Allahabad High Court
Nikesh Saboo vs Employment Compension ... on 4 April, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 6 Case :- WRIT - C No. - 9637 of 2023 Petitioner :- Nikesh Saboo Respondent :- Employment Compension Commissioner/Deputy Labour Commissioner Mirzapur And 2 Others Counsel for Petitioner :- Abhinav Kumar Pandey Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
Heard Sri Abhinav Kumar Pandey the counsel for the petitioner Sri Saurabh Srivastava the Counsel for the respondents.
The present petition has been filed by the petitioner challenging the order dated 31.10.2022 whereby the amount has been awarded by the Employees' Compensation Commissioner, Mirzapur against the petitioner.
The facts, in brief, are that the respondent no.2 filed a Claim Petition claiming compensation under the Employee's Compensation Act, 1923 on account of the death of late Mahipal represented by the respondent no.2. In the proceedings, a written statement was filed by the petitioner as well as by the Insurance Company. The defense taken by the petitioner was that there was a valid insurance. He relies upon the policy which is on record to demonstrate that an amount of Rs.100/- was deposited by the petitioner under the heading "LL to Paid Driver IMT 28". He argues that in terms of the tariff as prescribed by the IRDA, an amount of Rs.50/- is payable as a tariff whereas the petitioner has deposited Rs.100/- and thus, there was a presumption that any person in addition to the driver was also duly insured.
He argues that in terms of the pleadings raised before the Commissioner, no pleading with regard to the amount deposited under the IMT 28 was pleaded either by the petitioner or by the Insurance Company or by the claimant, however, while while awarding the compensation against the petitioner, the Commissioner has recorded a finding based upon the IMT 28.
The counsel for the respondents Sri Saurabh Srivastava argues that in terms of the Employee's Compensation Act, an appeal is prescribed under section 30 of the Act subject to the condition that are specified and on a question of law.
The counsel for the petitioner argues that although an appeal is prescribed on a question of law, the said appeal is subject to deposit of the entire amount and the petitioner being an unemployed person does not have the means to deposit the amount, which is required in terms of third proviso to Section 30(1) of the Act. He argues that in view of the fact that the Commissioner has decided the case based upon the record, which was neither pleaded by any of the party, clearly there was a violation of the principles of natural justice inasmuch as the petitioner ought to have given an opportunity to explain the deposit under IMT 28.
He further argues that in similar circumstances, the same Commissionerate has accepted the contention of the employer in an award passed on 21.10.2021 in case No.EC 39 of 2020 wherein the contention with regard to IMT 28 was decided in favour of the owner. He argues that in case the petitioner was confronted with the issue either by the Commissioner or by the Insurance Company, the petitioner could have demonstrated and explained.
From the arguments raised at the bar, clearly the Commissioner has transgressed his powers while recording a finding which was neither pleaded nor argued and thus, in terms of the law laid down by the Supreme Court in the case of Grindlays Bank Limited vs. Central Government Industrial Tribunal and others; 1981 SCR (2) 341, a case for procedural review is made out.
It is well settled that review is creature of the statute, however it is equally well settled that a procedural review is implicit in all the authorities.
Considering the fact that order has been passed on the grounds which were neither pleaded nor argued nor confronted, the petitioner would be at liberty to file an appropriate application seeking review of the order, which shall be decided by the Commissioner in accordance with law on merits and after giving an opportunity of hearing to the parties and taking into consideration the award dated 21.10.2021 passed in Case No.EC 39 of 2020. The said order shall be passed in accordance with law with all expedition preferably within a period of two months from today. The review shall be confined to the liability to pay the determined amount and on no other ground.
The petitioner shall approach the Commissioner by filing an appropriate application seeking review of the order in terms of the directions given above within a period of ten days from today.
For a period of two months or till decision, the recovery shall not be effected against the petitioner.
The writ petiton stands disposed off.
Order Date :- 4.4.2023 VNP/-