Judgment:
Amitava Lala, J.
1. This appeal has been preferred by the appellant coupled with an application for condonation of delay of 336 days. Parties have exchanged affidavits in the application for condonation of delay. The ground taken by the appellant is that award was made on 6th December, 2007. A review application was made before the Court of workmen's compensation, which was rejected on 31st March, 2008. Again a review application was made which was also rejected on 12th November, 2008, therefore, there is no remedy for the appellant excepting filing of the appeal. There is no deliberate cause of delay in filing the appeal. When we have called upon learned Counsel appearing for the appellant to give reply whether application for review is available for the court of workmen's compensation or not, he answered that as per Rule 4 of the Workmen's Compensation Rules, 1924 (for short 'the Rules') he is entitled to make application for review. Although, the learned Counsel has not referred Section 6 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act), but the same also makes provision for review. Both the provisions are quoted hereunder:
4. Procedure on application for review.-If, on examining an application for review by an employer in which the reduction or discontinuance of half-monthly payments is sought it appears to the Commissioner that there is reasonable ground for believing that the employer has a right to such reduction or discontinuance, he may at any time issue an order withholding the half-monthly payments in whole or in part pending his decision on the application.
6. Review.-(1) Any half-monthly payment payable under this Act, either under an agreement between the parties or under the order of a Commissioner, 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, on application made without such certificate.
(2) Any half-monthly payment made, 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.
2. Upon going through the provisions as made in the Act and the Rules, we find that the provision for review is made for specific purpose. When we asked the question as to why the review applications were made, it has been categorically answered that the review applications were made since the award has been passed ex parte, but from record we find that the ex parte order, which was passed' earlier, has been recalled on payment of cost and thereafter the proceeding was contested. The appellant has already filed affidavit contradicting the stand of the opposite party/parties. Even he has cross-examined the witnesses. When we asked the question that if the order is passed ex parte, why recalling application has not been made, no fruitful answer has been given by the learned Counsel for the appellant. It has been contended by the learned Counsel appearing for the respondent that a writ petition was also filed challenging such order, when the Court cautioned him from taking such type of stand. Therefore, it appears to us that the intention of the appellant is not fair but deliberate to delay the payment of claim amount to the claimant, who are ultimate beneficiaries under the , Statute, a beneficial piece of legislation.
3. That apart, even we find certain principles of Code of Civil Procedure to apply it in determining the cause, we shall be able to find that review can be made only by a person who has no right to prefer an appeal or who has not preferred an appeal having such right. Therefore, from no angle it appears to us that the application for condonation of delay has been made with any genuine cause, which seems to be sufficient for the purpose. On the other hand, we find that the intention of the appellant is not proper, by which the claimant's right under the beneficial piece of legislation has been sufficiently suffered. Therefore, the application for condonation of delay is not only to be dismissed but is dismissed with cost assessed as Rs. 5,100. As a consequential effect the appeal is dismissed, however, without imposing any cost. The workmen compensation commissioner is directed to release the amount of compensation, if deposited, in favour of the claimant. In case it has not been deposited, the same will be deposited within 15 days from this date for the purpose of immediate release of the said sum thereafter.