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Judgment
Heard Mr. D. C. Mishra, counsel for the appellant.
Heard Mr. A. K. Das, counsel appearing for the private respondent.
The matter was heard at length on 07.01.2019 with the consent of the parties on following substantial question of law:-
(a) Whether application for payment of compensation under Workmen Compensation Act, 1923 filed before the authority below, was barred by res-judicata as the compensation arising out of the same incident with respect to the private respondent was already assessed by the competent authority at Gangtok?
(b) Whether application for payment of compensation under Workmen Compensation Act, 1923 suffers from material suppression by the respondent before the authority below in as much as the private respondent did not disclose the fact that the compensation arising out of the same incident with respect to the private respondent was already assessed by the competent authority at Gangtok?
Counsel for the appellant submits that an application was filed by the private respondent herein before the Deputy Labour Commissioner-cum-Commissioner for Workmen's Compensation, Jamshedpur Jharkhand in the month of April, 2010.
In the said application, the private respondent herein mentioned that the private respondent met with a serious accident on 12.02.2008 while on duty at District Singhik (Mangam), North Sikkim and accordingly, claimed compensation. The claim of compensation was inter alia based on a medical certificate issued by the Doctor at Jamshedpur indicating permanent disablement to the extent of 40%.
The counsel for the appellant further submits that the private respondent herein did not disclose before the Deputy Labour Commissioner-cum-Commissioner for Workmen's Compensation at Jamshedpur that he had filed an application for payment of compensation before the authority at Gangtok. Accordingly, it was also not disclosed by the private respondent herein that vide order dated 03.04.2010, the said authority at Gangtok had passed award in favour of the private respondent directing the appellant to deposit an amount of Rs. 78,273/- which was duly deposited by the appellant vide cheque dated 10.04.2010 and was received by the private respondent from the court of Commissioner for workmen's compensation, Sikkim. The said facts, having not been brought to the notice of the authority at Jamshedpur, amounted to material suppression on the part of the private respondent herein.
Counsel also submits that the claim of the private respondent was barred by the principle of res-judicata in as much as the claim of the private respondent in connection with the workmen's compensation was already assessed by the said authority at Gangtok. Counsel submits that in view of the aforesaid, the impugned order dated 31.08.2010 whereby the assessment of compensation has been made twice the amount of 78, 273/- plus interest and the appellant has been directed to pay the differential amount, is wholly illegal and not sustainable in the eyes of law.
Counsel for the appellant submits that as per Section 6 of the Employee's Compensation Act, 1923, if there is any change of condition of the employee, then an application for review lies before the same authority and accordingly, the authority at Jamshedpur had no jurisdiction to entertain a separate petition and pass the impugned order.
Counsel for the respondents, on the other hand, submits that the private respondent herein had filed an application before the authority at Gangtok as the accident had taken place at Gangtok and the certificate of "Person with Disability" was issued on 25.08.2008 by the authority indicating 20% disability. Subsequently, the status of the private respondent deteriorated further and the private respondent sustained disability to the extent of 40 % which was permanent in nature and appropriate certificate to this effect was issued by the competent authority vide certificate dated 22.04.2010. He submits that the condition of a patient may deteriorate and may lead to further disability and accordingly, an application was rightly filed before the authority at Jamshedpur. The counsel has referred to Section 21(1-A) of the Employees Compensation Act , 1923 to submit that if a Commissioner, other than the Commissioner with whom any money has been deposited under Section 8, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or money remaining with the latter and on the receipt of such a request, he shall comply with the same. Accordingly, he submits that the authority at Jamshedpur had the jurisdiction to entertain application which was filed by the private respondent.
Before dealing with the merits of the case, it would be useful to quote the provisions of the aforesaid Act, of 1923 which are relevant for the purposes of this case:-
"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 employee accompanied by the certificate of a qualified medical practitioner that there has been a change in the condition of the employee or, subject to rules made under this Act, on application made without such certificate.
(2) Any half-monthly payment may, 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 employee is entitled less any amount which he has already received by way of half-monthly payments."
"21. Venue of proceedings and transfer.-
1......
(1-A) If a Commissioner, other than the Commissioner with whom any money has been deposited under section 8, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or money remaining with the latter and on receipt of such a request, he shall comply with the same.
(2) If a Commissioner is satisfied that any matter arising out of any proceedings pending before him can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may, subject to rules made under this Act, order such matter to be transferred to such other Commissioner either for report or for disposal, and, if he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hands or invested by him for the benefit of any party to the proceedings :
provided that the Commissioner shall not, where any party to the proceedings has appeared before him, make any order of transfer relating to the distribution among dependants of a lump sum without giving such party an opportunity of being heard."
After hearing the counsel for the parties and after the considering the material on record, this Court finds that admittedly, an application for grant of compensation was filed by the workman before the Commissioner for Workmen's Compensation, Sikkim at Gangtok whereby, a Miscellaneous Case No. 8 of 2010 was initiated and the amount of compensation was assessed at Rs. 78,273/- on account of injury suffered on 12.02.2008 arising out of accident. Pursuant to such order, the appellant was directed to deposit the amount before the said authority. Admittedly, the amount assessed by the Commissioner for Workmen's Compensation, Sikkim at Gangtok was duly deposited by the appellant.
This Court further finds that the final order was issued in the said Miscellaneous Case No. 8 of 2010 by the Commissioner for Workmen's Compensation, Sikkim at Gangtok on 03.04.2010. After the issuance of the final order and deposit of the amount by the appellant , the private respondent was issued another medical certificate dated 22.04.2010 from Jamshedpur indicating permanent disablement to the extent of 40% on the basis of which fresh case was filed by the private respondent before the respondent authority at Jamshedpur.
This Court finds that under the provisions of Section 6 of the Employee's Compensation Act, 1923, an application for review could have been filed by the private respondent before the same authority at Gangtok for the purposes of review of compensation on account of further deterioration in his medical condition resulting in further permanent disablement. But, in the instant case, the private respondent, instead of filing a review, before the said authority at Gandtok , filed a fresh application before the respondent authority at Jamshedpur , that too, by suppressing the fact that he had moved the authority at Gangtok for the purposes of his claim arising out of the accident and the amount for compensation has already been assessed by the authority at Gangtok.
This Court finds that in view of the specific provision entitling the private respondent to file a review before the same authority, any fresh application could not have been entertained by the authority at Jamshedpur and accordingly the impugned order could not have been passed.
This Court is of the considered view that the private respondent herein ought to have filed an application for review before the authority at Gangtok on account of any further deterioration of his medical condition as claimed by him, but fresh application for grant of compensation could not have been filed before the authority at Jamshedpur .
The contention of the private respondent that the application could be entertained by the authority at Jamshedpur in view of the Section 21 (1-A) of the aforesaid Act of 1923 is hereby rejected as the said provision of Section 21 (1-A) comes into play when a transfer of the pending proceeding is required to be done as per the mandate of the said provision and any matter arising out of the proceedings can also be transferred as per the provisions of section 21(2) of the said Act of 1923. In the instant case the compensation was already assessed by the authority at Gangtok and a fresh application was filed at Jamshedpur. The authority at Jamshedpur had not taken up the matter pursuant to any transfer under the provision of section 21 of the said Act of 1923. This Court is of the considered view that that the said provision, as relied upon by the counsel for the private respondent ,has no applicability to the facts and circumstances of this case. In view of the aforesaid circumstances, this Court finds that the impugned proceedings and order dated 31.08.2010 passed in W.C.A. Case No. 6 of 2010, as communicated vide Memo No. 2556 dated 01.09.2010, is not sustainable in the eyes of law which is accordingly set-aside.
However, this order will not be an impediment for the private respondent herein to file an application for review under Section 6 of the Employee's Compensation Act, 1923 before the authority at Gangtok on account of any claim for further disability arising out of the aforesaid accident, if it is otherwise permissible in law.
This Miscellaneous Appeal is hereby allowed.