V.K. Gupta, C.J.
1. In terms of the Court order dated 30th November, 2005, explanatory reply-affidavit by respondent No. 3 is stated to have been filed. This, however, is not on record. It is directed to be placed and tagged on the file. A copy of the reply-affidavit has been shown to me by Mr. M.S. Chandel, learned Advocate General appearing for respondent No. 3.
2. The text of the order dated 30th November, 2005 clearly reveals that respondent No. 3 had failed to exercise his jurisdiction as well as he failed to discharge his statutory obligation of deciding Issue No. 3 one way or the other. Instead, as far as Issue No. 3 is concerned, he avoided and skirted to return any positive finding on this Issue by merely observing that the marriage between respondent No. 1 and deceased Man Bahadur 'has come into shadow of doubts'. After making this impertinent observation, he went on to also observe that no compensation amount would be released in favour of respondent No. 1 'until or unless Legal Heirs Certificate/Dependent Certificate/Succession Certificate are produced to the satisfaction of the Court'. After making these observations and despite the fact that he failed to return any positive finding on Issue No. 3, the Commissioner went on to direct, after assessing and computing the compensation amount, the petitioner-Insurer to deposit the same before him.
3. In the explanatory reply-affidavit, respondent No. 3 has admitted his aforesaid lapse and has submitted that if the matter is remanded to him he shall rectify the error, make amends and decide Issue No. 3 on its merits.
The expression 'dependent' has been defined in Section 2(d) of Workmen's Compensation Act, 1923. As per this definition, dependent includes a widow of the deceased workman. Section 22 of the Act provides for the manner in which an application has to be filed as well as prescribes the form of the application and clearly stipulates about the filing of the application for compensation by the dependent of a deceased workman. Apart from these two statutory provisions in 1923 Act, as per common law principles also if a workman covered by 1923 Act dies in an accident arising out and in the course of his employment (refer to Section 3 of 1923 Act), his dependent is entitled to receive compensation from the employer (from the Insurer of the employer if the employer has been insured vide a valid insurance policy). It goes without saying, therefore, that the dependent is entitled to maintain a compensation application before the Commissioner under 1923 Act.
Section 19 of 1923 Act reads as under:-
19. Reference to Commissioners.-(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner.
(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.
4. A bare look at Section 19 clearly suggests that if any question arises in any proceedings under the 1923 Act as to the liability of any person to pay compensation or as to the amount or duration of compensation, every such question shall, in default of an agreement between the parties, be decided by the Commissioner. Undoubtedly, the liability to pay compensation also includes the entitlement to receive compensation by a dependent in the proceedings initiated at her instance before the Commissioner under 1923 Act. The sum and substance of the aforesaid discussion, therefore, leads to the irresistible conclusion that it is the statutory obligation of the Commissioner under 1923 Act to settle every Issue and dispute regarding the entitlement of a claimant-applicant before him to receive compensation on account of the death of workman. It is not open to the Commissioner, therefore, to say, in the proceedings pending before him under 1923 Act that the status of the applicant-claimant or the Issue relating to her dependency and consequently her entitlement to receive compensation should be adjudicated upon by some other forum such as a Civil Court and based on the decision of such a forum, the Commissioner shall settle the compensation entitlement vis-a-vis the employer and the applicant-claimant. This is -wholly impermissible under law.
5. Actually a bare look at Sub-section (2) of Section 19 (supra) clearly suggests, beyond any shadow of doubt that the jurisdiction of a Civil Court has been barred to decide or deal with any question which is required to be settled, decided or dealt with by the Commissioner under the 1923 Act. Since Sub-section (1) of Section 19 (supra) clearly enjoins upon the Commissioner an obligation to settle the issue of entitlement or the right of a dependent to receive compensation, no Civil Court has jurisdiction to decide upon such an issue and on this count also the action of respondent No. 3 in sending respondent No. 1 to an alternative Forum for adjudication or a finding on the issue of her dependency or entitlement was palpably wrong in law. The clear mandate of law as discussed above is that it is the Commissioner and Commissioner alone who is enjoined to settle every such Issue and dispute, of course based upon the material which is either available before him or which is brought before him by way of evidence of the parties. The jurisdiction of the Commissioner therefore, would also include an obligation upon him to decide, whether a claimant who claims to be the dependent of the deceased workman in fact is was her dependent and whether therefore she is entitled to receive compensation on account of the death of the deceased workman.
6. In the present case even though the Commissioner had framed Issue No. 3 yet, perhaps because of ignorance of law on his part or the lack of understanding of correct legal position by him he skirted and avoided to return a finding on Issue No. 3 and instead deferred it by making the above quoted observations about respondent No. 1 obtaining 'Legal Heirs Certificate/Dependent Certificate/Succession Certificate'. Since respondent No. 3 has now admitted about such a lapse on his part, I do not wish to proceed against him. Based on his own admission as well as based on the result of the aforesaid discussion, this petition is disposed of by making the following order:-
1. The matter is remanded to respondent No. 3.
2. Respondent No. 3, in the light of the aforesaid observations is directed to decide Issue No. 3 and return a positive finding with respect thereto. If in the course of such decision it occurs to respondent No. 3 or to the parties that there is either insufficient evidence or that some material on record has to be brought, respondent No. 3 either suo motu or at the instance of the parties or any one of them may bring on record additional material as and by way of aid to deciding Issue No. 3.
3. If the finding on Issue No. 3 goes in favour of respondent No. 1, the amount deposited by the petitioner with the Commissioner shall be disbursed to respondent No. 1.
4. If, however, the finding on issue No. 3 goes against respondent No. 1, this amount shall be returned to the petitioner because the only consequence, the only natural corollary of such finding on Issue No. 3 would mean that despite the Commissioner's finding on other Issues, the claim application filed by respondent No. 1 would be liable to be dismissed on the ground of her not being a dependent of the deceased workman.
7. The matter on remand is fixed before the Commissioner on 17th April, 2006. All the parties through their learned Counsel are directed to appear before the Commissioner on that date. The Commissioner shall proceed to dispose of the matter in the light of the aforesaid observations very very expeditiously and in any event before 31st July, 2006.
CMP No. 306 of 2004.
In view of the disposal of the main petition, this application shall stand disposed of. Interim order dated 7th July, 2004 is vacated.