Gujarat High Court
Gujarat State Warehousing ... vs Rahimabai Siddik Rayma on 18 November, 2021
Bench: N.V.Anjaria
C/FA/566/2021 IA ORDER DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 3 of 2021
In R/FIRST APPEAL NO. 566 of 2021
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GUJARAT STATE WAREHOUSING CORPORATION
Versus
RAHIMABAI SIDDIK RAYMA
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Appearance:
MR PJ KANABAR for the PETITIONER(s) No.
MR MA KHARADI for the RESPONDENT(s) No.
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 18/11/2021
IA ORDER
Heard learned advocate Mr.P.J. Kanabar for
the applicant and learned advocate Mr.Kharadi for the
respondents.
2. The review applicant herein is the appellant
in the First Appeal which is directed against
judgment and award dated 03rd December, 2020 passed by
learned Commissioner under the Workmen Compensation
Act in Workmen Compensation (Fatal) Case No.10 of
2019. While the appeal was admitted by order dated
12th February, 2021 on the substantial questions of
law mentioned in the order, the Civil Application for
stay was dealt with by deciding Civil Application
No.2 of 2021 as per order dated 02nd September, 2021.
3. It is the aforementioned order dated 02 nd
September, 2021 passed in the Civil Application for
say which is sought to be reviewed by filing the
present review application.
C/FA/566/2021 IA ORDER DATED: 18/11/2021
3.1 For ready convenience, order dated 02nd
September, 2021 is extracted in its entirety
hereinbelow.
"Order in Civil Application for Stay
Heard learned advocate Mr. P. J. Kanabar
for the applicant Corporation and learned advocate
Mr. M. A. Kharadi for the respondent Employee. 2.
In this Civil Application, stay was granted by this
court as per order dated 12.2.2021 while issuing
Rule. The amount awarded by the Workmen
Compensation Commissioner, judgment and award of
which is impugned in the First Appeal, has already
been deposited being the statutory requirement. 3.
Today, the application comes up for confirmation of
stay. In the facts and circumstances of the case,
the stay granted earlier on 12.2.2021 stands
confirmed in the same terms. Civil Application
stands disposed of.
Rule is made absolute.
Order in Civil Application for disbursement
Heard learned advocate Mr. M. A. Kharadi
for the applicant and learned advocate Mr. P. J.
Kanabar for the respondent Corporation.
2. By means of this civil application, the
applicant employee has prayed for disbursement of
the 40% amount out of the total amount of Rs.
8,48,964/-, which came to be deposited by the
respondent original appellant Corporation pursuant
to judgment and award by the court of Workmen
Compensation Commissioner delivered in Workman
Compensation (Fetal) Case No. 10/2019.
3. In support of the prayer to disburse 40%
amount out of the total deposited, it is stated
that proceedings before the Workmen Compensation
Commissioner remained pending for almost a decade
and during this period, the applicants who are the
heirs of the deceased starved without money.
4. It appears that the deceased was working as
labourer in the godown of the respondent
Corporation and due to blowing of roofs of the
godown, which fell on the applicant employee, the
workman suffered injuries to succumb to death. The
compensation came to be awarded by the Workmen
Compensation Commissioner. The appeal is admitted
and it may take long time before it could culminate
C/FA/566/2021 IA ORDER DATED: 18/11/2021
into final decision. When the compensation is
already deposited, it would be legitimate to seek
benefit thereof. Therefore, partial disbursement
out of the total deposited would subserve the ends
of justice during the pendency of the First appeal.
5. Accordingly, it is directed that the
applicants herein shall be disbursed total amount
of Rs. 3,00,000/- out of the total deposited to be
paid in equal proportion. Workmen Compensation
Commissioner shall follow the procedure and verify
the identity of the applicants and transfer the
amount to their respective share in the their
respective bank accounts directly.
6. Remaining amount shall be invested with the
nationalised bank in a cumulative fixed deposit
initially for a period of three years and
renewable, the receipt of which shall remain in the
custody of Nazir of the court concerned and shall
not be permitted to be utilised for any purpose
including for raising of loan of any kind without
permission of the court.
7. This application is allowed and disposed of
with the aforesaid terms."
3.2 Pursuant to the judgment and award of the
Workmen Compensation Commissioner impugned in the
appeal, Rs.08,48,964/- was deposited by the original
appellant which was the amount together with
interest. While granting stay of the said judgment
and award, the Court permitted Rs.03,00,000/- out of
the total deposited as above to be disbursed to the
respondents in equal proportion being the heirs of
the deceased employee. The order came to be passed in
the Civil Application for stay as well as regarding
disbursement after hearing both the sides.
4. Seeking review of the order dated 02 nd
September, 2021, more particularly in respect of the
amount allowed to be disbursed to the extent of
Rs.03,00,000/- to the kith and kin of the workman, it
C/FA/566/2021 IA ORDER DATED: 18/11/2021
was submitted that the order in that regard deserves
to be reviewed. It was urged, referring to the aspect
in the nature of contentions raised before the Court
of Workmen Compensation that the employee was not in
regular service of the appellant Corporation. It was
harped that evidence was scant to suggest that
employer-employee relationship ever existed.
4.1 Decision of the Supreme Court in Om Prakash
Batish v. Ranjit @ Rambir Kaur [(2008) 12 SCC 212]
was pressed into service, to submit that under
Section 2(n) of the Workmen Compensation Act, 1923,
employee concerned would not fall within the scope of
workman. It was submitted that when there was no
evidence showing employer-employee relationship,
disbursement of the part of the amount was not
justified.
5. The grounds raised on behalf of the
applicant seeking review of the order dated 02nd
September, 2021 only touche the merits of the appeal.
The grounds which may be urged in the appeal to
challenge the award of the Workmen Compensation
Commissioner could hardly be a ground to review the
order. Not only that order under review is interim
order regarding disbursement, the Court in its
discretion and taking into consideration the totality
of the facts and circumstances, directed disbursement
of 40% of the total deposited amount. Order of such
nature cannot be reviewed when the First Appeal is
pending and when the grounds seeking review/recall of
the order are the grounds of merits of the appeal.
C/FA/566/2021 IA ORDER DATED: 18/11/2021
6. No case is made out for reviewing the order.
The present application is dismissed.
7. At the same time, it is observed that it
will be open for the appellant to seek fixation of of
the hearing of the main First Appeal after passage of
four weeks.
(N.V.ANJARIA, J)
ANUP
