Allahabad High Court
M/S Vishal Theator vs Workmen Compensation ... on 11 October, 2012
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 26
Case :- WRIT - C No. - 23155 of 2000
Petitioner :- M/S Vishal Theator
Respondent :- Workmen Compensation Commissioner & Dy.Labour Commissioner
Petitioner Counsel :- R.N.Singh,V.K.Chandel
Respondent Counsel :- C.S.C.
Hon'ble B. Amit Sthalekar,J.
In this writ petition the petitioner is challenging the order dated 10.4.2000 by which the Commissioner, Workmen's Compensation, Azamgarh has recalled his earlier order dated 25.8.1999 on the Review Application dated 20.9.1999 filed by the respondent no.2.
The case of the respondent no.2 was that her husband Sundar Yadav was employed as an Announcer under M/s Vishal Theatre and he died on 24.8.1994 in the premises itself. It is further stated that he was aged about 40 years and was drawing a salary of Rs.1000/- at the time of his death. Hence an application was filed before the Commissioner, Workmen's Compensation under the Workmen's Compensation Act, 1923. The Commissioner, Workmen's Compensation, respondent no.1 after notices were issued to the parties, framed certain issues. After hearing the petitioner as well as respondent nos.2 and 3, the Commissioner Workmen's Compensation held that at one place in the evidence of the respondent no.2 the name of her husband was mentioned as Sundar son of Munashwar, village Hafizpur and at another place it was mentioned as Sunnar son of Munnar, village Balrampur and at 3rd place it was mentioned as Sundar son of Munnar, Vishal Talkies. The Commissioner, therefore, held that the real identity of the husband of the respondent no.2 was not determinable in view of the confusing facts. Besides, he also held that in the course of the proceedings the brother of the deceased, one Lalji Yadav was never produced in evidence although it was stated that he was the real brother of the deceased and if he had been produced in evidence, he could have testified as to the real identity of the deceased. The respondent no.1 has recorded a finding that the S.D.M. in his recommendatory letter has stated that the deceased Sundar was working as Announcer under the petitioner M/s Vishal theatre but no prove or certificate to that effect has been filed by the S.D.M. and therefore, mere recommendatory letter of the S.D.M. cannot be taken on record as evidence of the real identity of the deceased. Accordingly, the respondent no.1 by his order dated 25.8.1999 held that the deceased Sundar was not an employee of the petitioner, M/s Vishal Theatre and that the application under the Workmen's Compensation Act, is therefore, not maintainable and he accordingly dismissed the application.
Subsequently, a review application was filed on 20.9.1999 by the widow of the deceased Smt. Mamta, respondent no.2 wherein she has sought review of the earlier order dated 25.8.1999. This application dated 20.9.1999 has been accepted by respondent no.1 and he has set aside his earlier order dated 25.8.1999 and fixed the case for arguments on 22.4.2000 by the impugned order dated 10.4.2000. Hence the present writ petition.
I have heard Sri Ram Niwas Singh, learned counsel for the petitioner. Notices were issued to the respondents. An affidavit of service on respondent no.2 and 3, has been filed. As per the office report dated 4.9.2012 the registered notice sent by the office has also not been returned back. In the circumstances, service upon respondent nos. 2 and 3 shall be deemed to be sufficient.
Sri Ram Niwas Singh submitted that once the prescribed authority namely Commissioner, Workmen's Compensation has recorded a finding on the basis of the evidence on record that the husband of the respondent no.2 was not an employee of the petitioner, he could not have recalled his own order dated 25.8.1999. Learned counsel further submitted that there is no provision under the Workmen's Compensation Act, 1923 conferring the power of review on the Commissioner. He submits that power of review can be exercised only by a Court of record, and such Court can review its order even under its inherent power. A court or authority, which is not a Court of record, does not have any such inherent power and such an authority does not have any power to review its orders unless the power of review is explicitly conferred upon such authority by statute itself. Sri R.N. Singh further submits that the only exemption to the general rule is that the authority can review his order if such an order has been obtained by fraud.
Having gone through the documents on record, I do not find that there is any such allegation by respondent no.2 that the order dated 25.8.1999 has been obtained by fraud. Moreover, from a close examination of the Act, 1923 itself, it will be seen that the said Act does not confer any power of review on the Prescribed Authority. Besides, the Prescribed Authority under the Act does not have any inherent power of review and, therefore, the only ground on which he could have exercised the power of review, was if the power had been explicitly conferred upon him by the statute or if he was satisfied from the pleadings of the parties that fraud had been played upon him before passing the order dated 25.8.1999.
The Supreme Court in (2010) 9 SCC 437 Kalabharti Advertising vs. Hemant Vimalnath Narichania and others in paras 12 and 13 held as follows:-
"12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karan Singh.)
13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, Major Chandra Bhan Singh v. Latafat Ullah Khan, Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya, State of Orissa v. Commr. Of Land Records and Settlement and Sunita Jain vs. Pawan Kumar Jain this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statue. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction."
In view of the fact situation and case law referred hereinabove , the impugned order dated 10.4.2002 is wholly illegal, arbitrary and is quashed.
The writ petition is allowed.
Order Date :- 11.10.2012/Asha
