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2001 DIGILAW 371 (HP)

ROSHAN LAL v. WORKMENS COMPENSATION COMMISSIONER

2001-12-07

C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, C J. (Oral) :- Admitted. Mr. M.L. Chauhan, learned Deputy Advocate General appears and waives- service of notice of admission on behalf of respondent No. 1 and Mr. D. Dadhwal, learned counsel appears on behalf of respondent No.2 and waives service of notice of admission. In the facts and circumstances of the case, the matter is taken up for final hearing today. 2. The petitioner being aggrieved by the order passed by the Commissioner under the Workmens Compensation Act, Sadar Sub Division, Mandi (H.P.) on 30th March, 2001 in the matter titled Roshan Lai son of Shri Zalam Ram v. M/s. Basandhrai Bottles Pvt. Ltd. through its Managing Director/Proprietor has approached this Court by invoking Article 227 of the Constitution. 3. The case of the petitioner before this Court is that he is a permanent resident of District Mandi. He was employed by respondent No.2 M/s. Basandhrai Bottlers Pvt. Ltd. through its Managing Director/Proprietor in the Bottling Plant at Ner Chowk. According to him, he received injuries during the course of employment with respondent No.2. He, therefore filed a claim petition under Section 3 of the Workmens Compensation Act, 1923 (hereinafter referred to as the Act). The claim petition is pending adjudication with the Commissioner Workmens Compensation, respondent No.l herein. 4. According to the petitioner, he received injuries on hand on 10th April, 1996. He was treated by Post Graduate Institute of Medical Education & Research at Chandigarh. The disability was assessed to the extent of 45% in relation to the upper limb and 23% in relation to whole body. Disability certificate was issued by the authorities on 18th November, 1996, which was produced on record. 5. It was the case of the petitioner that thereafter he was treated by Zonal Hospital, Mandi. The petitioner was examined by the Medical Board at Zonal Hospital, Mandi on 25th March, 2000 and disability was assessed as 45%. It was permanent disability. The petitioner wanted to produce the said certificate on record. For the said purpose, an application was made by the petitioner on 5th April, 2000 under Order 18, Rule 17 of the Code of Civil Procedure, 1908 and a prayer was made that he might be allowed to produce the certificate of disability in evidence in the interest of justice. The petitioner wanted to produce the said certificate on record. For the said purpose, an application was made by the petitioner on 5th April, 2000 under Order 18, Rule 17 of the Code of Civil Procedure, 1908 and a prayer was made that he might be allowed to produce the certificate of disability in evidence in the interest of justice. The application was objected by respondent No.2 and the learned Commissioner, after hearing the parties, rejected the application by order dated 30th March, 2001 which is impugned in the present petition. 6. I have heard the learned counsel for the parties. It was contended by Mr. Pathak that the Commissioner has committed a error apparent on the face of the record as also failed to exercise jurisdiction vested in him by not granting the application. It was urged that the certificate was relevant as well as material for the purpose of deciding the real question in controversy and the prayer of j the petitioner to produce the same on record ought not to have been rejected by j the first respondent. It was also submitted that the reasons recorded and grounds weighed with the Commissioner could not be said to be germane and relevant and the order deserves to be quashed. According to the learned counsel for the petitioner, the Commissioner under the workmens Compensation can be said to be "Tribunal" within the meaning of Article 227 of the Constitution and as he has not decided the matter within the four corners of law, it is the power and duty of this Court to correct him. He, therefore, submitted tat the petition deserves to be allowed by quashing and setting aside the order passed by the Commissioner and by directing him to exhibit the certificate issued by Zonal Hospital, Mandi. 7. So far as the learned Deputy Advocate General is concerned, he submitted that he is appearing for respondent No.l authority and will abide by the order of the Court. 8. So far as respondent No.2 is concerned, the learned counsel supported the order passed by the Commissioner. He submitted that the document cannot be said to have been proved in accordance with law. The Commissioner, therefore, was right in observing that at the most the document can be marked but cannot be exhibited. Nobody was examined from Zonal Hospital. 8. So far as respondent No.2 is concerned, the learned counsel supported the order passed by the Commissioner. He submitted that the document cannot be said to have been proved in accordance with law. The Commissioner, therefore, was right in observing that at the most the document can be marked but cannot be exhibited. Nobody was examined from Zonal Hospital. Moreover, the document was produced at a belated stage and, hence, the Commissioner has not committed any illegality in refusing the application. In any case, it was in the discretion of the Commissioner to allow or not to allow the application for placing on record a certificate. When the discretion was exercised, it cannot be interfered with under Article 227 of the constitution of India. He, therefore, submitted that repetition deserves to be dismissed. 9. Having heard the learned counsel for the parties, in my opinion, the order deserves to be quashed and set aside. So far as the reasons recorded by the Commissioner are concerned in my opinion, they cannot be said to be legal, valid or proper. The commissioner has observed that no prejudice will be caused to the petitioner if the second certificate will not be allowed to be produced on record. To me, the submission made by the learned counsel for the petitioner deserves acceptance that if the certificate will not be taken on record, it might cause serious prejudice to the petitioner inasmuch as so far as the first certificate is concerned, it was not final. It was also brought to my notice that the first certificate was issued on 18th November, 1996 by the Chandigarh authorities, and in the first certificate a note is appended, which reads as under: "Note : Patient operated on 2.8.96. (Temporary disability). 1. This condition is Non progressive likely to improve/not likely to improve. 2. Reassessment is: (a) recommended after a period of six months." 10. Again, the learned Commissioner is not right in observing that only some of the provisions of the Code of Civil Procedure apply to the petitioner and applications under the Act and not other provisions. (Temporary disability). 1. This condition is Non progressive likely to improve/not likely to improve. 2. Reassessment is: (a) recommended after a period of six months." 10. Again, the learned Commissioner is not right in observing that only some of the provisions of the Code of Civil Procedure apply to the petitioner and applications under the Act and not other provisions. The said fact, in my considered opinion, would not go against the petitioner-workman inasmuch as with regard to other provisions strict rules of procedure would not apply and the commissioner will have to take an appropriate decision on the basis of justice, equity and good conscience and in the larger interest of justice. The Commissioner is also not correct in observing that the certificate could not be said to have been properly produced. In the application itself, it. was mentioned by the applicant that the "applicant produces himself before the Medical Board in the Zonal Hospital, Mandi and the said Board has issued permanent disability certificate to the extent of 45% on 25.3.2000". It, therefore, came from the proper custody inasmuch as the applicant had produced himself before the authority and a certificate was issued in his favour. 11. It is no doubt true that respondent No.2 may have certain objections so far as the entries made in the certificate are concerned. It is open to the said respondent to take all objections available at law, but so far as the production of certificate is concerned, it could not have been rejected and no order could have been passed by the Commissioner under the Workmens Compensation that it could not be exhibited. 12. For the foregoing reasons, the petition deserves to be allowed and is accordingly allowed. The order passed by the first respondent is quashed. The certificate, which was produced by the petitioner will be taken on record and will be exhibited. No order as to costs. CMP No. 91 of 2001. 13. In view of the disposal of the main petition, the present application also stands disposed of and ad-interim order passed on 31st July, 2001 stands vacated.