Oriental Insurance Co. Ltd. vs Workmen''s Compensation Commissioner and Others

Sabhajeet Yadav, J.—Heard Sri Amaresh Sinha, learned Counsel for the Petitioner and Sri Siddharth holding brief of Sri Alok Sharma appearing for Respondent No. 2 as well as Sri S.S. Nigam, learned Counsel for Respondents No. 3 and 4.

By this petition, the Petitioner has sought relief for quashing the orders dated 20.12.2003 and 20.1.2004 passed by Workmen''s Compensation Commissioner, Meerut in W.C Case No. 14 of 1998, contained in Annexures No. 10 and 12 respectively to this petition. A further relief in the nature of mandamus directing the Respondents not to recover the amount from the Petitioner on the basis of judgment and order dated 20.12.2003 passed by Workmen''s Compensation Commissioner, Meerut is also sought for.

The aforesaid reliefs are rest on the allegations that Respondent No. 2 filed a claim petition in respect of injuries sustained by him during the course of his employment with the Respondent No. 3 (M/s. Dewan Tyer Ltd.) on 27.11.1996. The Respondent No. 3 (M/s. Dewan Tyres Ltd. Partapur, Meerut) contested the claim by filing written statement. Prior to filing of its written statement an application dated 28.1.1998 was filed by Respondent No. 3 denying the employment of claimant Respondent with it directly and alleged that the claimant might have been engaged by M/s. Gupta & Company, Ganj Bazar, Sadar, Meerut-contractor, as such M/s Gupta &. Company and the insurer of the employees of the Gupta Company/the Petitioner''s company may be impleaded as parties in the said claim petition resulting which Gupta and company was impleaded as Respondent No. 2 and Petitioner/Oriental Insurance Company was impleaded as Respondent No. 3 in the said claim petition. It is stated that the Workmen''s Commissioner without service of summons upon the Petitioner''s company allowed the claim petition vide his ex-parte judgment and order dated 8.5.2001 against the Petitioner and awarded a sum of Rs. 1,06,267.60 p. as compensation to the workman alongwith 12% simple annual interest thereon from the date of accident to the date of such payment payable by the Petitioner Feeling aggrieved against the said judgment and order dated 8.5.2001 the Petitioner moved an application on 25.6.2001 for recall of the said order, thereupon the Workmen''s Compensation Commissioner, Meerut vide his judgment and order dated 3.5.2002 recalled the judgment and order dated 8.5.2001 and held that the Petitioner''s company shall be liable to pay only 60% of awarded amount of compensation alongwith 12% simple annual interest thereon and remaining 40% of awarded amount of compensation with 12% simple annual interest thereon shall be paid by Gupta and company-Respondent No. 2 of the claim petition (Respondent No. 4 of the writ petition). It is also stated that Petitioner has paid aforesaid 60% compensation along with interest thereon to the workman.

It is stated that after said order dated 3.5.2002 an application dated 3.6.2002 was filed on behalf of the Respondent No. 4 of writ petition (Respondent No. 3 of claim petition) to recall the order dated 3.5.2002, thereupon the Workmen''s Compensation Commissioner vide his judgment and order dated 20.12.2003 has recalled his earlier order dated 3.5.2002 and restored/confirmed his another earlier order dated 8.5.2001. A true copy of the aforesaid order dated 20.12.2003 passed by Workmen''s Compensation Commissioner is on record as Annexure-10 to the writ petition. It is further stated that the order dated 20.12.2003 was passed without any notice to the Petitioner''s company and was ex parte as such an application dated 15.1.2004 was filed on behalf of the Petitioner''s company to recall the order dated 20.12.2003 and to exempt the Petitioner''s company from payment of any amount as directed In the order dated 20.12.2003. The Workmen''s Compensation Commissioner has rejected the application dated 15.1.2004 vide his order dated 20.1.2004. a copy of which is on record as Annexure 12 to the writ petition. These two orders dated 20.12.2003 and 20.1.2004 are under challenge before this Court through instant writ petition.

It is submitted that the order dated 20.1.2001 is cryptic, and without any reason, therefore, is liable to be set aside. Further submission of learned Counsel for the Petitioner is that the order dated 3.5.2002 passed by Workmen''s Compensation Commissioner was fully justified and there was no justification to set aside the aforesaid order by subsequent order dated 20.12.2003 whereby he has virtually reviewed his earlier order dated 3.5.2002 and shifted the. entire liability for payment of the compensation upon the Petitioner-insurance company. There is conspicuous absence of power of review with the Workmen''s Compensation Commissioner in the Workmen''s Compensation Act, 1923 as such impugned orders are wholly arbitrary, illegal and are not sustainable in the eye of law.

I have considered the submissions of learned Counsel for the parties and also perused the record.

From the perusal of record it appears that vide judgment and order dated 8.5.2001 passed in W.C. Case No. 14 of 1998, Jaiveer Singh v. Dewan Tyres Ltd. and Ors. the Workmen''s Compensation Commissioner has awarded a sum of Rs. 1,06,257.60 p. as compensation to the workman-Respondent No. 2/Jaiveer Singh alongwith 12% interest thereon from the date of accident to the date of payment. In the aforesaid order the Workmen''s Compensation Commissioner has held that the employees of Gupta and Company (Respondent No. 4 of the writ petition) were insured with the Petitioner''s company as finding the injuries during the course of employment of Respondent Nos. 3 and 4, the entire liability to pay compensation was fastened to the Petitioner. Thereupon it appears that on an application moved on behalf of Petitioner that the order dated 8.5.2001 passed by Workmen''s Compensation Commissioner was ex-parte against the Petitioner, after hearing the parties, the order dated 3.5.2002 was passed by Workmen''s Compensation Commissioner whereby the liability for payment of compensation was apportioned by him and 60% amount of compensation alongwith interest thereon was directed to be paid by the Insurance/Petitioner''s company and 40% of remaining amount of compensation with interest thereon was liable to be paid by the employer/Respondents. Feeling aggrieved by the aforesaid order passed by Workmen''s Compensation Commissioner the Respondent No. 4 namely M/s. Gupta & Company has filed an application before Workmen''s Compensation Commissioner, upon which the order dated 3.5.2002 was recalled and the earlier order dated 8.5.2001 was restored by Workmen''s Compensation Commissioner vide his judgment and order dated 20.12.2003. Against this order the Petitioner has moved application which has been rejected by Workmen''s Compensation Commissioner vide his order dated 20.1.2001 on the ground that the judgment has already been passed in the matter therefore, there is no justification for such application moved by the Petitioner.

Although learned Counsel for the Petitioner has submitted that the order dated 20.12.2003 was passed by Workmen''s Compensation Commissioner without hearing the Petitioner and he has no jurisdiction to review his earlier order on merit but he could not point out anything as to what submission he could have made about the legality of apportionment of compensation done by the Workmen''s Compensation Commissioner whereby 60% or the compensation alongwith interest thereon was held to be payable by the Petitioner-Insurance Company and remaining 40% amount of the compensation alongwith interest thereon was held to be paid by employer Gupta & Company (Respondent No. 4), in case he would have been given opportunity of hearing before the Workmen''s Compensation Commissioner before the impugned order dated 20.12.2003 was passed by Commissioner, as such in absence of any legal basis of such apportionment of said compensation between the employer of workman and "insurance company, even if the opportunity would have been given to the Petitioner by Workmen''s Compensation Commissioner, in my opinion, the Petitioner could not improve his case before the Workmen''s Compensation Commissioner in wake of indisputable factual and legal position of the case. Therefore, it is not necessary for this Court in exercise of writ jurisdiction under Article 226 of the Constitution to set aside the aforesaid orders merely on the ground that the aforesaid orders were passed without hearing to the Petitioner. In my opinion, affording such opportunity of hearing to the Petitioner again before the Commissioner in view of law laid down by Apex Court in M.C. Mehta Vs. Union of India (UOI) and Others, Canara Bank and Others Vs. Shri Debasis Das and Others, and Canara Bank Vs. V.K. Awasthy, would be useless formality without any useful purpose.

Since there was no legal foundation for apportionment of compensation between the employer and insurance company when the employee has been admittedly insured by the employer with the Petitioner''s/Insurance company, in such situation the liability for making payment of such compensation was of the insurance company, therefore, merely by subsequent order passed on 20.12.2003 by Commissioner the earlier order dated 3.5.2002 was set aside and the order dated 8.5.2001 was restored, the impugned order dated 20.12.2003 cannot be found faulty. I am of the considered opinion that in case, the order dated 20.12.2003 is set aside, in that event of the matter an illegal order dated 3.5.2002 would be restored, as such in such situation, this Court can refuse to exercise extraordinary writ jurisdiction to restore an illegal order passed by Workmen''s Compensation Commissioner. The aforesaid view taken by me also finds support from the decision of Hon''ble Apex Court rendered in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, and Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, wherein the Apex Court has held that the Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the Petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law.

Accordingly, I do not find any good ground to interfere in the impugned orders passed by Workmen''s Compensation Commissioner. Thus the writ petition stands dismissed.