applicant by the Commissioner and summary dismissal of the application in certain cases. Rule 26 requires the Coinmissioner to send a copy of the application to the party from whom the applicant claims relief together with a notice of the date on which he will dispose of the application, Rule 27 deals with filing of a written statement by the opposite party and any such written statement is to form part of the record. Under Rule 28, the Commissioner has to ascertain upon what material propositions of fact or law the parties are at variance, and has thereupon to proceed to frame and record issues Upon which the right decision of the case appears to him to depend. Rule 30 requires the Commissioner to maintain under his hand a brief diary of the proceedings of the application. Rule 31 provides that the Commissioner shall record reasons if he finds it impossible to dispose of the application at one hearing and postpone the hearing. Rule 32 is important and says that the Commissioner in passing orders shall record concisely in a judgment his finding on each of the issues framed and his reasons for such finding. Rule 33 provides for summoning of witnesses by the Commissioner. Rules 35, 36 and 37 provide for local inspection of a place by the Commissioner and the procedure to be followed by him in connection therewith. Rule 41 provides that save as otherwise expressly provided in the Act or the Rules certain provisions of the First Schedule to the Code of Civil Procedure, namely, those contained in Order 5, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXIII, Rules 1 and 2, shall apply to the proceedings before the Commissioner.
12. From the above summary of relevant provisions relating to the procedure to be followed by a Commissioner, it would be seen that the Act provides for an expeditions settlement of disputes as to the liability of employer to pay compensation and payment or recovery of the same. Section 19(2) ousts the jurisdiction of the Civil Court to decide or settle any question required to be decided or settled by a Commissioner or to enforce any liability incurred under the Act. Does, then, a Commissioner in deciding any dispute between the parties under the Act as a Court? In other words, does he discharge his duties and functions in the manner in which a Civil Court is expected to discharge its functions P In order to answer the question, it is necessary to consider the attributes of a Court, There are authoritative pronouncements by the Supreme Court on this point in three cases, i.e., Brajnandan Sinha v. Jyoti Naraen, and Jugal Kishore V. Sitamarhi Central Co-operative Bank, . In the last case of Jugal Kishore the question that fell for decision was whether the Assistant Registrar of Co-operative Societies under the Binar and Orissa Co-operative Societies Act, 1935, was a Court within the meaning of the Contempt of Courts Act, 1952. The Supreme Court referred to authorities like Halsbury's Laws of England (Third Edition -- Vol. 9, page 342) and its two earlier decisions in and Virindar Kumar Satyawadi v. The State of Punjab, and cited certain passages therefrom as providing the essential tests that distinguish a Court from a quasi-judicial tribunal, and applying the same to the provisions of the Bihar and Orissa Co-operative Societies Act held that the Assistant Registrar was a Court. The Supreme Court relied, inter alia, on the following passages pp. 170-173 (of SCR)= (at p. 1499 of AIR):
"Originally the term "Court" meant, among other meanings, the Sovereign's palace: it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign. All tribunals, however, are not Courts, in the sense in which the term is here employed, namely to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction." (Halsbury's Laws of England, 3rd Edition, Vol. 9, p. 342).
x x x x x "It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement."
x x x x x "It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act, is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court."
x x x x x "A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites:-- (1) the presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling on any disputed question of law."
13. Applying then, the above tests to the provisions of the Act it has to be seen whether a Commissioner adjudicating disputes under Section 19 is a Court. Now, the disputes so required to be settled by a Commissioner are disputes as to the liability of any person to pay compensation or as to the amount or duration of compensation between an employer and his workmen or his legal representative, and the rules of procedure require an applicant to file before a Commissioner a written application and an opponent a written statement thereto. Further the Commissioner has to frame and record issues on which a right decision of the case depends and has to record evidence, documentary and oral, which may be tendered by the parties; he has to maintain a brief record of the proceedings, and finally pronounce his "judgment" recording findings on each of the issues and his reasons therefor. It is also to be observed that the Commissioner has almost all the powers which an ordinary Civil Court would have of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to the conclusion on the basis of evidence adduced and arguments advanced, and that under Section 24 parties can be represented before him by legal practitioners. Under Section 27 the Commissioner has also the power to submit any question of law for the decision of the High Court. The Commissioner can recover as arrear of land revenue any amount ordered to be paid by him so that the result amounts to a decree pronounced by a Court of law. Section 19(2) ousts the jurisdiction of the Civil Court to decide any question required to be decided by the Commissioner under the Act. It is therefore quite clear that the proceedings before him are not of the nature of arbitration but approximate closely to the proceedings in a Civil Court, and his ad Judication is a Judgment recording his finding on each of the issues and his reasons therefor, and that in adjudicating upon a dispute under Section 19 of the Act the Commissioner is, to use the language of the Supreme Court in Jugal Kishorc's case, "to all intents and purposes a Court discharging the same functions and duties in the same manner as a Court of law is expected to do."
14. In support of his contention that the Commissioner under the Act is not a Court Mr. Noronha has strongly relied on the Division Bench case of Nagpur High Court in ILR (1939) Nag 124= (AIR 1939 Nag 122). No doubt, this authority is directly in point and supports his contention. In that case the question arose whether the decision of a Judge of the High Court under Section 30 of the Act was a judgment within the meaning of clause 10 of the Letters Patent, corresponding to clause 15 of the Letters Patent for the High Court of Bombay. The learned Chief Justice who delivered the Judgment observed that answer to the said question turned upon the nature of the adjudication and upon the meaning of the word "judgment" in clause 10 of the Letters Patent and proceeded as follows: p. 126 (of ILR) = (at p. 123 of AIR):
"..... Section 22A of the Workmen's Compensation Act relates to what is there called an award and what is elsewhere referred to as an order. It is quite plain, looking at the Act as a whole, that, as in England, these disputes are settled in a different way from civil cases and in a way that approximates very closely to, if not exactly the same as, an arbitration. The rules of procedure are not those laid down in the Civil Procedure Code which is applicable only as regards certain matters. For example, under Section 23 of the Act Commissioner has all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence on oath .....
and of enforcing the attendance of witnesses and compelling the production of documents and material objects. The powers of appeal are provided by Section 30 which provides that from certain order (of which this is one) an appeal shall lie to the High Court. Nothing is said apart from that as to the right to appeal. .... This position is not unlike that which arose under the Land Acquisition Act before its amendment."
The learned Chief Justice, thereafter, following the reasoning in a land acquisition case, i.e., Rangoon Botatoung Co. v. The Collector, Rangoon, (1912) ILR 40 Cal 21 (PC) and other cases held that the decision of the Commissioner was not a judgment within the meaning of clause 10 of the Letters Patent from which further appeal lay to the High Court.
15. From the passage quoted above, it ill be observed that the learned Chief Justice relied on Section 22A of the Act where the word "award" has been used and on the fact that Rules of the Civil Procedure Code were not made applicable to the proceedings before a Commissioner and that the right to appeal under the Act was only that provided under Section 30. It is however important to note that throughout the whole Act it is only at one place, i.e., in Section 22A, that the word "award" is used to describe the order made by the Commissioner but otherwise his decision is throughout referred to as an order. In this connection reference has already been made to Rule 32, which provides that the Commissioner in passing order shall record concisely in a Judgment his finding on each issue and his reasons for such findings. The provisions for framing issues by a Commissioner, recording finding on each of them and giving reasons for such finding make the proceedings before the Commissioner quite different from that before an arbitrator who is not bound to frame issues or give reasons for his award. Further though Rule 41, makes certain provisions and not the whole of the Code of Civil Procedure applicable to a proceeding before a Commissioner, still, as already seen, the procedure for adjudicating claims under the Act and rules thereunder is substantially assimilated to that of a trial of a suit in a Civil Court, Again though a limited right of appeal is given under Section 30 of the Act, it is so because the object of the Act is to provide expeditious and summary settlement of disputes, and such restricted right to appeal cannot derogate from a Commissioner being a Court if he substantially performs the same functions and duties in the same manner as a said Court of law is expected to do. Further, while the learned Chief Justice generally expressed the view that looking at the Act as a whole the disputes were settled in a different way from civil cases and in a way that approximates very closely to an arbitration, there is no discussion of the relevant provisions of the Act and the rules in support of such a view. We have already summarised above the procedure to be followed by a Commissioner and the parties in case of a dispute which shows that in adjudicating upon disputes between an employer and his workmen, Commissioner functions in the same manner as a Court does and, therefore, with respect to the learned Judges, it cannot be said that the disputes are settled in a way different from civil cases and in a way that approximates to an arbitration. The Nagpur case does not appear to have been followed in any other reported case. At least our attention is not drawn to any such case. For these reasons, we are unable to agree with the view of the Nagpur High Court that a Commissioner is not a Court.
16. The next case relied upon by the opposite party is a Division Banch case of this Court in (1965) 67 Bom LR 903. In this case one Siddiki died on February 10, 1960, as a result of a collision between a municipal car in which he was riding and a bus belonging to the Bombay Electric Supply and Transport Undertaking of the Bombay Municipal Corporation. On March 4, 1960, his widow and her children gave separate notices to the General Manager and the Municipal Commissioner claiming compensation in connection with the said accident. In April 1960, the widow and her two children filed application before the Motor Accident Claims Tribunal inter alia, against the Municipal Corporation, the Municipal Commissioner and the General Manager for compensation for negligence of the bus-driver which caused the said accident. On behalf of the Corporation a preliminary objection was raised before the Tribimal that the application was incompetent inasmuch as a notice as required by Section 527 of the Bombay Municipal Corporation Act, 1888, was not given. The Tribunal upheld the said objection and dismissed the application. The applicants challenged the said decision in appeal before this Court. It was contended on their behalf that the word "suit" in Section 527 meant a proceeding which is commenced by a plaint in a Civil Court, while it was argued on behalf of the Corporation that it meant only legal proceeding in respect of a civil right wherever taken. Thus it raised a question of interpretation of Section 527, which, so far as material, provides that no suit shall be instituted against the Corporation or the Commissioner or the General Manager in respect of any alleged neglect or default in the execution of the Act until the expiration of one month next after a written notice as specified therein is left or delivered as mentioned therein. Mr. [Justice Patel who delivered the judgment considered the object to be achieved by the said Section 527 and its terms, particularly, clauses (g) and (h) of Sub-section (1) which refer to "a suit or other legal proceedings and held that the word "suit" must be given ordinary meaning in preference to its wider dictionary meaning. The learned Judge then proceeded to observe that the Bench was also not satisfied that the Tribunal under the Motor Vehicles Act acts as a Court. The contention on behalf of the Corporation in this behalf seems to have been that prior to 1960 a suit could be filed for compensation for loss suffered by defendants, and only in 1960 the said Tribunal was constituted to decide such claims and therefore the applications before the Tribunal having replaced the suits should be considered as suits and the Tribunal was a Court. Mr. Justice Patel rejected the said contention observing that the constitution of Tribunal was not governed by any legislation applicable to Civil Court, The learned Judge further observed that under the Motor Vehicles Act the resultant order is not even called a decree, and that under Section 110-C of the said Act the Tribunal is entitled to follow such summary procedure as it thinks fit subject to the rules that may have been made. In the judgment there is a reference to the rules of procedure framed under the Act which enable the Tribunal to follow the provisions of the Civil Procedure Code only where no specific rules exist. In the result it was held that the Tribunal was not a Court.
17. Mr. Noronha has contended that the Motor Vehicles Act (IV of 1939) is pan mate-ria with the Workmen's Compensation Act, and therefore the Commissioner, like the Motor Accident Claims Tribunal, is not a Court. Now, it appears to us that the Bench in Khairunnissa's case, ((1965) 67 Bom LR 903) having come to the conclusion that the word "suit" in Section 527 must be given its ordinary meaning, namely, a proceeding instituted by filing a plaint, the decision could have rested there. The Court, however, as already observed, proceeded to consider Corporation's further contention that the Tribunal was a Court and rejected it. Assuming that the relevant provisions of the Motor Vehicles Act and the rules thereunder are similar to that of the Workmen's Compensation Act and the rules thereunder, we are, with respect, bound to follow the ratio of the said Supreme Court cases in preference to the authority of Khairunnissa's case, (1965) 67 Bom LR 903.
18. We may next turn to the cases cited on behalf of the applicants to show that the Commissioner is a Court. The first case of this Court in Raipur Manufacturing Co., was a Letters Patent Appeal against the order of Mr. Justice Gajendragadkar (as he then was) dismissing an appeal under Section 30 of the Act. A Division Bench of this Court dismissed the said appeal observing that there were no reasons for interfering with the decision of the learned Commissioner. From the judgment it is apparent that no objection was raised that no appeal lay under clause 15 of the Letters Patent. la another case of this Court in Santoline Fernandes, a Civil Revision Application was filed under Section 115 of the Civil Procedure Code against an order of the Commissioner. Mr, Justice Patel set aside the said order. In this case also, however, no question was raised whether the authority, namely, Commissioner, is a Court or not. In 62 Bom LR 195= (AIR 1960 Bom 387), however, the question directly arose before the Court. Mr. Justice Naik held that the Commissioner was a Court subordinate to the High Court and consequently a revision application lay to the High Court from the order of the Commissioner. In coming to the above conclusion, Mr. Justice Naik relied upon two decisions of the Patna High Court in AIR 1941 Pat 65 (FB) and AIR 1942 Pat 33 and two other decisions of the Assam High Court and Lahore High Court respectively in AIR 1951 Assam 88 and AIR 1938 Lah 855. Mr. Noronha on behalf of the opposite party criticised Mohanlal's case, 62 Bom LR 195= ( AIR 1960 Bom 387) on the ground that the Nagpur case in ILR (1939) Nag 124= (AIR 1939 Nag 122) was not considered and further there is no discussion of the essential conditions to be fulfilled in order to constitute a Tribunal a Court, We have, already considered both these points and see how they do not help the opposite party. We are, with respect, in agreement with the decision in Mohanlal's case, 62 Bom LR 195= (AIR 1960 Bom 887).
19. We, therefore, hold that the Commissioner under the Workmen's Compensation Act is a Court and his decision a judgment and not an award and that an order passed in appeal by the High Court under Section 30 of the Act is a "judgment" within the meaning of clause 15 of the Letters Patent.
20. As regards the merits of the appeal, we find that the Commissioner had come to the conclusion that there was evidence to find that the deceased died of injuries due to accident arising out of and in the course of his employment with the opposite party. Now an appeal under Section 30 lies to this Court only on a substantial question of law. Mr. Justice Chitale, however, took the view that there was not enough material to establish causal connection between the course of employment and the illness which ultimately resulted into the deceased's death. With respect the question whether there is sufficient material to establish the particular fact, namely, causal connection between the course of employment and illness is a question of fact and does not raise any question of law. In holding that the death of the deceased was not only due to the disease but to the disease coupled with the employment, the Commissioner has rightly followed the principle laid down in . In our opinion, therefore, the learned Judge was not justified in interfering with the finding of fact made by the Commissioner. We, therefore, allow the appeal, set aside the order dated 28th February, 1966 and restore the order passed by the learned Commissioner to pay compensation of Rs. 4,000/- to the applicants and costs of the application. Respondents also to pay costs of this appeal to the appellants.
21. Appeal allowed.