Patna High Court
Ramautar Choudhary vs Sone Valley Portland Cement Co. Ltd. on 13 January, 1958
Equivalent citations: AIR1958PAT540, 1958(6)BLJR383, AIR 1958 PATNA 540
JUDGMENT R.K. Choudhary, J.
1. This is an appeal under Section 30 of the Workmen's Compensation Act (Act VIII of 1923). The appellant was an Electrician in the respondent's concern since 15-10-1930. On 26-6-1950, while he was working in the respondent's concern, he sustained certain injuries on his left hand. He was admitted in the Company's local hospital and later on was removed for better treatment on 4-10-1950, to Calcutta, at Nilratan Sarkar Medical College Hospital.
On 7-11-1950, against the medical advice, the appellant left the hospital. On 19-1-1951, he again came back to the Respondent's concern and was again admitted in the hospital there. Sometime thereafter, but before July, 1951, the whole of his left forearm was amputated in the Patna General Hospital. On 23-11-1953, he applied for compensation under the provisions of Workmen's Compensation Act. The claim was dismissed by the Commissioner appointed under that Act on 25-7-1955, and being thus aggrieved the appellant has presented this appeal to this Court.
2. It appears that in the present proceeding the learned Commissioner appointed under the Act has failed to follow the procedure prescribed by law. As already stated, the application for compensation was made on 23-11-1953. The District Magistrate of Shahabad, who was appointed Commissioner under the above Act, entertained the application and passed an order for issue of notice to the opposite party to report as to why the compensation has not been paid.
No reply was, however, given by the respondent concern, and on 15-6-1954/22-6-1954, the learned Commissioner passed an order for writing to the Subdivisional Officer of Sasaram to look into the matter and report. Sometime in March or April, 11955, the Subdivisional Officer, Sasaram, submitted a detailed report, and on 22-4-1955, the learned Commissioner, after perusal of the report, directed the respondent to show cause by 22-5-1955, as to why the Company should not be directed to pay compensation to the injured.
The respondent showed cause on 25-6-1955. On 25-7-1955, the Commissioner beard the workman and his lawyer and perused the report of the Subdivisional Officer, Sasaram, as well as the show-case petition filed by the Respondent. He took the view that the amputation of the fore-arm was caused by the negligence of the appellant himself and not due to the fall while he was working in the respondent's concern, and that, at any rate, the application having been made more than one year after the accident, was barred by time. He, therefore, rejected the application as stated above.
3. It has been argued on behalf of the appellant that the learned Commissioner (in this case the District Magistrate of Shahabad) had no jurisdiction to hear this matter.
In support of this contention he has placed reliance on Section 20 (1) and (2) of the Workmen's Compensation Act, as well as the notification issued by the Government of Bihar, being No. W4-1019/, 50-L.-84, dated 5-1-1951.
Section 20 (1) states that the Provincial Government may, by notification in the Official Gazette, appoint any person to be a Commissioner for Workmen's Compensation for such local area as may be specified in the notification. Sub-section (2) of that section lays down that where more than one Commissioner has been appointed for any local area, the Provincial Government may, by general or special order, regulate the distribution of business between them. The notification referred to above runs as follows :
"Notification Patna, 5-1-1951. No. W4-1019/ 50-L.-84. In exercise of the powers conferred by Sub-sections (1) and (2) of Section 20 of the Workmen's Compensation Act, 1923 (VIII of 1923), and in supersession of all previous notifications on the subject, the Governor of Bihar is pleased to appoint the persons named in column 1 of the schedule hereto annexed below to be ex-officio Commissioner for Workmen's Compensation within the limits of their respective jurisdictions as specified in column 2 of the Schedule and (2) to declare that (a) the Commissioner of Labour, Bihar, as ex-officio Commissioner for Workmen's Compensation shall deal with all contested cases arising out of the Workmen's Compensation Act and rules framed there-under; and (b) the persons other than the Commissioner of Labour, Bihar, as ex-officio Commissioner for Workmen's Compensation shall deal with uncontested cases only arising out of the Workmen's Compensation Act and rules framed thereunder.
Schedule.
Column 1.
Column 2.
1. Commissioner of Labour, Bihar.
Whole of Bihar.
XX
XX XX
XX
4.
District Magistrate, Shahabad.
Shahabad District.
XX
XX XX
XX"
It has been contended on behalf of the appellant that
after the respondent filed its show-cause petition,
which amounted to a written statement, the matter
became a contested one and was, therefore, not
triable by the District Magistrate of Shahabad, but
by the Commissioner of Labour, Bihar, as provided
in the above notification. The contention seems to
be well founded and must prevail.
4. The procedure laid down in Part V of the rules made under the Workmen's Compensation Act relates to the procedure to be adopted in a proceeding for application for compensation under that Act. According to Rule 23, on receiving the application the Commissioner may examine the applicant on oath or may send the application to any Officer authorised by the State Government in this behalf and direct such officer to examine the applicant and his witness and forward the record thereof to the Commissioner.
In the present case the provision of this rule has been followed and the Subdivisional Officer of Sasaram was directed to make a report. Rule 24 then provides that the Commissioner may, after considering the application and the result of any examination of the applicant under Rule 23, summarily dismiss the application, if for reasons to be recorded, he is of opinion that there is no sufficient ground for proceeding thereon.
In the present case the application has not been summarily dismissed,. Rule 25 lays down that if the application is not dismissed under Rule 24, the Commissioner may, for reasons to be recorded, call upon the applicant to produce evidence in support of the application before calling upon any other party, and, if upon considering such evidence the Commissioner is of opinion that there is no case for the relief claimed he may dismiss the application with a brief statement of his reason for so doing.
It is conceded by both the parties that the application has not been dismissed under this rule. Rule 26 then lays down that if the Commissioner does not dismiss the application under Rule 24 or Rule 25, he shall send to the party from whom the applicant claims relief a copy of the application, together with a notice of the date on which he will dispose of the application, and may call upon the parties to produce upon that date any evidence which they may wish to tender. In the present case it appears that this rule has been followed and the respondent concern was directed to show cause.
Rule 27 then provides that the opposite party may, and if so required by the Commissioner, shall, at or before the first hearing or within such time as the Commissioner may permit, file a written statement dealing with the claim raised in the application, and any such written statement shall form part of the record; and then Rule 28 says that after considering the written statement and the result of any examination of the parties, the Commissioner shall ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend.
In the present case the respondent concern filed a written statement by filing its show-cause petition, and the proper procedure that should have been adopted then was that the Commissioner should have framed issues and then decided the case as if it were a contested case, because in its show-cause petition the respondent concern challenged the liability claimed by the appellant. This rule has not been followed and the judgment has been pronounced without framing any issue. The procedure thus adopted is not in accordance with law and is thus vitiated.
5. It also appears that the Commissioner has not considered the proviso to Section 10 of the Act, which enables the Commissioner to accept the application under Section 10 even after one year of the accident if sufficient cause has been shown. Counsel for the appellant has relied on J. Hogan v. Gafur Ramzan, AIR 1934 Bom 28 (A), Salamat v. Agent, East Indian Railway, AIR 1938 Cal. 348 (B) and Kesoram' Cotton Mills Ltd. v. Bal Govind, AIR 1953 Cal 667 (C) for the proposition that if the workman notwithstanding the injury has been retained in service, then that amounts to sufficient cause within the meaning of the proviso to Section 10. That point has not been considered by the Commissioner. Since, I am making an order of remand I do not want to express my opinion on this point.
6. The result, therefore, is that the order of the Commissioner is set aside and the case is sent back to the Commissioner of Labour, Bihar, for disposal in accordance with law.