| SooperKanoon Citation | sooperkanoon.com/534991 |
| Subject | Labour and Industrial |
| Court | Orissa High Court |
| Decided On | Sep-08-2009 |
| Judge | B.K. Patel, J. |
| Reported in | 108(2009)CLT826; 2009(II)OLR726 |
| Appellant | Jr. Engineer/Manager, Nesco Ltd., Electrical Section and Two ors. |
| Respondent | Zarina Bibi and Four ors. |
| Disposition | Application allowed |
| Cases Referred | Kamalakanta Pandey v. State |
B.K. Patel, J.
1. Learned Counsel for the petitioner is present.
2. Heard.
3. In this writ application the petitioners have assailed the legality of the order/award dated 28.07.2009 passed by learned Commissioner for Workmen's Compensation-Cum-Assistant Labour Commissioner, Cuttack in W.C. Case No. 211-D/2009, a proceeding for compensation under Workmen's Compensation Act (for short 'the Act').
4. It is submitted by the learned Counsel for the petitioners that on receipt of application for compensation of Rs. 10,00,000/- submitted by the opposite parties the learned Commissioner proceeded ex parte without issuance of notices to the petitioners, exempteo the opposite parties from payment of court fees, allowed their application for condonation of delay and held that the petitioners are liable to pay to the opposite parties award amount of Rs. 3,32,580/- on account of death of deceased Muzubir Raheman due to injuries sustained in an accident arising out of and in course of his employment with the petitioners. It is strenuously contended that the learned Commissioner should have passed the impugned order without giving to the petitioners opportunity to contest the claim.
5. Perusal of the impugned order reveals that along with the application for compensation the claimants/opposite party Nos. 1 to 4 filed application for exemption of court fees and for condonation of delay in filing the claim application. Learned Commissioner perused the claim application and allowed the applications for exemption of court fees and condonation of delay. The wife of the deceased is stated to have been examined preliminarily. On consideration of her statement and documents on record, learned Commissioner held that as the deceased was aged 46 years and was earning monthly wages of Rs. 4,0007-, claimants are entitled to compensation amount of Rs. 3,32,580/-. Thereafter, learned Commissioner, observing that despite provision under Section 10-A(2) of the Act, petitioner did not take any step to deposit the compensation amount, directed the petitioner No. 2 to deposit aforesaid award amount with interest at the rate of 12 per. cent per annum from the date of application within thirty days further stipulating that in case of default in depositing of the award amount within the prescribed period, necessary orders would be passed to impose penalty to the extent of 50 per cent of the awarded amount as per the provision under Section 4-A(3) of the Act. Having so directed, learned Commissioner directed to put up the case record on 28.08.2009 for further order and to:
Send this order along with Notice in Form-I and documents filed by the petitioners along with the claim petition for compliance of the Order by Regd. Post with A.D. The opp. Parties are at liberty to contest the case by filing of objection if any on the said date.
6. Where the Commissioner gives notice to the employer under Section 10-A of the Act and receives his reply denying his liability to pay compensation there is no power given to the Commissioner under Section 10-A to determine the amount of compensation and the liability of the employer. As has been held by this Court in Kamalakanta Pandey v. State 1989 ACJ 633, the phraseology employed in Section 10-A of the Act suggests that the Commissioner is not adjudicating any claim while issuing notice under this Section and that he is only acting in his administrative capacity. In the first place he need not be satisfied that death has occurred out of or in the course of a workman employment; whatsoever the source of his information, the Commissioner may issue a notice to the employer calling upon the latter to submit a statement giving circumstances attending upon the death of the workman. In other words, it is not necessary that the Commissioner is satisfied that the accident has arisen out of or in the course of the employment. It is clear from the wording of Sub-sections (2) and (3) of Section 10-A of the Act that it is open to the employer either to admit his liability or to disclaim the same; and in case the employer has disclaimed the liability the Commissioner has power to proceed further in the matter. Sub-section (4) comes in the picture when the employer had disclaimed the liability. All that the Commissioner can do at this stage is to inform the dependants that the liability has been disclaimed and suggest that the dependants, if so advised, may prefer an application for compensation.
7. After calling for the particulars relating to the accident under Section 10-A the Commissioner has no jurisdiction to straightaway call upon the employer to deposit the compensation amount without adjudging whether the accident arose out of and in the course of employment.
8. The words 'where a Commissioner receives information from any source' in Sub-section (1) of Section 10-A of the Act do not cover an application made by the dependants of a workman. The Commissioner acting under Section 10-A even after making the enquiry envisaged by Sub-section (4) has no power to determine either that the employer is liable to pay the compensation or to determine the amount of compensation. He can only inform any of the dependants of the deceased workman that it was open to the dependants to prefer a claim for compensation.
9. Learned Commissioner has directed to send the impugned order along with the notice in Form-I. Rule 10 of Orissa Workmen's Compensation Rules, 1923 prescribes that notice under Sub-section (1) of Section 10-A of the Act shall be sent in Form-I and accompanied by a copy of Form-II. Employer has to submit his statement in Form-ll. Contents and language in neither Rule 10 nor Forms-I and II reveal that the Commissioner may determine the employer's liability while exercising power under Section 10-A of the Act.
10. The power of the Commissioner to determine the liability of the employer would arise if the dependants make an application on being informed about their right to do so. In that case the application has to be filed under Section 22 of the Act and dealt with according to the procedure prescribed under Sections 23 - 25 of the Act.
11. Thus, prima facie, proceeding before the learned Commissioner is found to be irregular inasmuch as the impugned order informing their liability was passed without notice to the petitioners under Section 10-A(1) of the Act. The petitioners ought to have been heard in the matter of condonation of delay as well as on the merits of the claim application before adjudication of their liability to pay compensation. No doubt the concluding paragraph of the impugned award indicates that the petitioners have been given opportunities to assail the order by filing objection against the impugned award. Petitioners could have approached the learned Commissioner before rushing to the High Court by invoking jurisdiction under Articles 226 and 227 of the Constitution of India. However, the impugned order, being not in accordance with provision under Section 10-A and with Section 22 of the Act is liable to be quashed.
12. However, in view of the fact that the petitioners have been given opportunities to contest the case by filing objection against the impugned order, it is directed that in case the petitioners appear before the learned Commissioner and submit written! statement within a period of thirty days from today, the learned Commissioner shall proceed to dispose of the proceeding along with application for condonation of delay afresh on merit in accordance with law after affording the parties opportunities to substantiate their respective assertions. While disposing of the proceeding afresh, learned Commissioner shall take into account materials placed before him in course of enquiry without being influenced by any observation made or finding recorded in the impugned order.
13. With the aforesaid directions, the writ application is allowed.