Smt. Kalpana Ghosh vs The Garrison Engineer (G E)
2022 Latest Caselaw 837 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                          Review Pet. No.44 of 2019

Smt. Kalpana Ghosh
                                                               .........Petitioner(s)
                                      Versus
The Garrison Engineer (G E), 872, Engineering Service Works & Another
                                                             .........Respondent(s)

For Petitioner(s)                  : Mr. Somik Deb, Sr. Advocate,
                                     Mr. S. Majumder, Advocate.
For Respondent(s)                  : Mr. Bidyut Majumder, Asstt. S.G.,
                                     Mr. Samarjit Bhattacharjee, Advocate.

    HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY

                                      Order
08/09/2022

This review petition has come to be filed seeking to challenge

an order dated 07.11.2016 passed in MFA(WC) No.17/2012 in the case of

Garrison Engineer, 872, Engineers Works Section vs. Smti Kalpana

Ghosh & another which is reproduced hereinbelow :

"Heard Mr. H. Deb, the learned Assistant Solicitor General representing the appellant. Also heard Mr. R. Dutta, the learned counsel for the respondent No.1/claimant and Mr. S. Bhattacharji, the learned counsel for the respondent No.2.

The Commissioner, Workmen's Compensation, West Tripura in terms of the judgment dated 03.3.2012 passed in T.S.(W/C) No.24 of 2009 had ordered the appellant to pay Rs.6,45,840/- together with interest @12% per annum from the date of accident, i.e. 19.12.2007 to the respondent No.1 within 45 days.

The learned counsel for the respondent No.2 has informed this Court that the respondent No.2 has paid the compensation with interest accrued thereon to the respondent-claimant in the meantime.

In view of this development, it becomes obvious that the appellant is in no way liable to satisfy the award and as such, the appeal has become infructuous.

Under the circumstances, the appeal stands disposed of as infructuous.

It is made clear that the appellant has no liability whatsoever to the respondent-claimant. Any amount already deposited by the appellant shall be refunded by the Commissioner, Workmen's Compensation without any delay."

2. Mr. Somik Deb, learned senior counsel appearing on behalf of

the review petitioner, asserts that the submission made on behalf of

respondent No.2-Contractor to the effect that the contractor had paid the

compensation with interest approved thereon to the respondent-claimant, in

the meantime as recorded in the orders, is inaccurate and wrong and review

of which is sought for.

3. After disposal of MFA(WC) No.17/2012 by this Court, the

review petitioner moved the learned Commissioner of Workmen's

Compensation (hereinafter referred to as Commissioner), who by order

dated 18.08.2018 under Annexure-3, noted the facts that the Opposite Party

No.2-The Garrison Engineer (GE) had deposited a sum of Rs.9,93,850/-

(rupees nine lakh ninety three thousand eight hundred fifty) before the

Commissioner and thereafter had preferred MFA(WC) No.17/2012

challenging their liability of payment of compensation since, according to

them, Opposite Party No.1-Sri Ajoy Acharjee, Contractor had employed the

deceased for electrical work. It also appears from the said order that the

Hon'ble Gauhati High Court of Agartala Bench vide order dated 12.02.2013

sent the lower court records to the Commission for disbursement of

deposited amount to the petitioner i.e. Smt. Kalpana Ghosh.

4. It further appears therefrom that the Commission disbursed a

sum of Rs.4,95,025/- (rupees four lakh ninety five thousand twenty five) to

the petitioner by cheque and kept a sum of Rs.4,96,925/- (rupees four lakh

ninety six thousand nine hundred and twenty five) in fixed deposit in the

name of Smt. Kalpana Ghosh for 5(five) years as reflected in order dated

22.02.2013. Thus, the fixed deposit certificate had matured and, hence, the

petitioner had sought for release of the same in her favour.

5. However, the Commissioner took into consideration the

direction issued by this High Court vide order dated 07.11.2016 in

MFA(WC) No.17/2012 and thereafter called upon the contractor to provide

any evidence or receipt of payment of Workmen's Compensation to the

claimant. The Commissioner, however, restrained the petitioner from

encashing the fixed deposit amount. In view of such a situation, the present

review petition has come to be filed.

6. Mr. Bidyut Majumder, learned Assistant Solicitor General

appearing for the respondent No.1-Garrison Engineer, supported the

impugned order, in particular, the final paragraph of the order cited

hereinabove where this Court made it clear that the appellant-Garrison

Engineer has no liability whatsoever to the respondent-claimant. He also

asserted that the said finding of this High Court ought not to be interfered

with.

7. Upon notice issued to the respondent-Contractor, the contractor

has passed away in the meantime, and his legal heirs have appeared through

counsel. Mr. Samarjit Bhattacharjee, learned counsel appearing on behalf of

the legal heirs, submits that they have no knowledge of the workings of their

late father nor do they have any documents available presently to evidence

payment of any amount to the petitioner-claimant. Consequently, the

assertion made on behalf of the review petitioner, that recording of the fact

that the review petitioner had been paid compensation as well as interest by

the contractor, is found to be inaccurate and not a fact. However, Mr.

Bhattacharjee, learned counsel appearing for the legal heirs of the contractor,

raises a contention that since the impugned order, review of which is sought

for, was passed in the presence of the counsel representing the review

petitioner, they ought not to be allowed to question the said fact.

8. Having heard learned counsel for the respective parties and

perused the records of the case as well as proceedings pending before the

Commissioner, this Court is of the considered view that the finding recorded

in the order dated 07.11.2016 in MFA(WC) No.17/2012 was based on a

statement made by the counsel who appeared for the Contractor. This

statement was vociferously objected to by the review petitioner before the

Commissioner and the contractor was also called upon by the Commissioner

to produce any evidence, if at all available with him i.e. receipt of payment.

As records stand as on date, no such receipt was submitted by the contractor

before the Commissioner.

9. The respondent-Garrison Engineer admittedly had deposited a

total sum of Rs.9,93,850/- (rupees nine lakh ninety three thousand eight

hundred fifty) before the Commissioner and had also challenged their

liability for payment of the same. The said MFA(WC) No.17/2012 came to

be disposed of by the impugned order dated 07.11.2016 with the following

findings :

"It is made clear that the appellant has no liability whatsoever to the respondent-claimant."

10. In view of such recording of facts, review has been sought for

inter alia based on an error of record. In other words, there is no evidence as

on record before this Court that any amount had been paid by the contractor

in favour of the claimant and no such evidence was also filed before the

Commissioner. Consequently, this Court is left with no other alternative

other than to hold that the finding arrived at in the third paragraph of the

impugned order has no factual basis.

11. In view of the aforesaid finding, this Court is of the considered

view that while this Court does not interfere with the finding of liability

arrived at in the impugned order dated 07.11.2016 since it is clear therefrom

that the Garrison Engineer has no liability, the review petition should be

allowed to the extent that the amount deposited by the respondent-Garrison

Engineer before the Commissioner and part of the amount kept in fixed

deposit thereof be released in favour of the petitioner-claimant along with

approved interest thereon. However, since Garrison Engineer is the principal

employer who had engaged the contractor and had no liability towards the

claimant, yet has deposited the awarded amount before the Commissioner.

12. It would be appropriate in the present circumstances to release

the fixed deposit made by the Commissioner in favour of the petitioner-

claimant and further grant liberty to the Garrison Engineer to take all

necessary steps and/or adopt any such procedure for recovery of the said

amount from the contractor or from his legal heirs i.e. respondents No.2 to 4.

13. With such liberty as recorded hereinabove and finding as

arrived at, the review petition stands disposed of.

Pending application(s), if any, also stands disposed of.

(INDRAJIT MAHANTY), CJ

Pijush