Himachal Pradesh High Court
Jagar Nath And Anr. vs State Of Himachal Pradesh And Ors. on 2 December, 1996
Equivalent citations: 1998ACJ908
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Kamlesh Sharma, J.
1. Appellant No. 1, Jagar Nath, is the father and appellant No. 2 Nirmla, is the widow of the deceased, Mohan, who was working as beldar in Lift Irrigation Scheme, Killor Pump House at Paonta Sahib. On 5.9.83, he was deputed to go from Killor Pump House to Khodri Pump House. Accordingly when he was on his way to Khodri Pump House, due to heat and fatigue he fell down from his bicycle on the road at about 4.30 p.m. and died.
2. The appellants filed application under Section 4 of the Workmen's Compensation Act, 1923 (hereinafter called 'the Act') for awarding them compensation alleging that said Mohan had died during the course of his employment and they are entitled to compensation on the basis of his monthly wages of Rs. 750/-. The application was opposed by respondent No. 1 on the preliminary objection that the appellants were not entitled to any compensation as the workman had not died during the course of employment or while performing duties with them. On merits, it was admitted that Mohan was working as daily paid beldar at Killor Pump House up to 5.9.1983 on the wages of Rs. 15/- per day.
3. On the pleadings of the parties, the following issues were framed:
(1) Whether the deceased workman died during the course of employment of respondent as alleged? OPP.
(2) Whether the deceased workman was drawing a salary of Rs. 750/- p.m. OPP.
(3) Whether the application of the petitioners is non-maintainable as alleged? OPR.
(4) If issue Nos. 1 and 2 are decided in affirmative, to what amount of compensation the petitioners are entitled?
(5) Relief.
4. The parties adduced their evidence on the basis of which Commissioner, Workmen's Compensation decided issue Nos. 1 and 2 in favour of the appellants holding that Mohan had died during the course of employment of respondent No. 1 and at the time of his death he was earning Rs. 15/- per day, that is, Rs. 450 per month. Accordingly, he awarded the following amount:
(i) Amount of compensation : Rs. 38,122/-
(ii) Interest at the
rate of 6 per cent
w.e.f. 6.9.1988
to 15.6.1993 : Rs. 10,953/-
(iii) Penalty at the
rate of 50 per
cent on the basic
amount under
Section 4-A(3)
of the Act : Rs. 19,061/-
______________
Total : Rs. 68,136/-
______________
5. It was ordered by the Commissioner for Workmen's Compensation that if the respondent No. 1 fails to deposit the amount of Rs. 68,136/- within a period of four weeks, it will be liable to pay interest at current bank rate on the total amount of compensation till the date of payment. It is not in dispute that respondent No. 1 did not challenge the award dated 25.9.1993 and deposited the award amount on 14.2.1994.
6. Thereafter, the appellant moved an application for withdrawal of the award amount on 7.3.1994 stating that appellant Jagar Nath was holding general power of attorney on behalf of appellant Nirmla to collect her share of the award amount. A copy of the general power of attorney was also filed along with the application. When no order was passed on the said application, the appellant sent legal notice through their counsel Mr. I.S. Chauhan, Advocate, Paonta Sahib, on 12.6.1994 to Mr. S.K. Gupta, the then Commissioner, Workmen's Compensation, before whom the application for release of the amount was pending, stating that if no payment is made to them within a period of 60 days, they will be constrained to file civil suit for mandatory injunction in the competent Court at his risk and costs. Ultimately, respondent No. 3 passed the impugned order dated 22.10.1994 whereby the application for release of award amount was rejected and award dated 25.9.1993 was recalled declaring it as non-existent and the award amount deposited by respondent No. 1 was refunded to the Department under Section 8 of the Act.
7. From the perusal of the impugned order Annexure C, it appears that from the general power of attorney, which was annexed along with the application for release of the amount, respondent No. 3 gathered that appellant No. 2, Nirmla, had remarried, which fact she had fraudulently concealed at the time of her deposition before him on 16.10.1992. According to respondent No. 3, after remarriage she became disentitled for claiming compensation as her second husband is quite well-off. He has also noticed in the impugned order that appellant No. 1 was also earning about Rs. 3,000/- from all sources, as such, he was also not dependent upon deceased Mohan. But wherefrom respondent No. 3 has gathered this information, is not mentioned in the impugned order. However, before passing the impugned order he did send notices to the appellants, which were not served upon them, as stated in the impugned order. It is also mentioned that the appellant No. 1 had once attended his Court at Nahan on 12.10.1994 along with his counsel but he neither filed written statement/reply nor gave any statement before him in support of the issues/factors being examined in the application.
8. The appellants have challenged the impugned order on the grounds that after passing the award dated 25.9.1993, respondent No. 3 had no jurisdiction to recall it while deciding the application for the release of the award amount. It is stated in the appeal that his inquiry in respect of remarriage of appellant No. 2 and that the appellant No. I was not dependent upon deceased Mohan, was not bona fide but for the reason that they had failed to pay illegal gratification demanded by the respondent No. 3 for releasing the award amount. In support of their submission they have annexed an anonymous letter dated 30.5.1994 received by their counsel Mr. K.S. Chauhan, Advocate, complaining against respondent No. 3 that he would either disburse the award amount to the claimants after deducting his own commission or return the same to the Government after amending his earlier judgment, as such, he should withdraw the award amount at an early date.
9. When this matter came up for hearing on 22.5.1996 and Mr. Ravi Bakshi, Advocate, had put in appearance on behalf of respondent No. 3, two weeks time was granted to Mr. Bakshi to have instructions in the matter. Respondent No. 3 has not filed any reply so far, but has changed his counsel and now Ms. P.P. Grewal, learned Counsel, represents him. She has prayed for further time to file reply to the allegations of mala fide made against respondent No. 3. But in view of the fact that respondent No. 3 was served on 29.6.1995, we are not inclined to give him any further time.
10. We have heard learned Counsel for the parties and gone through the record. We have no hesitation to hold that after the award dated 25.9.1993 was passed by the respondent No. 3, against which no appeal was filed by respondent No. 1 and the award amount was also deposited on 14.2.1994, respondent No. 3 had no jurisdiction to recall the award dated 25.9.1993. After the deposit of award amount, respondent No. 3 could exercise his jurisdiction only under Section 8 of the Act, which pertains to distribution of compensation. Since it was already decided by him in award dated 25.9.1993 that the appellants were entitled to compensation being dependants of deceased Mohan, no further inquiry was called for, as envisaged under Sub-section (4) of Section 8 of the Act.
11. So far Sub-section (8) of Section 8 of the Act is concerned, it provides that if an application is filed in this behalf or the Commissioner, Workmen's Compensation is satisfied on inquiry that on account of neglect of children on the part of a parent or on account of the variation of the 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. This sub-section is not applicable in the present case, as there is no order of distribution of compensation or as to the manner and mode of payment of compensation which was required to be varied on account of variation of circumstances. In fact, this sub-section does not envisage variation of the award passed under Section 4 of the Act. There is no provision to review such an award.
12. Section 6 of the Act provides review to the limited extent that on the application either of the employer or 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, an application made without such certificate. Any half-monthly payment payable under this Act, either under an agreement between the parties or under the order of the Commissioner, may be reviewed by the Commissioner. Sub-section (2) of Section 6 of the Act further provides that on review any half monthly payment may 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 had already received by way of half monthly payment subject to the provisions of the Act. But this section does not empower the Commissioner, Workmen's Compensation to review his award under Section 4 of the Act on the ground of being erroneous in law, against which appeal lies to the High Court, as provided under Section 30 of the Act.
13. So far Sub-section 9 of Section 8 of the Act is concerned, it provides that the Commissioner may vary any order under Sub-section (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means and such amount shall be recovered in the manner hereinafter provided in Section 31. Apparently it does not apply in the present case, as respondent No. 3 was not dealing with any order passed under Sub-section (8) of Section 8 of the Act in respect of payment of compensation already made.
14. Under Section 2(1)(d)(i) of the Act a widow, a minor legitimate son, an unmarried legitimate daughter or a widowed mother is defined as dependant. Section 2(1)(d)(iii)(b) of the Act further provides that a parent other than a widowed mother is also dependant if he or she was wholly or in part dependent on the earnings of the workman at the time of his death. This section does not put any limitation that if a widow of a workman remarries or the earnings of the parent increase, after the death of the workman, she/he will become disentitled from getting compensation. In fact their eligibility is to be seen at the time of the death of the workman and subsequent events, such as remarriage of a widow and increase of earnings of a parent have no bearing.
15. We may also refer to judgments in Ravuri Kotayya v. Dasari Nagavaradhanamma 1958-65 ACJ 193 (AP) and R.B. Moondra & Co. v. Bhanwari 1971 ACJ 438 (Rajasthan), wherein the learned Judges have categorically held that remarriage does not disentitle a widow to claim compensation under the Act, as the definition of 'dependant' given in Section 2(1)(d) of the Act does not put any such restriction. In another judgment Basudeo Rai v. Jagarnath Singh 1987 ACJ 55 (Patna), the learned Judge of Patna High Court has held that the Commissioner, Workmen's Compensation has no power to review his award granting compensation, even on the ground that it was erroneous in law.
16. In the result, we accept the appeal and set aside the order dated 22.10.1994 and upheld the award dated 25.9.1993. The award amount, which stands invested in fixed deposit by the Registry of this Court, is ordered to be released in favour of the appellants along with up to date interest. In view of the totality of the facts and the circumstances, we apportion the award amount in the manner-Rs. 40,000 be paid to appellant No. 2, Nirmla, and Rs. 28,136/- be paid to appellant No. 1, Jagar Nath, with proportionate interest. Respondent No. 3 will pay the cost of the appeal, which is quantified at Rs. 3,000/-, to the appellants in equal shares.
17. Before parting with this appeal, we may point out that since respondent No. 3 has not filed any reply to the allegations of mala fide and Ms. P.P. Grewal, learned Counsel appearing for him has prayed for further time, which prayer we have rejected, we are not giving our findings in respect of those allegations. However, the appellants are at liberty to have legal remedy available to them in this regard, if they so desire. If the appellants prefer to file civil suit against respondent No. 3 within a period of three months, respondent No. 3 will not raise the plea of limitation. Dasti copy on usual terms.