Allahabad High Court
Mohd. Ikram & Another vs Dy. Labour Commissioner U.P. ... on 7 May, 2013
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No.1
Civil Misc. Writ Petition No.15504 of 2011
Mohd. Ikram and another ........ Petitioner
Vs.
Dy. Labour Commissioner, U.P.
Saharanpur and others ........ Respondents
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Hon'ble Tarun Agarwala,J.
Two sons of the petitioner died during the course of employment on 20th October, 2008. It is alleged that the death occurred on account of leakage of a gas in the factory. A first information report was also lodged and the incident was also reported in the newspapers. The petitioner filed a claim application before the Commissioner Workmen's Compensation for a sum of Rs.8,85,360/-. The Commissioner after considering the matter gave an award dated 7th December, 2010 allowing the claim and awarding a sum of Rs.4,42,740/-. The employer, being aggrieved, by the said award filed a recall application, which was allowed by an order dated 14th February, 2011 and, by the same order, the claim of the petitioner was also rejected. The claimants, being aggrieved, by the said order has filed the present writ petition.
Heard Sri A.K.S. Bais, the learned counsel for the petitioners and Sri Vivek Singh, the learned counsel for the respondent.
The learned counsel for the petitioner submitted that there is no provision under the Workmen's Compensation Act for review of an order passed by the Commissioner Workmen's Compensation and, consequently, the impugned order is patently without jurisdiction and is liable to be quashed.
On the other hand, it was contended that the authority has the inherent power to recall its order and in any case, where fraud is played, the authority can always review its order.
In order to appreciate the rival contention of the parties, it is necessary to have a look into certain provisions of the Workmen's Compensation Act. Section 23 of the Act read with Rule 41 of the Workmen's Compensation Rules makes certain provisions of Code of Civil Procedure applicable to proceedings before the Commissioner. For facility, Section 23 of the Act and Rule 41 of the Rules are extracted hereunder:-
"23. Powers and procedure of Commissioners.- The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, [ and the Commissioner shall be deemed to be a Civil Court for all the purposes of [section 195 and of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)]].
41. Certain provisions of Code of Civil Procedure, 1908, to apply.- Save as otherwise expressly provided in the Act or these Rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21, Order XVII; and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable.
Provided that--
(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced."
A perusal of the aforesaid provision indicates that only certain provisions of the Code of Civil Procedure are applicable to proceedings before the Commissioner Workmen's Compensation. Section 114 or Order XLVII of the Code of Civil Procedure are not applicable, which relates to review. These provisions have not been included and, consequently, the Court is of the opinion that the power of review has been specifically excluded under Section 23 of the Act read with Rule 41 of the Rules.
Rule 32(2) of the Rules provides that the Commissioner after pronouncing the decision has no power to make any addition or alteration in the judgment other than correction of a clerical or arithmetical mistake arising from any accidental slip or omission. For facility, the said provisions is extracted hereunder:-
"32(2). The Commissioner, at the time of signing and dating his judgment, shall pronounce, his decision, and thereafter no addition or alteration shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission."
From the aforesaid provisions, the Court is of the opinion that the Commissioner has the power to correct clerical or arithmetical mistake arising from accidental slip or omission in his judgment but has no power to review his judgment. Since there is no statutory provision conferring any power of review on the Commissioner under the Workmen's Compensation Act either specifically or by necessary implication, the Commissioner has no power to review his own decision.
In Raman Agnihotri Vs. Commissioner Workmen's Compensation, Kanpur and others, 2009 (120) FLR 967 the Court held that the Commissioner Workmen's Compensation has no power to review his judgment.
The learned counsel for the respondent has relied upon a decision in United India Insurance Com. Ltd. Vs. Rajendra Singh, AIR 2000 SC 1165 wherein the Supreme Court held that the Motor Accident Claims Tribunal had the power to review its own order where fraud was played upon it.
There is no quarrel with the aforesaid proposition. No Court or Tribunal can be regarded as powerless to recall its own order, if it is convinced that the order was obtained by fraud or misrepresentation. In the instant case, there is no plea of fraud being played. The Court finds that the Commissioner while passing the first order allowing the claim had considered all the evidence and the submission of the claimants as well as the owner and thereafter gave an award. The recall application was filed by the owners on the ground that certain facts and evidence had not been considered. A plea of misappreciation of evidence was raised. No plea of fraud was alleged by the owners. The Court is consequently, of the view that in the absence of a plea of fraud being raised, it was not possible for the Commissioner to reappreciate the entire arguments or reconsider the matter de novo or review its own judgment.
In the light of the aforesaid, the order of the Commissioner dated 14th November, 2011 allowing the recall application and rejecting the claim of the petitioner is patently illegal and without jurisdiction, which cannot be sustained and is quashed.
The writ petition is allowed.
Order Date :- 7.5.2013
Bhaskar
(Tarun Agarwala, J.)
