Shrikrishna Saw Mill vs The State Of Maharashtra
2011 Latest Caselaw 201 Bom

                         1               wp2845.11

                                           
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                               
               WRIT PETITION NO. 2845 OF 2011




                                       
     Shrikrishna Saw Mill,
     Dharangaon, through its proprietor,
     Shri. Rasiklal Walji Patel,
     Age: 52 years, Occ: Business,




                                      
     R/o. Timbar Market, Dharangaon,
     Tq. Dharangaon, Dist.Jalgaon.        ...PETITIONER 

            VERSUS             




                            
     1.   The State of Maharashtra,
                 
          Through Tahsildar,
          Dharangaon, Dist. Jalgaon.

     2.   Sadashiv Shankar Suryawanshi,
                
          Age: Major, Occ: Service,
          R/o. Gurav Galli, Dharangaon,
          Taluka Dharangaon, 
          District - Jalgaon.           ...RESPONDENTS
      


                          ...
   



     Mr. Vijay B. Patil, Advocate for petitioner.
     Mr. N.R. Shaikh, AGP for respondent No.1.
     Mr. A.S. Bayas, Advocate for respondent No.2.
                          ...





         
                            CORAM: S.S. SHINDE, J.

DATE : 12TH DECEMBER, 2011

ORAL JUDGMENT :

. Rule. Rule made returnable forthwith.

With the consent of learned Counsel appearing for

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the parties, this petition is taken up for final

disposal.

2. This writ petition takes exception to the

order dated 09-02-2010 below Exhibit U-16 and U-20

in Misc. W.C.A. No. 7 of 2005 passed by the

Commissioner for Workmen's Compensation, Labour

Court, Jalgaon.

.

It is the case of the petitioner that,

respondent No.2 herein filed Application W.C.A.

No. 37 of 1998 for compensation under Workmen's

Compensation Act against the petitioner. On

24-12-2004 the learned Commissioner partly allowed

the said application and thereby directed the

petitioner to pay an amount of compensation of Rs.

60,000/- to respondent No.2. On 27-06-2008 the

Commissioner issued recovery certificate.

3. It is the case of the petitioner that,

there was compromise between himself and

respondent No. 2 thereby it was settled to pay an

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amount of compensation of Rs.55,000/-. It is

further case of the petitioner that, the

application was filed before the Labour Court,

Jalgaon supported by the affidavit by the parties

that the matter has been settled and respondent

No. 2 has received the amount of compensation and

hence, prayer was made for recalling the recovery

certificate. It is further case of the petitioner

that, in spite of this, said compromise is not

abided by respondent No.2. In fact, total amount

of Rs.55,000/- was paid to respondent No.2. It

is the case of the petitioner that, an amount of

Rs.55,000/- was paid to the Advocate appearing for

respondent No.2 and in turn, the said Advocate

handed over the amount of Rs.55,000/- to

respondent No.2.

4. Learned Counsel for the petitioner

submits that, the findings recorded by the

Commissioner are perverse. It is further

submitted that, the application filed below

Exhibit U-16 was under the signature of both the

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parties. The petitioner and respondent No.2 both

have filed separate affidavit below Exhibit U-17,

and U-18 supporting to the application below

Exhibit U-16. Affidavit is sworned in personal

capacity by respondent No.2. It is further argued

that, once the application is filed on affidavit

and it is admitted that the matter is amicably

settled and the petitioner had paid the settlement

amount and at the same time, respondent No.2 had

received the said amount, oral evidence has no any

relevance since the documentary evidence was

placed on record bringing to the notice of the

Commissioner that there was settlement between the

petitioner and respondent No.2. It is further

submitted that, respondent No.2 on affidavit

admitted that, he received the amount, however, he

has taken contrary stand before the Court which is

not permissible. Therefore, according to learned

Counsel for the petitioner, the petition deserves

to be allowed.

5. On the other hand, learned Counsel for

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the respondent No. 2 would submit that, the

Commissioner for Workmen's Compensation, Labour

Court, Jalgaon has appreciated the documents on

record and found that the amount of Rs.55,000/-

has not been actually paid to respondent No.2.

Learned Counsel for respondent No.2 invited my

attention to Exhibit-G page 49 of the compilation

of the writ petition and submitted that, though

signatures of respondent No. 2 were obtained on

the affidavit, however, actually amount was not

received by respondent No.2. Therefore, according

to learned Counsel for respondent No.2, the

judgment and order impugned in this petition is

passed after appreciation of the evidence and

findings recorded by the Commissioner are not

perverse and therefore, this Court may not

interfere in the writ jurisdiction.

6. I have given due consideration to the

rival submissions. From the perusal of the

impugned order passed by the Commissioner for

Workmen's Compensation, Labour Court, Jalgaon,

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applications Exhibit U-15 and also U-16 to 19 have

been considered by the Labour Court. It is

observed that, pursuant to the statements of the

parties and documents on record, statement of both

the parties on oath was recorded at Exhibit U-21

and U-22. However, after recording the statement

of both the parties, the Counsel for the applicant

submitted at bar that the amount received from

respondent will be returned to the respondent and

now, the applicant do not want to settle the

matter. Recovery proceedings be continued as per

recovery certificate issued to the Collector,

Jalgaon. It is further observed that, "after

considering the statements of both sides and

considering the submissions of Ld. Counsel of

applicant, it is revealed that, the applicant has

not received the amount against his claim as

contended by parties in their pursis." Therefore,

in the aforesaid circumstances, the Commissioner

held that, there is no question of recalling the

recovery certificate from the Collector, Jalgaon

and accordingly, applications Exhibit U-16 and

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U-20 came to be rejected.

7. Though the Counsel appearing for the

petitioner was at pains to argue that, such amount

was received by respondent No.2, however, on

perusal of the entire compilation of the writ

petition, nothing has been placed on record to

suggest that such amount is received by respondent

No.2. Even before the Commissioner for Workmen's

Compensation, no any proof was placed on record in

the nature of any entry from the bank account to

suggest that the said amount is actually

disbursed/paid to respondent No.2. It is needless

to mention that, any transaction above Rs.20,000/-

should be made either in the nature of Demand

Draft, Cheque etc. However, it is the case of the

petitioner that, the said amount was given in cash

to the Advocate for respondent No.2 and in turn,

the said Advocate has given such amount to

respondent No.2. All these aspects have been

discussed in the order of the Commissioner for

Workmen's Compensation. I do not find any

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perversity in the said findings. As observed

above, any transaction above Rs.20,000/- should

be made either in the nature of Demand Draft,

Cheque etc., however, such proof is not placed on

record. It is not possible to accept such

contention of the Counsel for the petitioner and

the findings recorded by the Commissioner for

Workmen's Compensation are in consonance with the

evidence on record. Writ Petition stands

rejected. Rule discharged.

sd/-

[S.S. SHINDE, J.]

sut/DEC11