Bashir Khan v. Ranger, Social Vaniki — 1994 DIGILAW 528 (RAJ)

Honble VERMA, J. - This reference to a larger Bench by a learned Single Jeudge of this court arises in the following way - Petitioner Bashir Khan was employed under respondents No. 1 & 2 as a workman at the relevant period on daily wage basis. While he was discharging his duties as a workman under the respondents a water tank at Forest Nursery, Gudha chandraji, belonging to the State got burst and the debris fell over his legs resulting in fractures of both the legs. Petitioner Bashir Khan submitted a claim petition before the Workmens Compensation Commissioner, Sawai Madhopur and claimed a compensation to the tune of Rs. 24,000/-. Notices of this claim petition were sent to respondents No.l and 2 but they did not care to put in appearance with the result that ex parte proceedings were taken and the evidence of the petitioner was recorded any by order dated 28.9.1987 the Workmens Compensation Commissioner awarded a sum of Rs. 66081.60p. against the aforesaid respondents. A penalty in a sum of Rs. 33008.50p. was also imposed upon the respondents. The respondents were directed to makeae payment with interest at the rate of 6% per annum. (2). It appears that on 5.12.1987 respondent No.2 submitted an application before the learned Workmens Compensation Commissioner for setting aside the award dated 28.9.1987 on the ground that notices of the claim were never served on this respondent. The learned Workmens Compensation Commissioner accepted the aforesaid application of respondent No.2 inspite of objection taken on behalf of the petitioner regarding maintainability of the application for setting aside the ex parte award and permitted respondents to oppose the claims after setting aside the ex parte award. (3). It appears that the claims of the petitioner was taken up for hearing and respondent No.2 filed a reply to the claim petition of the petitioner wherein averments made in the claim petition were denied. The grievance of the petitioner is that the case was fixed up for evidence of the petitioner at camp Gangapur City without informing him of the venue and the claim petition was dismissed on the ground of absence of the petitioner. The case of the petitioner he submitted an application before the learned Workmens Compensation Commissioner on 28.11.1988 for restoration of his claim petition. This application itself was dismissed on 9.6.1989, on the ground of absence of the petitioner. The case of the petitioner he submitted an application before the learned Workmens Compensation Commissioner on 28.11.1988 for restoration of his claim petition. This application itself was dismissed on 9.6.1989, on the ground of absence of the petitioner. The case of the petitioner is that notices of the date of hearing were never served on him and it was on 14.8.1989 that the petitioner came to know that his application for restoration had been dismissed in default on 9.6.1989. Having been aggrieved by the dismissal of the application for restoration and dismissal of this claim petition, the petitioner filed S.B. Civil Revision No. 949/1989 before this court. (4). When the revision was taken up for hearing, a preliminary objection was taken up on behalf of the respondents No.l and 2 to the effect that a civil revision under Section 115 of the C.P.C. was not maintainable. (5). Learned counsel for the petitioner countered the preliminary objection by submitting that Workmens Compensation Commissioner was a civil court for purpose of Sec. 115 of the C.P.C. In this connection he relied upon Mangilal Vs. Chunnilal (1) rendered by a learned Single Judge of this court. (6). Learned Single Judge hearing the revision petition was of the view that the preliminary objection raised by counsel for non- petitioners was likely to affect many cases and hence he thought it proper to refer the following question to be decided by a larger Bench : — "Whether the Workmens Compensation Commissioner is a Court subordinate to the High Court and as such revision lies against the order passed by the said Commissioner?" Honble the Chief Justice directed the matter to be listed before regular Division Bench hearing similar cases. This is how, this revision petition has come before us. (7). We have heard the learned counsel for the petitioner at some length. We did not have the advantage of hearing learned counsel for the respondents No.l and 2 because he did not put in appearance when the case was called for hearing and hence the matter was heard in his absence. (8). A learned Single Judge of this Court in Mangilal Vs. Chunnilal (supra) took a view that section 115 of the C.P.C. empowered the High Court to call for the record of any case which had been decided by any court subordinate to such High Court. (8). A learned Single Judge of this Court in Mangilal Vs. Chunnilal (supra) took a view that section 115 of the C.P.C. empowered the High Court to call for the record of any case which had been decided by any court subordinate to such High Court. He was further of the view that Compensation Commissioner was a Court subordinate to High Court so far as Section 115 C.P.C. is concerned. In taking this view he was mainly influenced by the fact that an appeal lay from the decision of the Workmens Compensation Commissioner to the High Court. The ratio decidendi may profitably be reproduced in the words of the learned Judge himself - "For determining the question whether a Court is subordinate to the High Court, the test which, in my opinion, should be applied is that if an appeal from the decision of that Court can be preferred to the High Court, then the Court is subordinate to the High Court. As stated above, Section 30 of the Act provides for appeals from the decisions of the Commissioner under the Act to the High Court, and, therefore, the Commissioner is a Court subordinate to the High Court." In coming to this conclusion, he relied upon certain decisions of Bombay, Lahore, Assam and Madhya Pradesh High Courts. (9). Before the learned Single Judge hearing the present revision petition, learned counsel for the respondents No.l and 2 had placed reliance upon a Full Bench decision of Madhya Pradesh High Court in Yeshwant Rao V. Sampat (2) in support of the proposition that Workmens Compensation Commissioner was not a Court subordinate to the High Court but was a Tribunal not amenable to revisional jurisdiction of the High Court. (10). We have considered the matter and have gone through the relevant rulings. The revisional power of the High Court under Sec. 115 of the C.P.C. is available against "any Court subordinate" to it. This power under Section 115 of the C.P.C. is not available against a subordinate Tribunal which, incidentally may be amenable to writ jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India. The revisional power of the High Court under Sec. 115 of the C.P.C. is available against "any Court subordinate" to it. This power under Section 115 of the C.P.C. is not available against a subordinate Tribunal which, incidentally may be amenable to writ jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India. The distinction between a Court in the strict sense and a Tribunal was pointed out by the Supreme Court in A.C. Companies v. P.N. Sharma (3) in the following words : "The expression Court in the context denotes a tribunal constituted by the State as a part of the ordinary hierarchy of Courts which are invested with the States inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial power. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary Courts which have been constituted under its relevant provisions. The Constitution recognised a hierarchy of Courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These Courts can be described as ordinary courts of Civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these Courts exercise are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions. Their Lordships further observed-Tribunals.....occupy a special position of their own under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense, they share with the Courts one common characteristic; both the courts and the Tribunals are constituted by the State and are invested with Judicial as distinguished from purely administrative or executive functions. vide Durga Shankar Mehta v. Raghuraj (4). They are both adjudicating bodies and they deal with an finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the Courts is regularly prescribed and in discharging their functions and exercising their powers, the Courts have to conform to that procedure. vide Durga Shankar Mehta v. Raghuraj (4). They are both adjudicating bodies and they deal with an finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the Courts is regularly prescribed and in discharging their functions and exercising their powers, the Courts have to conform to that procedure. The procedure which the tribunals have to follow may not always be so strictly precribed, but the approach adopted by both the Courts and the tribunals is substantially the same, and there is no essential difference between the functions that they discharge. As in the case of Courts, so in the case of tribunals it is the States inherent judicial power which has been transferred and by virtue of the said power, it is the States judicial function which they discharge judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the State transfers its judicial functions and powers mainly to the Courts established by the Constitution, but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribunals by entrusting to them the task of adjudicating upon special matters and disputes between pavties. It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the Courts and features which are distinct and separate. The basic and the fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State." The aforesaid observations of the Apex Court recognise a clear cut distinction between the ordinary Courts constituted in a hierarchy to settle civil disputes and Tribunals established by the State for dealing with social matters. The distinction between a civil court and a tribunal is thus fine but real. The distinction between a civil court and a tribunal is thus fine but real. We may here examine the scheme of the Workmens Compensation Act, 1923, to ascertain if a Workmens Compensation Commissioner functioning under the provisions of the said Act is a Tribunal or is a civil court amenable to revisional jurisdiction of the High Court under Section 115 of the C.P.C. The preamble to the Act reads as follows : - " An Act to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. "Whereas it is expedient to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident; It is hereby enacted as follows :" A bare reading of preamble goes to show that the Act provides for special matters, namely, for payment by certain classes of employers to their workmen of compensation for injury by accident. Section 2(l)(b) of the Workmens Compensation Act, 1923, defines "commissioner" to mean a Commissioner for Workmens Compensation appointed under Section 20. The State Government is empowered under section 20 to appoint any person to be a Commissioner for Workmens Compensation by a notification for such area as may be specified in the notification. Section 19 (1) provides that "if any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner." Section 19(2) excludes the jurisdiction of the civil court to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act. Section 23 of the Act deals with powers of procedure of Commissioners. Section 23 of the Act deals with powers of procedure of Commissioners. It lays down-"The Commissioner shall have all the powers of the 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 Civil Court for all the purposes of Section 195, and of Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898)." A bare reading of this Section goes to show that the Commissioner appointed under this Act is not a civil court but by a deeming provision of the Section has been equated with the civil court for certain specific matters only and not for all purposes. It has not been recognised as a civil court for purposes of Section 115 of the Code of Civil Procedure. (11). We may here refer to the provisions of Section 3(5) of the Workmens Compensation Act, 1923, which are also germane. This sub-section reads as follows: — "Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act." A bare reading of this provision goes to show that institution of a civil suit excludes the jurisdiction of the Compensation Commissioner and likewise institution of a claim to compensation in respect of an injury before the Commissioner exclues the jurisdiction of the civil court. The aforesaid provisions unmistakably go to show that the legislature did not deem it proper to equate a Compensation Commissioner with a Civil Court subordinate to the High Court and amenable to the revisional jurisdiction of the High Court under Section 115 of the C.P.C. (12). The aforesaid provisions unmistakably go to show that the legislature did not deem it proper to equate a Compensation Commissioner with a Civil Court subordinate to the High Court and amenable to the revisional jurisdiction of the High Court under Section 115 of the C.P.C. (12). In our opinion, the expression any Court subordinate to such High Court as used under Section 115 of the CPC is used in a narrow sense meaning only a civil Court in the normal hierarchy of Courts. This expression occurring under section 115 of the C.P.C. will not cover Tribunals which are established under Special Acts and exercise special jurisdiction in special matters." (13). As already stated, the learned Single Judge of this Court in Mangilal v. Chunnilal (supra) was greatly impressed by the fact that under Section 30 of the Act the High Court has power to hear appeals against the orders made by the Workmens Compensation Commissioner mentioned in the said Section. The learned Single Judge observed : — "What I am required to consider is whether Section 115 C.P.C. can be made applicable or not? As stated above under Section 30 of the Act the High Court has power to hear appeals against that orders specified therein. Sec. 115 C.P.C. empowers "the High Court to call for the record of any case which has been decided by any Court subordinate to such High Court, irrespective of the matters dealt with by it." In these circumstances, I have no hesitation in holding that on account of the exercise of the powers of a Civil Court and on account of its being subject to appeal on certain matters, the Commissioner under the Act should be a Court subordinate to a High Court so far as Sec. 115 C.P.C. is concerned. For determining the question whether a Court is subordinate to the High Court, the test which, in my opinion, should be applied as that if an appeal from the decision of that Court can be preferred to the High Court, then the Court is subordinate to the High Court." In our opinion, with respect to the learned Single Judge, the argument does not take into consideration the distinction between a Tribunal and a Civil Court, recognised by the Apex Court in A.C. Companies v. P.N. Sharma (Supra). To our mind, .the compensation Commissioner under Workmens Compensation Act is not a Court in the normal hierarchy of courts; it does not deal with general disputes but deals with only specified nature of cases; the general procedure governing civil Courts does not as such govern the Commissioner by only in specified matters, it is governed by C.P.C. Rest of the procedure can be settled by it. (14). Learned Single Judge in taking the aforesaid view relied upon certain decisions of other Courts including judgment of the Madhya Pradesh High Court in S.K. Amir v. Jardarbag (5). We find that Madhya Pradesh High Court in its Full Bench decision AIR 1979 MD 21 (supra) referred to above, overruled its earlier view and specifically held that inspite of the fact that an appeal lies to the High Court against certain orders of the Commissioner under Section 30 of the Act, having regard to Section 5 and 19 (2) of the Act it could not be said that the Commissioner is a Civil Court or a Court in technical sense. It specifically held that an order passed by Compensation Commissioner acting under the provisions of the Act is not revisable by the High Court under Section 115 of the C.P.C. (15). We may here briefly refer to the judgments mentioned in the order of the reference and upon which reliance has been placed by the learned counsel for the petitioner in support of the proposition that a Workmens Compensation Commissioner acting under the provisions of the Workmens Compensation Act, 1923, functions as a civil Court. Mohanlal Prabhuram v. Fine Knitting Mills Co., Ltd. (6) is a judgment of learned Single Judge of Bombay High Court taking the view that Commissioner under Workmens Compensation Act is a Court subordinate to the High Court and revision lies against his orders. The learned Single Judge examined the matter in light of the provisions of Sections 20, 22, 23 and 30 of the Workmens Compensation Act but was not alive to the distinction pointed out by the Apex Court between a Court and Tribunal appointed to exercise jurisdiction in special matters only. The learned Single Judge examined the matter in light of the provisions of Sections 20, 22, 23 and 30 of the Workmens Compensation Act but was not alive to the distinction pointed out by the Apex Court between a Court and Tribunal appointed to exercise jurisdiction in special matters only. It was further influenced by the question if a Commissioner appointed under the Workmens Compensation Act was a persona designata as decided by Full Bench of the Patna High Court in Mt.Dirji v. Smt. Goalin (7) wherein their Lordships of Patna High Court have made the following observations : — "there is no necessary antithesis between the expression persona designata and Court; in other words, even a persona designata may be a Court. Whether he is a Court or not depends upon his powers and the functions which he has to discharge." We may state that the distinction between a Court and a Tribunal having the trappings of a Court was not kept in view and, therefore, the said judgment cannot said to be laying down correct law particularly after the judgment of the Apex Court in A.C. Companiess case (Supra). (16). T.V. Subba Rao v. T. Koteswara Rao (8) pertained to an order passed by a Collector acting under Madras Hereditary Village Offices Act and the appellate authority acting under Rule 38 thereunder and it was held that they were civil courts and courts subordinate to High Court within the meaning of Section 115 of the C.P.C. In that case a view was expressed that in view of Article 227 of the Constitution which confers on the High Court a superior and superintending jurisdiction over all courts and tribunals within its jurisdiction, every court exercising jurisdiction within the territorial limits over which the High Court exercises jurisdiction is subordinate to the High Court. We may readily concede that under Article 227 of the Constitution of India the High Court has a superior and superintending jurisdiction over all courts and tribunals functioning within its jurisdiction but for that reason it cannot be said that a tribunal exercising jurisdiction in special matters under a special statute would be a civil court for purposes of Section 115 of the C.P.C. as well. Sailaja Kanta Mitra & Others v. State of West Bengal (9) pertained to the question if an arbitrator appointed under the provisions of Defence of India Act (1939) was a tribunal and it was held that Arbitrator was a Court of civil jurisdiction for purposes of Section 141 and 115 of the C.P.C. The Honble Member of the Division Bench deciding the said case were much impressed by the fact that a right of appeal had been created by the statute against the decision of the tribunal to the High Court and on basis of such a fact their Lordships expressed the view that the Arbitrator was a Court of original civil jurisdiction and a court subordinate to the High Court within Section 115 of the C.P.C. The distinction between a tribunal and an ordinary civil court in the established hierarchy of civil courts was not kept in view. Mrs. Noreen R. Srikantaiah V. L. Dasarath Ramaiah (10) pertained to exercise of powers under Section 24 of the C.P.C. in respect of Claims Tribunal constituted under Section 110 of the Motor Vehicles Act, 1939, and it was held that High Court in a State could transfer a case from one Tribunal to another under Section 24 of the Act. This judgment did not pertam to exercise of power under Sec. 115 of the C.P.C. Moreover, no reference was made to A.C. Companies Ltd.s case (Supra) rendered by the Apex Court. In view of the aforesaid legal position, we are of the view that revision petition under Section 115 of the C.P.C. was not maintainable against the order passed by learned Workmens Compensation Commissioner and the Commissioner was not a court subordinate to the High Court for purposes of Section 115 of the C.P.C. (17). We answer the reference accordingly and overrule Mangilal Vs. Chunnilal (supra). (18). Faced with the above situation, teamed counsel for the petitioner submitted that the revision petition filed by him may be treated as a writ petition under Article 2267227 of the Constitution of India and justice may be done to him. We answer the reference accordingly and overrule Mangilal Vs. Chunnilal (supra). (18). Faced with the above situation, teamed counsel for the petitioner submitted that the revision petition filed by him may be treated as a writ petition under Article 2267227 of the Constitution of India and justice may be done to him. In facts and circumstances of the case, we have treated this revision petition as a writ under Article -226/221 of the Constitution of India and have permitted learned counsel for the petitioner to argue the same on merits, as, in our opinion, no useful purpose will be served by sending this case back to the learned Single Judge at this stage. Admittedly, the petitioners claim for compensation was allowed by the Workmens Compensation Commissioner vide order dated 28,9.1987. This was done exparte since respondents No.l and 2 did not appear. On application filed by respondent No.2 on 24.11.1987 this ex-parte order was set aside and respondents No.l and 2 were permitted to file reply to the claim petition. It appears that the Workmens Compensation Commissioner took up the case at Camp Gangapur City and not at the regular seat and dismissed the claim petition vide order dated 19.5.1988. The case of the petitioner was that he was not aware that the proceedings would be taken up at Gangapur City. He, therefore, filed restoration application in respect of the claim petition on 28.11.1988 supported by an affidavit. In the said application, he categorically stated that he had no information that the case would be taken up at Gangapur City camp and it was for this reason that he could not appear before the workmens Compensation Commissioner on 19.5.1988. This application for restoration which was duly supported by an affidavit of the petitioner and had not been controverted, was itself dismissed by the learned Workmens Compensation Commissioner vide order dated 9.6.1989. It does not appear that petitioner was intimated about this date. According to the averment of the petitioner, he came to know about the dismissal of this application of restoration on 14.6.1989 and thereafter he filed this revision petition which has been treated as writ petition by us. (19). In our opinion, ends of justice require that petitioner should be heard on merits of his claim, which had been earlier accepted by the Workmens Compensation Commissioner ex-parte against the respondents. (19). In our opinion, ends of justice require that petitioner should be heard on merits of his claim, which had been earlier accepted by the Workmens Compensation Commissioner ex-parte against the respondents. Respondents have already filed their reply and they would get an adequate opportunity of contesting the claim of the petitioner. In oar opinion, it woold be unjust not to allow the petitioner to prosecute his claim on merits. (20). In view of what we have stated above, we accept the petition and set aside the orders of learned Workmens Compensation Commissioner dated 193.1988 and 9.6.1989, and remit the case to learned workmens Comspensation Commissioner, Sawai Madhopur, and the parties are directed to appear before the learned Workmens Comrxsnsation Commissioner on 23.8.1994. The petitioner shall be entitled to lead his evidence in support of the claim and there after the respondents shall be allowed an opportunity of leading evidence in rebuttat. The learned Workmens Compensation Commissioner shall, thereafter, decide the case on merits after hearing both sides. Since the matter is old one pertaining to an incident which is said to have taken place as back as 23.4.1986, we direct the learned Workmens Compensation Commissioner to dispose of the claim petition within a period of three months from the date he receives record of the case. The Registry shall immediately send the record to the learned Workmens Compensation Commissioner to enable him to comply with our direction. (21). In the circumstances of the case, parties are directed to bear their own costs.