Preeti Lal vs The Commissioner

R.L. Anand, J.—This is a civil revision under Article 227 of the Constitution of India and has been directed against the order dated 11.10.1999 passed by Shri K.S. Bedi, HLS, Commissioner under the Workmen''s Compensation Act, 1923, who allowed the application of the workman and restored the proceedings.

The brief facts of the case are that earlier the workman filed a claim application before the learned Commissioner against Preeti Lal, the present petitioner. During the pendency of that petition Roshan Deen respondent filed a compromise letter stating that since the parties have entered into an agreement, therefore, he does not want to prosecute his claim petition and wants to withdraw the same. This application was moved by Roshan Deen on 12.3.1999. The Court was on leave on that day and the case was adjourned to 16.3.1999. Then the case was adjourned to 19.3.1999. Even on that day Roshan Deen did not appear. On the contrary, the learned counsel for Preeti Lal appeared and he stated before the Court that in view of the compromise effected between the parties Roshan Deen would not appear. In this view of the matter, the main petition, which was filed by Roshan Deep, was dismissed as settled/withdrawn on 19.3.1999. Subsequently, Roshan Deen filed an application stating that his counsel Rajpal Pawar obtained his thumb impression on certain documents and filed the same before the Court and the contents of the documents were not read over and explained to him. After attending the Court he was given a sum of Rs. 9,500/- by his counsel and told that the case has been decided by the Court. According to the averments of Roshan Deen, he never instructed his counsel to enter into any compromise on his behalf. He further alleged that the petitioner has played a fraud upon him in collusion with his counsel and obtained his thumb impression saying that the thumb impression is for his presence in the Court, date of his case, the court told him that his case has been finally decided notice of the application for recalling of the order dated 19.3.1999 was given to the opposite party who filed the reply and denied the allegations. According to the Preeti Lal, a compromise has been effected between the parties and no fraud has been played and the main petition has been rightly dismissed on 19,3.1999.

The learned Commissioner vide impugned order dated 11.10.1999 allowed the application of Roshan Deen and restored the main proceedings for the following reasons :-

"After perusing the order 19.3.99, I am of the view that on the oral statement of the respondent which was not recorded in good faith and the compromise dated 12.3.1999 filed by the counsel for the applicant the claim case was dismissed as settled/withdrawn on 19.3.99, the compromise was neither read over to him nor his statement recorded. It shall be worthwhile here to refer to Sec-lion 17 of the workmen''s Compensation Act, 1923 (shortly the Act) as under :-

17, Contracting out

"Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of and in the course or the employment shall be null and void in so far as it purports to remove or reduce the liability or any person to pay compensation under this Act."

In view of Section 17 of the Act read with Section 151 of the CPC, I set aside order dated 19.3.99 in the interest of justice so that the claim case could be decided on merits. Since the respondent has de- nied that any payment has been made to the applicant on 12.3.99 no suffering shall be caused to . him by this order. The case to come up for evidence of the respondent on 19.11.99. No costs. The parties be informed accordingly."

Aggrieved by the said order, the present revision under Article 227 of the Constitution of India.

I have heard the learned counsel for the parties and with their assistance have gone through the record of the case.

The learned counsel for the petitioner submits that once the main claim petition has been dismissed by the competent court of jurisdiction on 19.3.1999, it cannot be revived, especially in a review application. The remedy of the aggrieved party lies somewhere else. In support of his contention the learned counsel for the petitioner relies upon ajudgment of Hon''ble Division Bench of this Court in Gurnam v. The Commissioner Under Workmen''s Compensation, 1999(1) RSJ 533, in which it was laid down that after the pronouncement of the judgment, the Workmen''s Compensation Commissioner cannot modify or amend the order. He can correct the clerical and arithmetical mistakes arising out of the accidental slip of omission. By taking the support of this judgment Mr. Sharma vehemently submitted that the impugned order is patently illegal and is liable to be quashed under Article 227 of the Constitution of India.

On the other hand, the learned counsel for respondent No. 2 relies upon United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, , which lays down that when an order is obtained by practising fraud the Court/Tribunal has power to recall such order. The learned counsel for the respondent No. 2 also invited my attention to the document Annexure P1 and submitted that on the basis of document Annexure P1 the impugned order was passed on 19.3.1999 but the so-called compromise was never attached with the application. It was also submitted by the learned counsel for the respondent No. 2 that the statement of the workman was not recorded in pursuance of the application dated 12.3.1999 which was submitted before the Commissioner under the Workmen''s Compensation Act.

I have considered the rival contentions of the parties and in my opinion this petition must succeed. A reference to Annexure PI would show that a joint application was moved by Roshan Deen and the present petitioner Preeti Lal. It was in the shape of a compromise in which it was submitted by the parties that since they have compromised with each other, therefore, Roshan Deen applicant does not want to pursue his case and withdraws the same. Of course, it was written in the said application Annexure P1 that the said compromise be also taken on record. In view of the clear intention on the part of Roshan Deen that he did not want pursue his case and withdraws the same, no other order was required. The application for recalling of order dated 16.4.1999 was moved after a period of about 27 days. It is not established on the record that Roshan Deen ever gave a notice to his counsel that he never gave instructions to him for the purpose of entering into a compromise. Even in the review application Roshan Deen does not say that the thumb impression on the original of Annexure Pl is not his. In these cir-cumstances, I am of the opinion that no fraud has been practised upon the Court. Rather, the intention of Roshan Deen became bad subsequently and he wanted to withdraw from his compromise which is not permissible.

In this view of the matter, I allow this revision and set aside the order dated 11.10.1999 with the observation that let Roshan Deen may adopt other legal remedy under the law against the order dated 19.3.1999. there shall be no order as to costs.

Revision allowed.