Jeevanbhai R. Tandel vs V. Dockendale Shipping and ors

Tipnis, J.—The petitioner has contended that he was a seaman and was in permanent employment of respondents no. 1 & 2. The petitioner has worked as a seaman on several ships for several years. According to the petitioner, during his employment, he was required to go and work for foreign going ships and the last of his such employment was on ship M.V. Okim. According to the petitioner, he was performing hard and strenuous duties for 12 to 13 hours a day. According to the petitioner, he suffered an injury by accident arising out of and in the course of his employment and he was declared permanently unfit for duty. He was working on the ship on 16.5.1990 and he suffered severe headache with vomiting. He was hospitalised and suffered a paralytic stroke and his right-side hemiplegia stabilised with nipotony. However, his speech was impaired and he could not speak properly. The petitioner says that he is totally bed-ridden and he is not able to get up or attend to his routine movement. Everything has to be done by his wife and neighbours.

In the aforesaid circumstances, he filed an application bearing no. 250/C-54 of 1993 before the Commissioner for Workmen''s Compensation at Bombay. It is the case of the petitioner that in the written statement, the respondents did not deny that the injury was caused to the petitioner by accident while on duty.

As the petitioner was totally disabled from attending the court physically due to his condition, an application was made before the Commissioner for Workmen''s Compensation. In the said application, it was pointed out that the applicant Jeevanbhai Tandel is suffering from right-side paralysis. His right hand and right leg are not moving at all. He cannot walk and cannot write. He is also unable to talk and even if attempts to talk, it is not clear. However, the applicant is able to hear and understand. He requested the Commissioner that some commission be appointed to record his evidence. The application was stoutly opposed by the respondents and it was specifically contended that the Commissioner for Workmen''s Compensation under the Workmen''s Compensation Act, 1923 (hereinafter referred to as the "Act") has no jurisdiction to issue a commission for the examination of a witness.

On this application, the Commissioner held that the decisions reported in Rajiyabi Cosman Sayi and Another Vs. Mackinon Machinazie and Co. Pvt. Ltd., do not show that the Commissioner under the Workmen''s Compensation Act, 1923 (hereinafter referred to as the "Act") has power to appoint a commission to take evidence of a witness. The power u/s 23 invested with the Commissioner is limited for taking evidence on oath and enforcing the attendance of the witness and compelling the production of the documents and material objects. Accordingly, by his judgment and order dated 16th October, 1995, the application was rejected by the Commissioner for Workmen''s Compensation.

The legality and correctness of the aforesaid decision of the Commissioner is challenged in this petition. We have heard Mr. Ganguli, learned counsel appearing for the petitioner, and Mr. Joshi, learned counsel appearing for respondent no. 2, at some length. Mr. Ganguli submitted that the order of the learned Commissioner is patently unjust and unfair and also illegal. Taking us through the various provisions of the Act, Mr. Ganguli submitted that the Act or the Rules do not prohibit the Commissioner from appointment of a commission for recording the evidence of the applicant. Mr. Ganguli also relied upon the decision of a Division Bench of this court in Rajiyabi Cosman Sayi and Another Vs. Mackinon Machinazie and Co. Pvt. Ltd., in support of his submission that the Commissioner under the Act is a Court. Mr. Ganguli also relied upon the decision of a single Judge of the Kerala High Court in K.V. Aboo Vs. Commissioner for Workmen''s Compensation and Another, in support of his contention that all procedure would be permissible if not specifically prohibited by law. Mr. Joshi, on the other hand, contended that taking into consideration the various provisions of the Act as well as the Rules, it is clear that excepting those provisions specifically made applicable to the proceedings before the Commissioner, all other provisions of the CPC must be held to be impliedly prohibited. Mr. Joshi, in support of his contentions, relied upon the decision of a Division Bench of the Patna High Court in G. Powell and A. Ghany Co. and Another Vs. Panchu Makadam and Others, and a Division Bench ruling of the High Court at Sind in Brigstock Edulji & Co. v. Ganguli AIR 1930 Sind 221.

It needs to be emphasised that the very object of the Act is to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. The detailed provisions of various sections clearly point out that the object is obviously to give compensation and that too as quickly as possible to the affected workman. Sub-Section (2) of section 19 provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under the Act. Thus it is clear that the jurisdiction of the Civil Court is totally barred in respect of questions which is required to be settled, decided or dealt with by the Commissioner. Section 23 of the Act is as under :-

"Power and procedure of Commissioner. The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, (and the Commissioner shall be deemed to be a Civil Court, for all the purposes of section 195, and of Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898)".

Section 25 of the Act provides as under :-

"Method of recording evidence :- The Commissioner shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds and such memorandum shall be written and signed by the Commissioner with his own hand and shall form a part of the record :

Provided that, if the Commissioner is prevented from making such memorandum he shall record the reasons of his inability to do so and shall cause such memorandum to be made in writing from his dictation and shall sign the same and such memorandum shall form part of the code :

Provided further that, the evidence of the any medical witness shall be taken down, as nearly as may be word for word".

Rules are also framed under the Act and, in our opinion, rule 23 thereof is extremely relevant which is as under :-

"Examination of applicant :- (1) On receiving an application of the nature referred to in section 22, the Commissioner may examine the applicant on oath, or may sent the application to any Officer authorised by the State Government in this behalf and direct such Officer to examine the applicant and his witnesses and, forward the record thereof to the Commissioner.

(2) The substance of any examination made under sub-rule (1) shall be recorded in the manner provided for the recording of evidence section 25".

Rule 41 on which heavy reliance is placed by Mr. Joshi is as under :-

"Certain provisions of Code of Civil Procedure, 1908 to apply :- Save as otherwise expressly provided in the Act or these rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely those contained in Order V, rules 9 to 13 and 15 to 30; Order IX, Order XIII, rules 2 to 100; Order XVI, rules 3 to 21; Order XVII, and Order XXIII, rules 1 and 2 shall apply to proceedings before Commissioner, in so far as they may be applicable thereto.

Provided that :-

(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him.

(b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interests of the parties will not hereby be prejudiced."

No doubt, the provisions of section 25 indicate that the Commissioner himself has to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds. Rule 41, undoubtedly, refers to certain provisions of the CPC which shall apply to proceedings before the Commissioner. However, it requires to be noticed that the rule expressly states that save as otherwise expressly provided in the Act or the rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, rules 9 to 13 and 15 to 30; Order IX, Order XIII, rules 2 to 100; Order XVI, rules 3 to 21; Order XVII and Order XXIII, rules 1 to 2 shall apply to proceedings before Commissioner insofar as they may be applicable thereto. The proviso to the rule is extremely relevant. Under proviso (a), it is stated that for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alteration not affecting the substance as may be necessary or proper to adapt them to the matter before him. Proviso (b) states that the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interest of the parties will not thereby be prejudiced. As stated earlier, the provisions of rule 23 clearly empower the Commissioner to send the application to any Officer authorised by the State Government in this behalf and direct such Officer to examine the applicant and his witnesses and forward the record thereof to the Commissioner. In our opinion, the very scheme of the Act is to give sufficient powers to the Commissioner with a view to enabling him to properly adjudicate the matter. We are not at all impressed by the submissions of Mr. Joshi that any limitations on his power or the exclusion of all other provisions of the CPC excepting those mentioned in rule 41 has to be read in the said rule.

In G. Powell and A. Ghany Co. and Another Vs. Panchu Makadam and Others, , the Court was concerned with interpretation of several sections of the Act and the Court held that the Act enjoins that the Commissioner alone can deal with applications made under the Act. There is nothing in the Act which entitles him to delegate his powers and to order one of his subordinates to do the work for him or to make reports so as to make his work lighter and easier. Sections 23, 24, and 25 make it clear that the Commissioner must hear evidence adduced by the parties on oath and decide the dispute whatever it may be upon such evidence. In the facts of the case, it requires to be noticed that as there had been no real hearing of the application for compensation by the Commissioner, the Commissioner directed one B.D. Pande to make a local investigation and to report. The finding of the Mines Inspector was also called for. Pande appears to have conducted some kind of investigation and submitted his report. There were also on record statements of two witnesses. The court observed that the statement of the Manager must have been taken before the proceedings were commenced. The Court further observed that there is nothing on record to show that when the statement of the applicant was taken, but it does not appear to be a deposition and neither of the statements was made on oath. The Commissioner in the aforesaid case decided the matter upon this material and it is on the basis of these facts that the Division Bench has observed as follows :-

"These sections make it clear that the Commissioner must hear evidence adduced by the parties and decide the dispute whatever it may be upon such evidence. In the present case the Commissioner heard no evidence at all. As far as one can see from the record, he appears to have entirely overlooked the mandatory provisions of S. 25. There is nothing on the record to suggest that evidence on oath was taken by any one, much less the Commissioner and that being so, there were no material of any kind before the Commissioner upon which he could legally decide the case. The Act enjoins that he and he alone can decide these matters, and there is nothing in the Act which entitles him to delegate his powers and to order one of his subordinates to do the work for him or to make reports so as to make his work lighter and easier."

Undoubtedly, the decision of the Division Bench of the Sind High Court in Brigstock Edulji & Co. v. Gaguji AIR 1930 Sind 221 supports the submission of Mr. Joshi so far as the appointment of the commission to record evidence under the provisions of the Act is concerned. In the aforesaid decision, it is stated that it is clear that the Commissioner appointed under the Act has no power except those which are given to him by the Act itself or the Rules thereunder. It is observed in the aforesaid decision that there is however no mention in the Rules or in any other part of the Act that the Commissioner is empowered to issue a commission for the examination of witnesses under Order 26 of the Code of Civil Procedure. The learned Judges also observed that the issue of a commission to examine witnesses would tend to cause delay which appears to be not in accordance with the spirit of the Act. Ultimately, it is held :-

"On the whole, however, we think that as the power to issue a commission is not mentioned in the Act itself under any of the rules thereunder, a Commissioner appointed under the Workmens'' Compensation Act has no power to issue a commission for the examination of witnesses".

With respect, we find it difficult to accept the ratio of this decision. Undoubtedly, quick relief to the workman concerned is one of the objects of the Act, but that cannot be stretched so far as to defeat the very object of the Act. If the workman injured is physically unable to come to the court of the Commissioner, we fail to appreciate why the Commissioner cannot appoint an officer as envisaged under rule 23 of the Rules or even appoint a commission for examination of the applicant. We are of the clear view that unless prohibited by the specific provisions of the law, the Commissioner who is a court shall have all the ancillary powers which are necessary for discharging his functions under the Act. Adjudicating upon the claim of the workman is the primary function under the Act and we cannot possibly conceive a situation that the Commissioner appointed to give a speedy relief to the workman is helpless only because the workman, due to physical disability, cannot physically remain present before him. We do not find any warrant in any of the provisions of the Act or the Rules thereunder, to support this proposition.

A Division Bench of this Court in Rajiyabi Cosman Sayi and Another Vs. Mackinon Machinazie and Co. Pvt. Ltd., after referring to several sections of the Act decided that the Commissioner adjudicating disputes between parties under the Act is a court and his decision is a judgment and not an award and an order passed in appeal by the High Court u/s 30 of the Act is a judgment within the meaning of Clause 15 of the Letters Patent.

The learned single Judge of the Kerala High Court in K.V. Aboo Vs. Commissioner for Workmen''s Compensation and Another, has held as under :-

"It is no doubt true that specifically the provisions of Order 1, Rule 10 as such has not been made applicable to the proceedings under the Workmen''s Compensation Act. But there is no prohibition in the Act and the Rules framed thereunder that a person cannot be brought on record subsequent to the filing of the application. As pointed out by the Bombay High Court in Santeline Fernandes (through Margarida Gomes) Vs. Mackinnon Mackenzie and Co., in law all procedure is permissible as is not specifically prohibited-see in the connection Abdul Gani Sumar v. Reception Committee, Indian National Congress (1935) 38 Bom. L.R. 380 and Narsingh Das v. Mangal Dubey ILR1882 All. 163."

The Learned Judge also held that it might be noted that the principle of inherent power to remedy injustice applies to quasi-judicial authorities also.

Taking into consideration the various provisions of the Act and the Rules and the aforesaid decisions, we are of the clear view that the Commissioner under the Act has all the powers which are necessary for effective adjudication of the claims of the workman excepting those which are excluded or prohibited expressly or impliedly by any law. We are also of the clear view that no provision of the law or the rules under the Workmen''s Compensation Act prohibits appointment of commission for recording of evidence.

Accordingly, the decision of the Commissioner rendered by him on 16th October 1995 rejecting the application of the petitioner for appointment of commission to record evidence is illegal and is hereby quashed and set aside and it is directed that the Commissioner shall appoint a commission to record the evidence of the petitioner-workman. We also direct that taking into consideration that the petitioner has been fighting his claim from the year 1990, the Commissioner shall take steps with a view to disposing of the entire matter as early as possible. The rule is made absolute in the aforesaid terms. Respondents No. 1 and 2 shall pay the costs of these proceedings to the petitioner which are quantified at Rs. 1500/-.

Certified copy expedited.