Hasina Bibi vs Md. Gulab Ansari

Chakeavartti, C.J.—This case is a little out of the ordinary in that there is no dispute between the claimant for compensation and the employer. The dispute is between the widow of the deceased workman and the relations of her husband as to whether the widow alone is entitled to the whole of the compensation money or whether her husband''s relations are also entitled to share it with her. The learned Commissioner has distributed the amount deposited by the employer between all the contending parties. The widow feels aggrieved and has appealed.

The workman concerned was one Mohammad Makbul who was employed as a boatman under the Garden Reach Workshops Limited on monthly wages of Rs. 50 to Rs. 60. On the 19th of July, 1955, while working on a boat, he accidentally fell down into the river and was drowned. Rather unusually for an employer, the Garden Reach Workshops Limited at once accepted liability for compensation and by a letter, dated the 27th of September, 1955, sent to the Commissioner for Workmen''s Compensation a cheque for Rs. 1,740 in full payment of the compensation claimable in law for the workman''s death. The total amount of the compensation payable on the basis of the monthly wages of the deceased workman would be Rs. 1,800, but it appears that the employers had already paid the widow a sum of Rs. 60 and, therefore, they deposited with the Commissioner the balance of Rs. 1,740. That deposit made, they did not wish to remain concerned with the matter any further and stated in their letter to the Commissioner that they had no desire to be made parties to any proceedings for the distribution of the compensation if and when such proceedings were instituted. The deposit was accepted by the Commissioner by an order, dated the 4th of October, 1955. u/s 8(3) of the Workmen''s Compensation Act, receipt of the money by him would operate as sufficient discharge of the employers in respect of the compensation payable by them.

On the 14th of October, 1955, the Appellant before us, who is widow of the deceased workman, made an application in what has been called form G. for the payment of the entire amount of the compensation to herself. Form G.1, we are informed, is not one of the forms prescribed by the rules framed under the Act, but has come to be in use in the Court of the Commissioner for Workmen''s Compensation in distribution cases. Not much care appears to have been taken to adjust the form to the prayer which the widow really intended to make because the words in para. 4 of the form, namely, "that the amount *** deposited *** as compensation *** be distributed amongst the abovenamed applicants in accordance with law" were left untouched. It is, however, sufficiently clear from the rest of the application that what the widow really wanted was that the entire amount of the compensation deposited by the employers should be paid out to her.

The widow disclosed in her application the existence of a number of relations of her deceased husband. They were his parents, two minor brothers and one minor sister. Those relations were mentioned by the widow only as members of her husband''s family whom he had left him surviving, but no admission was made that they were dependants of her husband. Quite inexcusably, the application, as included in the paper book, contains the word "dependants" after the names and particulars of the relations, but we have referred to the original application and satisfied ourselves that the word, which would be fatal to the widow''s claim, does not occur there.

On receipt of the application, the Commissioner directed by an order, dated the 14th of October, 1955, that the case be sent to the Registrar for recording the depositions of the applicant and her witnesses. Before the Registrar, the widow examined herself and also a cousin of hers. It appears from a note recorded by the Registrar at the end of the record of the depositions that, before him, it was represented on behalf of the Appellant that she did not want any payment at that point of time, but only after a local enquiry had been held in the case. In those circumstances, the Registrar recommended that a local enquiry by the Police might be held before any payment was made, "more so" as he observed, "in view of the tender age of the girl widow". With that observation he sent up the record of the depositions to the Commissioner for orders.

The report of the Registrar was dated the 19th of October, 1955. On the next day, the Commissioner passed an order which concluded with the following directions: "Write to the District "Magistrate, Monghyr, with regard to the dependants left by the "deceased Md. Makbul and request him to furnish the names of the "dependants with their ages and relationship". In accordance with that direction, the District Magistrate was written to and in due course he submitted a report which was really a report by the Sub-Inspector of the Tarapur Police Station. The relation left by the deceased as reported by the Sub-Inspector were the same as disclosed by the Appellant in her application. As to whether the relations, other than the Appellant, were dependants of the deceased, the report of the Sub-Inspctor was as follows: "All the above members stated that they were living together and supported by the deceased. The villagers also Supported this fact". The report was forwarded to the Commissioner by the Deputy Magistrate in charge, Monghyr, by a letter, dated the 9th March, 1956.

In the meantime, another application in form G. had been made on the 18th of November, 1955, by the remaining relations of the deceased workman, all of whom claim to be his dependants. That application was first dealt with by the Commissioner by an order, dated the 2nd of December, 1955, whereby he said that the report of the Police enquiry, already directed was to be awaited. After the receipt of the report, both the applications, were taken up for consideration on the 3rd of April, 1950, when, the learned Commissioner made the final award. By that award he directed Rs. 500 to be paid to the Appellant in addition to the sum of Rs. 60 already received by her and the balance of Rs. 1,240 was jointly awarded by him to the parents of the deceased workman, his minor sister and the minor brothers. Of the amount of Rs. 1,240, Rs. 440 was directed to be paid in cash and the balance of Rs. 800 to be invested in the Post Office Saving Bank Account. It is against that order of the learned Commissioner that the present appeal is directed.

Mr. Mukherjee who appears on behalf of the Appellant did not seem to question, when he began to address us, the legality of the order made by the learned Commissioner whereby he had directed the Registrar to record the evidence of the applicant and her witnesses. In fact, he was at pains to make out that the order was well warranted by Rule 23 of the rules made under the Workmen''s Compensation Act, read with notification No. 1112 Lab., dated the 30th of December, 1947, issued by the Government of West Bengal. The sole point he formulated before us was that the learned Commissioner ought not to have relied upon the Police report and merely taken over the findings of the Sub-Inspector of Police on the question of the dependency of the remaining relations of the deceased workman, but should have decided the matter on evidence taken by himself. This morning, however, Mr. Mukherjee seemed inclined to argue that Rule 23 would not apply to the application made by the Appellant and accordingly the notification also would not apply and if the notification did not apply the Registrar would have no authority or jurisdiction to record the evidence in the case although directed to do so by the Commissioner. Mr. Mukherjee''s point, as developed this morning seemed to be that not only must the Police report be discarded, but the deposition recorded by the Registrar must also be left out of account.

There was an obvious reason for Mr. Mukherjee trying to make out towards the close of his argument what he had not even attempted to do when he commenced addressing us. The deposition of the Appellant''s cousin before the Registrar contains a statement as to the relations left by him, namely, the parents, two minor brothers and a minor sister and it is followed by a statement that the deceased "had got no other dependants alive". If the deposition was correctly recorded and if the witness knew what he was talking about, his statement that the deceased workman had left no other dependants would continue an admission that the relations mentioned by him in the earlier part of his deposition were dependants of the deceased. It was obviously to Mr. Mukherjee''s interest to get rid of that admission and that perhaps was the reason why he directed his attack this morning against the proceedings before the Registrar.

The question whether the proceedings before the Registrar were authorised by the provisions of the Act and the rules framed thereunder is by no means free from difficulty. I am, however, inclined upon a consideration of the relevant provisions to think that they were authorised. Rule 23 of the Rules says that on receiving an application "of the nature referred to in Section 22", the Commissioner may send it to any officer authorised by the Local Government in that behalf and direct such officer to examine the applicant and his witnesses. Notification No. 1112 Lab. of the 30th of December, 1957, issued by the State Government, authorise the Registrar, Workmen''s Compensation Court, West Bengal, among other officers, to receive applications sent to them by the Commissioner and, where so directed by the Commissioner, to examine the applicant and his witnesses. The notification purports to have been issued "in exercise of the power conferred "by Sub-rule (1) of Rule 23 of the Workmen''s Compensation Rules, "1924, made u/s 32 of the Workmen''s Compensation Act, "1923." The net effect of Rule 23(i) read with the notification, therefore, is that only applications "of the nature referred to in Section 22" can be sent to, among other officers, the Registrar of the Workmen''s Compensation Court for the purpose of an examination of the applicant and his witnesses. If the application made by the Appellant in the present case was not an application "of the nature referred to in Section 22", it was not. an application which could be sent to the Registrar at all under Rule 23(1) read with the notification.

We are thus thrown back on Section 22 and must ascertain from its terms whether an application of the kind made by the Appellant in the present case is within the ambit and contemplation of that section. The material portion of Section 22 is Sub-section (1) and the application it contemplates are applications "for the settlement "of any matter by a Commissioner". It is true that there is an exception expressed in the words "other than an application by a dependant or dependants for compensation", but it seems to be perfectly clear that the object of the exception is not to except applications made by a dependant or dependants for compensation from the ambit of the section altogether, but only to except them from the requirement, stated in the latter part of the Sub-section, that before an application is made to the Commissioner, an attempt must be made to settle the question, which has arisen between the parties, by agreement and such attempt must have failed. All applications made to the Commissioner for the settlement of any matter by him thus appear to be within the ambit of Section 22. It is well known that the Commissioner for Workmen''s Compensation is not so much a Judge presiding over a Tribunal, as an Arbitrator making an award between contending parties to the best of his discretion, although he must follow some established legal principles. The language "settlement of any matter" is thus appropriate for all applications made to the Commissioner by which relief is sought for from him. I do not, therefore, find any difficulty in holding that the application made by the Appellant in the present case for the payment of the entire amount of the compensation to her was an application "of the nature "referred to in Section 22" and, therefore, no difficulty in holding that both Rule 23(1) and the notification of the 30th of December, 1947, applied. If they applied, the Commissioner''s order, remitting the case to the Registrar for the examination of witnesses and the proceedings before the Registrar were perfectly regular.

There is, however, a further difficulty, though of an apparent nature, I have already pointed out that Section 22(1) contains a provision to the effect that no application for the settlement of any matter by a Commissioner, other than an application by a dependant or dependants for compensation, shall be made unless and until the parties have failed to settle the question which has arisen between them by agreement. There is no statement in the applicant''s application in the present case that any attempt to settle the question between her and the other relations of her husband was ever made, nor is there any evidence to that effect. Unless, therefore, her application could be held to be an application by a dependant for compensation, it would plainly be a defective application or perhaps even an application which the Commissioner had no jurisdiction to entertain, inasmuch as the condition precedent of an attempt at settlement by agreement had not been fulfilled. I think, however, that the application made by the Appellant can properly and reasonably be held to be an application made by a dependant for compensation. That she is a "Dependant" is not disputed. It is true that by the application she was not claiming to recover compensation from her husband''s employers, but she was nevertheless asking that the amount deposited by the employer as compensation be paid out to her. I am unable to see why such an application cannot legitimately be said to be an application of the deceased workman, as she indisputably was, and if she prayed for payment of the compensation money to her, as she undoubtedly did, her application was clearly an application by a dependant for compensation, as contemplated by Section 22(1) of the Act. If so, it came within the exception provided for in the Sub-section and, therefore, it was not necessary that before it was made, there should have been an unsuccessful attempt at settlement of the dispute between her and the other relations of her husband by agreement.

For the reasons I have endeavoured to give, my conclusion on the point, belatedly taken by Mr. Mukherjee against the regularity of the proceedings before the Registrar, is that the Appellant''s application being an application by a dependant for compensation within the meaning of Section 22(1), it could be sent to an officer authorised by the Local Government under Rule 23 and the Registrar of the Workmen''s Compensation Court having been authorised by the Local Government by the notification of the 30th December, 1947, it could be sent to him with a direction to examine the Appellant and her witnesses. There is thus no reason to discard the depositions recorded by the Registrar.

The main and the really substantial point argued by Mr. Mukherjee, however, is that, in any event, the Commissioner had acted illegally in basing his award on the finding contained in the Police report. We were informed that a practice of directing a Police enquiry was in vogue in the Court of the Commissioner for Workmen''s Compensation, but the proper object of that enquiry was to verify the identity of the claimants and their relationship with the deceased workman. In the present case, however, the direction given by the Commissioner went much further, inasmuch as he directed a request to be made to the District Magistrate of Monghyr "To furnish the names of the "dependants with their ages and relationship". The District Magistrate was thus directed not merely to ascertain and report whether the relations disclosed by the Appellant''s own application or the relations of the deceased workman who had made tne second application in form G. 1 really existed and stood to the deceased workman in the various relationships alleged or whether there were other relations as well but also to find out and decide who the dependants of the deceased were. Mr. Mukherjee''s argument was that there was no provision either in the Act or in the Rules, under which the Commissioner could direct an enquiry of that nature to be held by the Police, not to speak of his acting on the results of such an enquiry.

Mr. C.F. Ali who appears on behalf of the relations of the deceased workman other than the Appellant who were the applicants of the second application, frankly concedes that the Police enquiry directed by the Commissioner as to who were the dependants of the deceased workman could by no means be said to have been warranted by law. Distribution of compensation is dealt with by the Act in Section 8 and the only reference to an enquiry which is to be found in the section occurs in Sub-section (4), The provision contained in Sub-section (4) is, to refer only to the material part, that on the deposit of any money under Sub-section (1) as compensation in respect of a deceased workman, the Commissioner "shall, if he thinks necessary, cause notice to be "published or to be served on each dependant in such manner as he "thinks fit, calling upon the dependants to appear before him on "such date as he may fix for determining the distribution of the "compensation". It appears to me that rules the employer depositing the compensation makes some mention of who the dependants of the workman are, the Commissioner will for all practical purposes be unable to proceed under the provision I have just read, until and unless there is an application before him by persons claiming to be dependants. In the absence of any statement by the employer as to who the dependants of the deceased workman are and in the absence of any application by the dependants themselves, the Commissioner cannot possibly have any means of knowing who the dependants are and could be in a position to cause any notice to be published or to be served on them as contemplated by Sub-section (4) of Section 8. We are, however, not so much concerned with the first part of Sub-section (4) as with the second part. That part states that if the Commissioner is satisfied "after any inquiry which he may deem necessary, that no dependant exists", he shall repay the balance of the money to the employer by whom it was paid. While what the Commissioner will do in case he finds as a result of his enquiry that no dependant exists in clear it is not equally clear what the scope of or occasion for the contemplated enquiry is. It is possible to hold that the Commissioner will make an enquiry only when the employer has not mentioned any dependants and no one claiming to be a dependant has come forward with an application for the compensation. But it may equally be that the enquiry contemplated includes an enquiry as to the validity of the claims of the persons either disclosed by the employer or coming forward as applicants to have been dependants of the deceased workman at the date of death. It is, however, somewhat curious that the Sub-section which provides for what the Commissioner should do in case his enquiry leads to one result, does not state what he should do if another result follows. The rule does not state, at least in specific terms, what the Commissioner will do in case he finds that dependants existed, but perhaps it is implied that he will act in the manner laid down in Sub-section (5).

Even assuming that the scope of the enquiry contemplated by Sub-section (4) is wide enough to include an inquiry into the validity of the claims of persons disclosed as claimants to have been dependant it would seem that the inquiry contemplated is an inquiry by the Commissioner himself or an inquiry by one of the officers authorised by the Local Government in that behalf under Rule 23 to the extent of recording the evidence of witnesses. It can never be an inquiry by the Police. Still less could it have been contemplated by the Act that the Commissioner would take over, as it were, the findings made by the Police at an inquiry held by them as regards whether certain persons were or were not the dependants of the deceased workman and base his award solely upon such findings without any consideration of the matter by himself on evidence taken before him.

Not only is a Police inquiry, such as the inquiry directed in this case, wholly unwarranted by law but how risky or unfair it can also be is well illustrated by the report of the Sub-Inspector. Obviously, he did not examine the Appellant at all, because he states that at the time of the inquiry she was living in her father''s house at another place. All that the Police officer did was to take statements, from the other interested parties, claiming to be the dependants of the deceased workman and to refer himself to the opinion of villagers. How the villagers could be competent to say whether the claimants of the second application whom I may call perhaps not inappropriately, dependants of the second degree, had been depending wholly or in part of the earnings of the workman at the time of his death, it is not at all possible to see. Not only is the report made by the Police wholly unwarranted by any provision in the Act or in any other law, but it is also utterly valueless on its merits.

It follows that in directing a Police enquiry as to who the dependants were, the Commissioner committed an error of procedure and in basing his award on the findings contained in the Police report he committed a basic error of law. Mr. Ali, as I have already stated, made no attempt to defend the Police report but at the same time he contended that there were other materials by which he could show the award of the Commissioner to be proper award. I do not think too much importance should be attached to the statement of the Appellant''s cousin that besides the relations mentioned by him, the deceased workman had left no other dependant. Indeed, Mr. Ali himself did not place much reliance on that admission, if admission it was. What he contended was that, according to the evidence led by the Appellant herself, she was continuing to live with her father-in-law, as she had always been doing before her husband''s death and that since it was thus proved that all the members of her husband''s family lived in a common establishment, nothing more was required to show that all the claimants were his dependants. In support of that contention Mr. Ali invited our attention to the decision of Derbyshire, C.J. and Mukherjea, J. in the case of The Khulna Electric Supply Corporatism Ltd. v. Bahadur Sardar and Anr. (1938) 42 C.W.N. 516

I am entirely unable to agree with Mr. Ali that the materials on record support his contention and am still less able to agree with him that the case cited is of any assistance to his clients. The question before the court in the case cited was whether the father of the deceased workman and his mother were his dependants and the effect of the evidence, as summarised by the learned Chief Justice, was as follows:

The deceased and his father Bahadur appear to have paid their wages or to have used their wages to maintain themselves and some of their relatives in one common establishment. Each was to some extent dependent on the earnings of the other. Therefore, there was some partial dependency of the father Bahadur upon the deceased Makim.

The conclusion of the learned Chief Justice, with which Mukherjea, J. agreed was:

Consequently, Bahadur and his wife are dependant and entitled to some portion of the compensation money payable under the Act.

There was thus evidence that the father and son lived in a common establishment and used to pool their resources together and, therefore, the father and the mother were to a certain extent dependant on the earnings of the son. In the present case, however, even assuming, as appears to be the fact, that the deceased workman, his parents and his brothers and his sister, all lived in a common establishment, there is nothing whatever to show that the father received or used any part of the son''s wages to maintain himself and the other members of the family. As regards the minor brothers and the sister, they could be held to be dependants of the deceased workman only if it could be shown that they too depended wholly or in part on his earnings. Of such dependence, there is no proof whatever in the other materials to which Mr. Ali referred. The materials on record are, therefore, wholly insufficient for coming to any definite conclusion on the only disputed question in the case and it remains to be decided in accordance with law.

For the reasons given above, this appeal is allowed. The order and the award of the Commissioner, dated the 3rd of April, 1956, are set aside and the case is remitted to him with the direction that he do decide, in the light of the observations contained in this judgment and in accordance with law, the question as to whether the claimants, other than the Appellant, were or were not dependants of the deceased workman on such evidence as the parties may adduce before himself. He must leave out of consideration altogether the Police report, so far as the report purports to state that the relations of the deceased workman mentioned therein other than the Appellant, were also his dependants. The learned Commissioner will make his final award in accordance with such finding as he may arrive at upon the further hearing of the matter in accordance with the directions hereby given.

Costs of this appeal will be costs in the case the hearing fee being assessed at three gold mohurs.

Das Gupta, J.

I agree.