Sona Shah vs The Commissioner for Workmen's Compensation and Another

G.M. Mir, J.—On 12-5-1970 Ghulam Nabi son of the Petitioner received fatal injury out of and during the course of his employment with

Respondent No. 2. An application for the award of compensation under the Workmen's Compensation Act, 1923 (Act VIII of 1923)(hereinafter

referred to as the 'Act' for short) was presented before the Commissioner by the Petitioner who in consequence passed an ex-parte order

awarding compensation amounting to Rs. 3,700/- in his favour. Respondent No. 2 was directed by the Commissioner to deposit the sum so

awarded by 26th December, 1972. We however failed to deposit the amount by 26th December, 1972. On 8-1-1973 the Petitioner submitted an

application before the Commissioner stating therein that as no compensation till then had been deposited by the Respondent No. 2 proper steps

may be taker; for its recovery and payment of the same to the Petitioner. The Commissioner directed the Recovery Officer (Tehsildar) to recover

the amount from Respondent No. 2 as arrears of land revenue. It is alleged that before the Recovery Officer, Respondent No. 2 submitted a

receipt and an affidavit purporting to have been executed by the Petitioner witnessing the receipt of the full amount of Rs. 3,700/- as compensation

awarded to him. The matter was referred back to the Commissioner by the Recovery Officer with the remark that in view of the receipt and the

affidavit no amount was due from Respondent No. 2 that could be realised from him. The Petitioner thereupon contended before the

Commissioner firstly that Respondent No. 2 had made no payment of the sum awarded to him as the receipt and the affidavit were got executed

by him under fraud and deceit. He further contended that the provisions of Section 8(1) of the Act were mandatory in nature and that Respondent

No. 2 was bound to deposit the compensation money with the Commissioner for disbursement to the Petitioner. The Commissioner embarked on

an inquiry with regard to this matter and directed the parties to produce evidence as to whether payment has or has not been made. Respondent

No. 2 failed to produce any oral evidence but produced before the Commissioner the receipt and the affidavit alleged to have been executed by

the Petitioner in full satisfaction of the payment of the compensation amount. The Petitioner admitted before the Commissioner that the receipt as

well as the affidavit were executed by him but flatly denied to have received any consideration. While Respondent No. 2 failed to adduce any

evidence before the Commissioner, the Petitioner appeared as his own witness and his statement was recorded in the court of which he completely

denied to have received the compensation money though admitted to have executed the receipt as well as the affidavit. The learned Commissioner

vide his order dated 12-8-1974 dismissed the Petitioner's application and held that the amount of compensation had been established to have been

received by the Petitioner and that the circumstances of the case were such that provisions of Section 8(1) of the Act were not attracted. Against

this order of the Commissioner, this writ petition has been filed by the Petitioner.

As a preliminary objection it was contended on behalf of the Respondents that an efficacious remedy by way of an appeal available to the

Petitioner, the present writ petition was misconceived and could not be maintained. In this regard attention was drawn to Sub-section (c) of

Section 30(1) of the Act which reads as under:

(1) An appeal shall lie to the High Court from the following orders of the Commissioner, namely:

X X X X

(c) an order providing for the distribution of the compensation among the dependants of a deceased workman, or disallowing any claim of a

person alleging himself to be such dependant.

On a plain reading of this Sub-section, however, the dispute in question could not be said to be hit by this provision of law. It has reference only

to the distribution of compensation money among various dependants of the deceased workman and not to the award of compensation with regard

to the sole dependant of the deceased workman. Under this sub-section an order of the Commissioner in a dispute with regard to the distribution

of compensation amongst various dependants of a deceased workman allowing or disallowing a claim of any particular dependant could be

appealed against. As there was no such dispute before the Commissioner and the impugned order bore no reference to any such dispute the order

of the Commissioner could not be said to fall under Sub-clause (c) of Section 30(1) of the Act. Then it was contended that the case falls under

Sub-clause (e) of Sub-section (1) of Section 30 of the Act and as an order passed under this sub-clause was appealable no writ would lie. This

sub-clause provides that an order refusing to register a memorandum of agreement or registering the same or providing for the, registration of the

same subject to conditions was an order against which an appeal would lie to the High Court. If the receipt and the affidavit executed by the

Petitioner in this case were to be regarded as equivalent to a memorandum of agreement then other things being equal, under this provision of law

an appeal would no doubt lie to the High Court. Though it is doubtful whether the receipt and the affidavit executed by the Petitioner could be

regarded as equivalent to a memorandum of agreement, yet even if for the sake of argument it is assumed that the contents of the documents do

give rise to an inference to that effect, the appeal would not lie to the High Court as the provisions of Section 28 of the Act which deal with the

registration of such agreements are not attracted in the present case. Section 28 of the Act inter alia provides that where the amount of any

lumpsum payment as compensation has been settled by agreement, which was payable to a woman or a person under legal disability, the

memorandum thereof is required to be sent by employer to the Commissioner who has to record the memorandum in a register in a prescribed

manner on being satisfied as to the genuineness of the agreement. The words ""or to a dependant"" obviously do not occur in Section 28 of the Act.

The agreement executed by an injured workman himself or by a woman or by a person under some leg al disability only may be treated by the

Commissioner as memorandum of agreement and on being satisfied as to its genuineness the Commissioner was empowered to record the same in

a register prescribed for this purpose. Before coming into force of the Repealing and Amending Act, 1924 (VII of 1924) the words ""or to a

dependant"" did occur after the words ""to a woman or a person under a legal disability"" in Sub-section (1) of Section 28 of the Act. These words

have been deleted by the Repealing and Amending Act, 1924 which goes to show that the provisions of Section 28 of the Act were not applicable

to a case where the worker had died, as in the instant case and his dependant had entered into a settlement, as is alleged by the Respondents, here

by way of agreement with the employer. In the instant case the workman having died, his dependant the Petitioner, could not in law have entered

into any agreement or settlement with the employer and if an agreement in fact had been entered into the same could not be given effect to and

registered keeping in view the provisions of Section 28 of the Act. The case therefore would not fall within the mischief of Section 30(1)(a) of the

Act and no appeal would lie against the order registering the alleged memorandum of agreement between the parties. There thus being no other

efficacious remedy available to the Petitioner the writ petition u/s 103 of the Constitution of Jammu and Kashmir for a certiorari was the only

remedy available to him. As such the preliminary objection that the writ petition was not maintainable because of the availability of another equally

efficacious remedy cannot be entertained and is therefore, rejected.

The learned Commissioner appears to have given a perfunctory thought to the provisions of Section 8 of the Act. The provisions of Section 8 of

the Act are mandatory in nature and have been introduced in the Act primarily to safeguard the interests of the dependants of the deceased

workman. The provision has been incorporated for various reasons; one of them being that the workman himself having died the heirs who may be

entitled to receive the compensation may be able to obtain their share of the compensation money through the Commissioner. This was also to

safeguard the interests of the Defendants so that they may not fall prey to the machination of the employer and be not subjected to deceit and

fraud. Sub-section (1) of Section 8 of the Act runs as follows:

No payment of compensation in respect of a workman whose injury has resulted in death and no payment of a lump sum as compensation to a

woman or a person under legal disability, shall be made otherwise than by deposit with the Commissioner and no such payment made directly by

an employer shall be deemed to be a payment of compensation.

It was quite clear therefore, that the payment of compensation money to the Petitioner in the instant case not be deemed to be a payment of

compensation even if it be assumed that the amount of compensation was paid to the Petitioner. The learned Commissioner has failed to appreciate

properly and apply this provision of law to the case at hand. According to the Commissioner the section was applicable only in situations where a

number of dependants of deceased workman were alive and were claiming the distribution of the compensation money but according to him, there

being only one dependant claiming the money in the instant case, the Commissioner was of the view that the disbursement of the compensation

money direct to him by Respondent No. 2 was sufficient compliance with the requirements laid down in Section 8 of the Act. I however, find

myself unable to agree with this reasoning of the learned Commissioner. The obligation to comply the mandatory provisions of Section 8 of the Act

would not be said to have been strictly and satisfactorily discharged unless the same is followed in letter and spirit. No question of natural justice

could be said to have arisen before the learned Commissioner. The Act does not give reasons for the inclusion of Section 8 in the Act nor its

purpose has been pinpointed. May be one of the purposes was to ensure proper distribution of award money amongst the dependants. But it may

not be the only purpose to be achieved by this provision of law. Other purposes are conceivable and therefore it was not right for the

Commissioner to say that the only purpose to be achieved was to ensure fair distribution of compensation amongst various dependants which

question according to him did not arise in the instant case and therefore, substantial justice has been done and as such no need arose for

demanding strict compliance of Section 8 of the Act.

Even on merits the learned Commissioner should have entertained the plea of Respondent No. 2 with regard to the payment of compensation

money direct to the Petitioner. Though the execution of the receipt as well as the affidavit was admitted by the Petitioner but he flatly denied the

receipt of the consideration. It was of course for the Petitioner to have established the non-payment of consideration. He appears to have done so.

In his statement he has denied to have received any compensation amount and his evidence remains unrebutted in this regard. Mere production of

the documents would not absolve Respondent No. 2 from proving and establishing that the documents in question were in fact executed by the

Petitioner of his own free will and that the consideration money has in fact passed to him. It appears that the learned Commissioner has not

properly evaluated evidence and has failed to consider the important fact that the Respondent has not been able to produce any evidence in

rebuttal. Appreciation of evidence by the learned Commissioner is evidently perverse. Further there is no provision of law in the Act conferring

powers on the Commissioner to embark on an inquiry of this nature. As soon as he had been informed that Respondent No. 2 has failed to deposit

the compensation as directed by him by the specific date fixed for this purpose, he should have taken recourse for the recovery of the

compensation and directed its recovery as arrears of land revenue. The learned Commissioner under such a circumstance had to take recourse to

the provisions laid down in Section 4-A of the Act and direct the recovery of the compensation money and other amounts such as interest and

penalty from Respondent No. 1. The Commissioner has failed to exercise his powers but instead has embarked on an inquiry which was beyond

his jurisdiction. The impugned order could not have in law been passed by the Commissioner and was on the face of it beyond his jurisdiction.

In Syed Yakoob Vs. K.S. Radhakrishnan and Others, , it has been laid down as follows:

A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are

passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be

issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question

without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is

opposed to principles of natural justice.

I have no doubt in my mind that the Commissioner has acted improperly and illegally and has assumed jurisdiction which did not vest in him. The

order dated 12-8-1974 passed by the Commissioner is therefore, held illegal as the defect was apparent on the face of the record. The order

cannot be sustained and is therefore quashed. No order as to costs.