Jammu & Kashmir High Court
Naseera Nazir And Ors. vs Executive Engineer on 21 July, 1997
Equivalent citations: (1999)IIILLJ1122J&K
JUDGMENT Ab. Quadir Parray, J.
1. This civil reference has been made by the Commissioner under Workman's Compensation Act in the case titled Naseera Nazir and others versus Executive Engineer, in exercise of the power under section 27 of the Workmen's Compensation Act (hereinafter to be referred to as the Act).
2. In order to appreciate the reference, the facts in brief are that one Nazir Ahmad Sheikh, who was employed in the Electric Departments as Line man, while performing his duties and repairing electric line near Janglat Mandi, Anantnag on January 25, 1997, received electric shock at the top of the pole and fell down. He received head injuries and died on January 27, 1991. Three applicants (Minors) Naseera Nazir (daughter), Sajad Ahmad and Khalid Nazir (sons) of deceased Nazir Ahmad through their mother Farooqa Nazir and Farooqa Nazir widow of Nazir Ahmad Sheikh filed a claim petition before the Commissioner under Workmen's Compensation Act, Anantnag against the Executive Engineer, Electric Maintenance and RE Division, Anantnag.
3. It is submitted in the application that the age of workman namely civil servant deceased (Nazir Ahmad) at the time of accident was 44 years as per the date of birth shown in the records is April 1, 1946. The applicants 1 to 3 being minor children of the deceased and the applicant No. 4 being his widow, approached the Forum.
4. The matter after having been tried and considered by the Commissioner under the said Act has returned an award on February 22, 1993, wherein, after hearing the parties and appreciation of the evidence, the Commissioner has worked out the award on the basis of monthly wages of the deceased in the following terms:
'The monthly wages of the deceased were Rs. 1332/- but for purposes of computation, the monthly wages are deemed to be Rs. 1000/-. The deceased had completed 44 years of age immediately preceding the accident. The relevant factor corresponding to the deceased age as Rs. 172.52 as per Schedule IV of Workmen Compensation Act, the compensation payable is Rs. 1000 x 40 / 100 x 172.52 = Rs. 69,008/0. The death occurred on January 27, 1991 and the application has been filed on February 18, 1993....."
5. While making the award, the Commissioner has further directed that the nonapplicant shall pay simple interest @ 5% per annum on the principle amount of compensation only and did not saddle him with penalty in terms of Section 4(A), 3 of Workmen's Compensation Act. The non-applicant was, therefore, directed to deposit an amount of Rs. 69,008/- as compensation along with interest @ 6% per annum from the date of application to realisation of the amount, and the deposit was directed to be made within one month from the date of announcement of the award, with the forum so that same is apportioned amongst the dependents and disposed of in accordance with law, failing which, recourse shall be taken to Section 31 of Workmen's Compensation Act.
6. From the perusal of the record, it transpires that the respondent had not deposited the amount with the Commissioner under the Workmen's Compensation Act. Finally it was vide order dated November 16, 1995 that the Commissioner attached Account head No. 4801 of the respondent to the extent of Rs. 1480,394/- and directed the Treasury Officer, Anantag to deposit the said amount with his office within fifteen days. This order was followed by number of directions/orders issued to the respondent/Treasury officer for depositing the said amount; In the meanwhile, person of Sajad Ahmad along with other dependents of the deceased employee had approached the Forum on January 30, 1997, praying that they have not availed the benefit of the award dated February 22, 1995 and the order dated March 4, 1996 till date. They have further submitted that Account head No. 4801 and Account Head No. 2801 of the non-applicant be attached so that recovery of the compensation award is ensured, where upon both the account heads seem to have been attached in exercise of the powers vested under section 31 of the Workmen's Compensation Act.
7. The records further reveal that certain more developments have taken place and it was on February 3, 1997 that both the parties appeared. The applicants namely, legal heirs of the deceased workman approached the Commissioner with an application for withdrawal of the whole case i.e. claim petition and the consequential recovery proceedings and their statements were accordingly recorded. They have deposed that even if amount of compensation is deposited and tendered to them, they would not accept to take it. Even the non- applicant had also filed objections to the attachment order dated January 30, 1997 and averred that the applicants were not going to take compensation and have asked for the dropping of the proceedings, but the Commissioner under Workmen's Compensation Act has rightly deemed it mandatory that he is bound under law to recover the amount of compensation as per award, though somebody has to take the award and accept the same. The applicant's anticipatory refusal to accept the payment makes the recovery a futile exercise and constitutes relinquishment of their right of compensation. The learned Commissioner has further stated that under the provisions of Section 28 of the Workmen's Compensation Act, an agreement has to be rejected if it appears to have been obtained by fraud or undue influence and under Section 17 of the Act, any contract or agreement made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of employment shall be null and void in so far as it purports to reduce or remove the employer's liability to pay compensation under the Act. The learned Commissioner has further shown anxiety that as because under Rule 41 of the J&K Workmen's Compensation Rules, Order 23 of Civil P.C. is applicable to the proceedings and has said that there is no provision given in the Rules or the Act for withdrawal at execution stage, and as such has made this reference before this Court in the above back-ground.
8. Now in order to appreciate the legal consequence which are arising in the matter that the provisions of Order 23 CPC., as stated by learned Commissioner, are applicable to the proceedings. Order 23 Rule 1 of CPC reads thus:
"23. (1) Withdrawal of the suit or abandonment of part of claim:- At any time, after the institution of the suit, the plaintiff may against all or any of the dependents abandon his suit or abandon a part of his claim, provided that where plaintiff is a minor or other person to whom provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court".
9. Thus when an application for withdrawal or abandonment of a claim is made, it is the satisfaction of the court which has to allow the application in the given circumstances. In case the court feels that the claim is not to be abandoned or part of the claim is not to be abandoned and that too without the consent of other defendants, he can refuse such abandonment.
10. Here in the present case, even if person of Sajad Ahmad son of the deceased workman, even if has been engaged on compassionate grounds by the non-applicant or even if ex-gratia relief or other compensation has been given as per service norms, to which he was entitled, that cannot deprive the applicants from claiming compensation under the Workmen's Compensation Act, as the issue in this regard has been decided by the Forum while passing the award. The records do reveal itself that the person of the petitioners are being pressurised and are under influence of the respondent employer of their father, who has been gracious enough to engage Sajad Ahmad on compassionate grounds. They are being pressurised to withdraw from the claim and thereby abandon the compensation which has been awarded to them by the Commissioner and the abandonment of the claim is against the spirit of Workmen's Compensation Act.
11. Workmen's Compensation Act is a welfare legislation and has been enacted only to see that the. workmen are being paid compensation for the injury or the accident which they have suffered in discharge of their duties of their master and it is the Central Workmen's Compensation Act, 1923 which is applicable to the State of Jammu and Kashmir. The Act provides that the compensation to be paid and deposited not directly to the workman or his dependent, but it is to be deposited with the Commissioner and the Commissioner has to ensure that the amount has been disbursed between rightful claimants. This has only been done in order to ensure that the employer does not show a fictitious receipt or an instrument to evidence that the compensation has been made or paid by him to the workman or to the next of the kin by him outside the court. So the compensation shall be made not otherwise than by deposit with the Commissioner and no such payment which has been made directly by the employer shall be deemed to be a payment of compensation.
12. Procedure further provides under Sub-section (4) of Section 8 of the Act that on the deposit of any money under Sub-section (1) as compensation in respect of deceased workman, the Commissioner, if he thinks necessary, cause notice to be published or to be served to each dependent in such manner as he thinks fit, calling upon the dependents to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied, after any inquiry which he may deem necessary, that no dependent exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
13. It is further stipulated that the compensation deposited in respect of the deceased workman shall be subject to any deductions made under Sub-section (4), be apportioned among the dependents of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one of dependents.
14. Sub-Section (1) of Section 8 of the Act further stipulates that where any lumpsum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the workman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependent of the workman or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
15. So the provisions of Section 8 incorporated in the Act are designed to protect the heirs and legal representatives of the deceased workman against any kind of exploitation or fraud likely to be practised on them by or on behalf of the employer or any third party.
16. It may also be noted that neither Workmen's Compensation Commission-nor the appellate Courts have any jurisdiction to give any credit for any payment of any nature made to the deceased's dependents including any payment in the nature of ex-gratia compensation either made under any statutory provision or under a contract. So the contention of the respondents that they have made ex-gratia payment and also employed one of the sons of the deceased workman on compassionate grounds will not absolve them of the liability under the Workmen's Compensation Act and law. So the compensation awarded by the Commissioner under Workmen's Compensation Act including penalty imposed on the non-applicant for non-payments recoverable and payable through Commissioner under the Workmen's Compensation Act to the next of kin of the deceased and the discretion lies with the Commissioner in exercise of the powers vested in him under the provisions of Order 23 of Civil P.C. If the Commissioner feels and is of the considered opinion that the compensation is being relinquished against the provisions of the Act, he is to ensure that all such agreements and all such contracts are un-cognizable at law and are not to be given any recognition and are ab initio bad. He has not to go through any agreement or consider the same which has been entered into verbally or in writing by the next of kin of the deceased with the employer and is to assure that the agreement having been obtained by fraud or undue influence or through improper means is not taken on record and given any credence.
17. Thus in view of the observations made hereinabove, reference made by the learned Commissioner under Workmen's Compensation Act is replied accordingly.
18. It may also be noted that engagement of one of the sons of deceased namely Sajad Ahmad on compassionate grounds cannot be dispensed with. An employee who has been engaged and has been working on compassionate grounds, his services cannot be terminated under the provisions of the Service Law and the Constitutional mandates except in due course of law and the pressure tactics which have been adopted by the respondent in not making payments of his wages, dues and which have been stopped to him as per averments in the file, by the respondents is also illegal and unconstitutional and it is only being done just to pressurize and put under influence on the applicant so that they are forced to relinquish their claim. So the relinquishment of the claim which is being made by the petitioners is only at the behest of the Executive Engineer (respondent) and he is exercising his undue influence, thereby the rights which have accrued to the next of the kin of deceased workman are to be assured by the Commissioner under Workmen's Compensation Act.
The reference is accordingly allowed and the records be sent back to the Commissioner, under Workmen's Compensation Act, Anantnag for proceeding ahead in the matter of execution in accordance with law.