Rajbir Singh vs S.K.S. Yadav
1995 Latest Caselaw 323 Del

JUDGMENT

P.K. Bahri, J.

(1) This writ petition has been filed seeking quashment of the order dated August 26, 1993, passed by respondent No. 1 and for quashing of the proceedings being continned by Respondent No.1.

(2) Facts of the case, in brief, are that the petitioner while in employment of Respondents 2 & 3 had suffered permanent injury by accident arising out of and in course of this employment whereby his right hand was crushed and was amputated from the wrist. As the petitioner was not given any compensation by the employer, thus he filed a claim for compensation under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'). Vide order dated January 18, 1993, a lumpsum amount of Rs.54,740.00 was allowed to the petitioner as compensation and in addition, a penalty of 50% of the amount was imposed. Interest @ 6% per annum was also levied till the payment was to be made. The petitioner was also awarded Rs.2,000.00 as litigation expenses.

(3) It appears that the Management of Respondent No.2 moved a petition before the Competent Authority seeking review of the order on the plea that petitioner had not suffered any permanent injury and he should be got medically examined and compensation be reduced on the basis of medical report which may be obtained which may show that injury of the petitioner was not of permanent nature and his condition had improved. On the basis of this petition, the Competent Authority- Respondent No.1 has re-opened the case and is proceeding in the matter and has passed the impugned order which is under challenge.

(4) The short question which arises for decision is whether the Competent Authority under the said statute has any power to re-open the case and review the order on the basis of facts occurring after the passing of the award. The statute has been brought into force to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident by the workmen during the course of employment. Section 3 fixes the employer's liability for compensation. Section 4 lays down the different amounts of componsation. Sub-section (b) of Section 4 lays down that in case of permanent disablement due to the result of injury, an amount of 50% of the monthly wages of the injured workman multiplied by the relevant factor or an amount of twenty-four thousand rupees whichever is more. Clause (c) pertains to amount payable where permanent partial disablement results from the injury and in case of an injury specified in Part Ii of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement. Clause (d) deals with temporary disablement and in that case a half-monthly payment of the sum equivalent to 25% of monthly wages of the workman to be paid in accordance with the provisions of sub-section (2). In the present case, admittedly the compensation has been awarded to the petitioner in respect of permanent disablement and not under Clause (d) which pertains to award of compensation for temporary disablement. Section 6 reads as follows:

"6.Review-

(1) Any half-monthly payment payable under this Act either under an agreement between the parties or under the order of a Commisioner, may be reviewed by the Commissioner, on the application either of the employer or of the workman accompanied by the certificate of a qualified medical practitioner that there has been a change in the condition of the workman or, subject to rules made under this Act, an application made without such certificate.

(2) Any half-monthly payment may, on review under this section, subject to the provisions of this Act, be continued, increased, decreased or ended, or if the accident is found to have resulted in permanent disablement, be converted to the lump sum to which the workman is entitled less any amount which he has already received by way of half-monthly payments."

(5) It is contended before us by learned counsel for respondents 2 & 3 that the proceedings have been re-opened under Section 6 of .the Act. We are of the opinion that Section 6 is not applicable because no half-monthly payment is being given to the petitioner which .was contemplated only when order was to be made under Section. 4(d) of. the Act. where temporary disablement had' been discerned. There is no power of review given in case the order is made for compensation either under Section 4(l)(a), Section 4(l)(b), Section 4(l)(c). It is settled law that unless power of review is conferred by the statute on any quasi-judicial authority'or judicial authority, power of review cannot be exercised. The. matter of review is not procedural in nature but power of review is in the field of substantial law but not in the field of procedural law. (See Patel Narshi Thakershi & Others Vs Pradyumansinghji Arjunsinghji, ). The Patna High Court in the case of Basudeo Rao Vs Jagamath Singh, 1987 Lab.I.C. 565, has also held that there is no such power of review available to the Competent Authority under the Act unless the case falls within the four corners of Section 6 of the Act. Reference was made by counsel for respondents 2 & 3 to M/s. Intra Chemicals & Drugs Pvt. Ltd. Vs Smt.Rupa Narain, 1985 Lab. I.C. 519. This judgment is based on different facts and thus, any thing stated in this judgment is of no help to decide the present case.

(6) No power of review has been conferred on the Competent Authority for reviewing the orders passed under Section 4(l)(a), (b) & (c). Only power of review is conferred in respect of the order which is passed presumably under Section 4(l)(d) of the Act and rightly so because under Section 4(l)(d) of the Act there is a temporary disablement which may be curable and in such a situation if subsequently it comes, out that there has been change, in the medical condition of the employee then obviously a fresh application can lie to the Competent Authority giving the new facts and the Competent Authority can get the employee medically examined. It is possible that in such medical examination it may be found that the workman had either been cured or had suffered permanent disablement. In such a case, review can be made by the Competent Authority and appropriate order made under Section 6 of the Act, but such is not the case where compensation has been awarded under Section 4((l)(a), (b) & (c) of the Act.

(7) In the present case it appears that respondents 2 & 3 want the Competent Authority to re- open the whole issue and hold fresh proceedings with regard to the injury suffered by the petitioner. This is not permissible in law. There is no provision in the statute which can enable the Competent Authority to re-open the issue and start the proceedings afresh.

(8) The learned counsel for respondents 2 & 3 has not been able to point out to any other provision of the statute to support his contention that the proceedings re-opened by respondent No. 1 on the application of respondents 2 & 3 are permissible in law.

(9) We make the rule absolute and allow the writ petition and quash the impugned order as well as the consequential proceedings pending before respondent No. 1 and require respondent No. 1 to take steps to recover the whole of the amount of compensation as awarded in favor of the petitioner and pay the same to the petitioner at the earliest. The parties are, however, left to bear their own costs in this petition.