The Asstt. Engineer, PHED vs Mohammed Hussain

V.S. Kokje, J.—Heard Mr. Vimal Mathur, learned Counsel for the appellant and Mr. J. Gehlot, learned Counsel for the respondent.

This is an appeal u/s 30 of the Workmen''s Compensation Act, 1923. There are two orders which are challenged in this appeal. One is the order dated 4.12.1991 passed ex parte against the appellant granting compensation of Rs. 50,015/- to the workman-respondent. The other order is dated 56.12.1991 by which application for setting aside the ex parte award was rejected by the Court. Since the order dated 26.12.1991 is not of the category of orders against which appealed could be filed u/s 30 of the Act, the only challenge which can be examined in this case is to the order dated 4.12.1991.

A perusal of the record shows that on 11.11.1991 on the notices being found to be served on the appellant and nobody appearing for him, an order to proceed ex parte against him was passed and the case was fixed for evidence on 20.11.1991. On 20.11.1991 the respondent claimant appeared in person with his representative Mr. R.C. Shukla. The claimant workman produced an affidavit and some documents and the Court posted the case for 22.11.1991 for arguments in the case. On 22.11.1991 straightaway arguments were heard and the case was posted for 4.12.1991 for judgment. On 4.12.1991 the judgment was pronounced. Thereafter, Mr. B.K. Sharma, the employer, alongwith his Counsel, presented an application for setting aside the ex parte order dated 11.11.1991. That application was ultimately rejected on 26.12.1991.

It is, therefore, clear from the record that no oral evidence was recorded in the case, no order for taking evidence on affidavits also was made and only on the filing of an affidavit by the claimant, the workman''s case was straightaway fixed for final arguments and was decided after that. On 20.11.1991 when the case was fixed for evidence, without a specific order, the Court could not have accepted the affidavit as an evidence. Moreover, there was clear violation of the procedure prescribed by Section 25 of the Act. u/s 25 it is necessary for the Commissioner to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds, and such memorandum has to be written and signed by the Commissioner with his own hand and shall form a part of the record. The first proviso to Section 25 provides that if the Commissioner is prevented from making such memorandum, he shall record the reason of his inability to do so and shall cause such memorandum to be made in writing from his dictation and shall sign the same, and such memorandum shall form part of the record. The second proviso to Section 25 provides that the evidence of any medical witness shall be taken down as nearly as may be word for word.

In AIR 1950 Gau 116, it was held that an order passed by the Commissioner in violation of the procedure laid down in Section 10-A(4) and Section 25 is a bad order which is liable to be set aside. It was also held in a Division Bench decision of the Calcutta High Court in (1950) 54 Cal. 812 that a medical certificate produced by anybody else than the doctor granting it, is simply hearsay evidence and is not acceptable as proof of injury/extent of disability. In 1981 Lab. IC 359 (J&K) it was held that a medical certificate has to be proved by the testimony of the person granting the certificate and the non-examination of a medical witness is a serious irregularity which vitiates the award.

A perusal of the proceedings of the Commissioner and the award shows that there is no legal evidence led in the case and the Commissioner has based his findings on the affidavit of the workman and the document and medical certificates filed by him. The Commissioner was not entitled to base his award on such evidence.

The award is, therefore, set aside and the case is remanded back to the Commissioner for Workmen''s Compensation for decision afresh in accordance with law. He shall, now record evidence in accordance with Section 23 and Section 25 of the Act and shall also insist on proof of injury and disablement on the basis of medical evidence led before him.

The appellant, however, shall have to pay the costs of these proceedings to the workman. The costs quantified at Rs. 1,000/-.

Parties to appear before the Commissioner for Workmen''s Compensation, Bikaner, on 25.10.1999.