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2002 DIGILAW 361 (MAD)

P. VELU v. A. ANTONY ANIMAL

2002-04-19

E.PADMANABHAN

body2002
Judgment : E. PADMANABHAN, J. ( 1 ) THE present revision has been preferred uncler Article 227 of the Constitution of India seeking for transfer of W. C. No. 22 of 1998 on the file of the Deputy Commissioner of Labour, madurai, the respondent No. 2 herein to the file of the Deputy Commissioner of labour, Tirunelveli. ( 2 ) ACCORDING to the petitioner the approach of the respondent No. 2 is unfair, unlawful, unwarranted and contrary to the provisions of the Workmens Compensation Act and the Rules framed thereunder. It is contended that the respondent No. 2 has no jurisdiction to entertain the application filed by the respondent No. 1 under section 22 of the Workmens Compensation Act since the accident in question took place at Tirunelveli, outside the jurisdiction of respondent No. 2 and respondent no. 1 is ordinarily residing at Thuraiyur, tirunelveli. Therefore the Deputy Commissioner of Labour, Tirunelveli alone has the jurisdiction to try the dispute. ( 3 ) IT is contended that the respondent no. 1 had admitted that she was a resident of Thuraiyur in Tirunelveli District during cross-examination and not residing at madurai and, therefore, the respondent No. 2 has no jurisdiction. It is further alleged that the respondent No. 2 has personal bias against the revision petitioner as the petitioner had declined to compromise the matter, as suggested by the respondent no. 2. The respondent No. 2 has acted in excess of the jurisdiction and always went on passing orders without following the fair procedure and without deciding the jurisdictional issue. It is further contended that the entire claim against the petitioner is false and fictitious. Certain expressions made by the respondent No. 2 during the hearing is also stated and relied upon as a ground for transfer as it reflects bias on the part of respondent No. 2 and he will not act fairly, as an independent quasi-judicial authority. ( 4 ) PER contra, Mr. M. Chinnasamy, the learned Special Government Pleader contends that the respondent no. 1 is residing within the jurisdiction of the respondent no. 2 and, therefore, the respondent No. 1 could maintain the claim. Though the incident occurred in Tirunelveli District, there is no bar for the respondent No. 2 entertaining the claim. ( 4 ) PER contra, Mr. M. Chinnasamy, the learned Special Government Pleader contends that the respondent no. 1 is residing within the jurisdiction of the respondent no. 2 and, therefore, the respondent No. 1 could maintain the claim. Though the incident occurred in Tirunelveli District, there is no bar for the respondent No. 2 entertaining the claim. It is further pointed out that the petitioner was always trying to avoid the claim as seen from the fact that the petitioner had moved this court on more than one occasion. ( 5 ) IT is to be pointed out here that when allegations of bias and mala fides had been alleged against the respondent No. 2 by impleading him personally, it is incumbent on the part of the respondent No. 2 to have come forward and file a counter. In the absence of a counter by the respondent no. 2, allegations of bias and allegations that the respondent No. 2 has been acting unfairly or unreasonably or arbitrarily has to be sustained. Certain portions of the order dated 31. 1. 2002 passed by respondent No. 2 also reflects on the respondent no. 2. It reads thus:"thereafter the respondent has filed an LA. petition dated 9. 9. 2000 praying to set aside the ex pane order dated 2. 8. 2000 alleging some false, mischievous contentions spoiling the image of this court. A notice from this court dated 28. 9. 2000 was issued why it should not be brought to the notice of the Bar council for further action. No reply was received from the counsel. However, a cost of Rs. 10,000 was imposed to set aside the ex pane order. Aggrieved over this order, the respondent had filed a petition before the High Court, Chennai to stay all the proceedings of this court. The Honble High Court, Chennai in c. M. P. No. 7110 of 2001 in C. R. P. No. 1311 of 2001 dated 24. 7. 2001 has pass ed an order for payment of Rs. 5,000 as costs for setting aside the ex pane order. Further, the High Court, Chennai also directed to dispose of the main case within a period of three months. In the meanwhile, the respondent has filed a petition raising a preliminary objection dated 26. 12. 2001 over jurisdiction and to transfer this case to Commissioner workmens Compensation, Tirunelveli. 5,000 as costs for setting aside the ex pane order. Further, the High Court, Chennai also directed to dispose of the main case within a period of three months. In the meanwhile, the respondent has filed a petition raising a preliminary objection dated 26. 12. 2001 over jurisdiction and to transfer this case to Commissioner workmens Compensation, Tirunelveli. This plea was rejected by this court. Thereafter the respondent has filed a petition dated 26. 12. 2001 read above to issue the certified copies of affidavit petition and transfer petition. It is also brought to the notice of the respondent that he is delaying the proceedings paving way for contempt of Honble High court direction in disposing of this case within 3 months. " ( 6 ) THE portion extracted above would show the mind of the respondent No. 2 as well as his approach which approach has made the petitioner to comment. In the administration of justice be it judicial or quasi-judicial, fairness is most important and justice should be seen to be done. This aspect of the matter is being highlighted by the counsel for the petitioner. Even if a revision is preferred, the Presiding Officer cannot take it personally and treat as if such revision is a challenge to his order, or as an affront to his authority. Being a quasi-judicial authority the respondent No. 2 is expected to act fairly and reasonably and there shall be no bias nor there could be a room for bias and justice should be seen to be rendered. Ex facie, a perusal of the portion extracted above would show that the respondent No. 2 Mr. A. Chandran, deputy Commissioner of Labour, Madurai has not acted fairly and he has also failed to keep himself as an independent authority creating confidence in the minds of the claimants/objectors who appear before the said authority. The objection to the claim may be true or may not be true or may be even frivolous. Yet, the objection has to be considered and the claim has to be decided fairly, reasonably and justice should be seen to be done. ( 7 ) APART from the above aspect, on the earlier occasion the petitioner filed an application to set aside the ex pane order dated 2. 8. Yet, the objection has to be considered and the claim has to be decided fairly, reasonably and justice should be seen to be done. ( 7 ) APART from the above aspect, on the earlier occasion the petitioner filed an application to set aside the ex pane order dated 2. 8. 2000 in W. C. No. 22 of 1998, where the petitioner had alleged that the case was initially filed by one Chandran who is a court clerk and who is influencing in passing the orders. But the said interlocutory application was dismissed on 23. 2. 2001. In the affidavit filed in support of the said interlocutory application, the following averments have been set out: “initially W. C. No. 22 of 1998 was filed by one Chandran. He is a court clerk and influencing the passing of order. But that petition was dismissed by this honble court on 28. 12. 1999. After the dismissal of W. C. No. 22 of 1998 the matter ends. The filing of a fresh petition by one Antoni Ammal was not known to me. I never received the copy of the new petition. When a new petition is filed, fresh W. C. number ought to have been given, and fresh notice ought to have been issued to me. But no notice was given to me. The said Chandran, court clerk has influenced to adopt an illegal procedure, without notice to me, to get an ex pane order. The whole proceedings is void. I am living at Tirunelveli. I engaged a lawyer to appear for me. But unfortunately, no intimation was given to me or to my lawyer about the inquiry in the above case. On account of that, I had no opportunity to know the proceedings. I was also ill from 2. 3. 2000 to 30. 5. 2000 and the medical certificate is herewith enclosed. " ( 8 ) ON the filing of such an affidavit, the respondent No. 2 had sent a notice to Mr. S. Ahamed Hassan, Advocate, counsel appearing for the petitioner herein to the effect that if the allegations are brought out to the notice of the court with the supporting affidavit, the matter will be brought to the notice of the Bar Council for further action, besides directed the advocate to desist from throwing mud-slinging complaint against his proceedings and returned the said application. Once again an identical affidavit has been filed in the said LA. No. 10 of 2001. In the said interlocutory application, the respondent No. 2 passed the following order:"take further notice that in default of your appearance on that day before mentioned the matter will be heard and determined in your absence. LA. will be allowed on payment of costs of Rs. 1,000 which should be paid at the time of first hearing on 19. 3. 2000. Otherwise, the petition will automatically get dismissed. " ( 9 ) BEING aggrieved by the order dated 23. 2. 2001, a revision was preferred before this court in C. R. P. No. 1311 of 2001. F. Ibrahim Kalifulla, J. , finally on 24. 7. 2001 held thus:" admittedly, no notice was given to the petitioner before the order dated 2. 8. 2000 passed by the Commissioner for Workmens Compensation. During the pendency of this revision, while continuing the stay, the petitioner was directed to pay a sum of Rs. 5,000 to the respondents as a condition precedent. Learned counsel for the petitioner states that the said sum has been paid and the learned counsel for the respondent also confirmed the receipt of payment. In the circumstances, when admittedly the order dated 2. 8. 2000 came to be passed by the Commissioner for Workmens compensation without any notice to the petitioner, the petitioner is justified in claiming that he should be heard on merits on the claim of the respondent. " ( 10 ) AFTER the above order, the petitioner has filed his objections and one of the objections being that the respondent No. 2 has no jurisdiction to entertain the petition since the alleged incident had taken place in Tirunelveli District and the claimant is not residing in the address given in the claim petition. The petitioner has also filed an application to consider his objections regarding jurisdiction as a preliminary objection. The claimant in her examination admitted that she is residing at Thuraiyur, that the address in her claim petition as if she is residing at Madurai is not correct. She also deposed that she was not aware of the filing of the claim petition. The said admissions rather advance the very objection raised by the revision petitioner. ( 11 ) THAT. APART, on 13. 12. She also deposed that she was not aware of the filing of the claim petition. The said admissions rather advance the very objection raised by the revision petitioner. ( 11 ) THAT. APART, on 13. 12. 2001, the revision petitioner has filed an affidavit before respondent No. 2 alleging that he is being compelled to settle the disputes. Once again another affidavit dated 26. 12. 2001 has been filed by the revision petitioner alleging that he has been compelled to compromise the matter with respondent while wielding threat. It is further stated that petitioner may not get justice and he has sought for a transfer of the proceeding. ( 12 ) IN the affidavit, the petitioner had specifically made allegations against the respondent No. 2, Deputy Commissioner of Workmens Compensation at Madurai that he has no jurisdiction. Further, his request for transfer of the case has been (ejected and the order dated 31. 1. 2002 is extracted above. In fact, by order dated 5. 2. 2002 respondent No. 2 had declined to furnish certified copy of the affidavit and transfer petition stating that there is no need. According to petitioner, this again would demonstrate the respondent No. 2 being not fair. ( 13 ) IN the light of the above background, this court is of the considered view that in all fairness the respondent No. 2 should have relieved himself of the proceedings as an independent authority, instead of taking an extreme stand and insisting that the petitioner should go on with the matter. ( 14 ) WHEN the respondent No. 1 herself had admitted that she is residing at Thuraiyur, (Tirunelveli District) even on the date of filing of the petition as well as subsequently, it is rather extraordinary for the respondent No. 2 to have retained the matter on his file. ( 14 ) WHEN the respondent No. 1 herself had admitted that she is residing at Thuraiyur, (Tirunelveli District) even on the date of filing of the petition as well as subsequently, it is rather extraordinary for the respondent No. 2 to have retained the matter on his file. Section 21 of the Workmens compensation Act, 1923 provides that a petition shall be filed before the Commissioner for the area in which the accident took place which resulted in the injury of the workman, or in case of his death, the dependant claiming compensation ordinarily resides, or the employer has his registered office ( 15 ) IN the light of the admission of the claimant that she is permanently residing at Thuraiyur, in Tirunelveli District and the alleged incident took place in Tirunelveli District the venue of the proceedings in terms of section 21 shall be before the commissioner for Workmens Compensation, Tirunelveli District. In this case a specific objection has been raised and the evidence of the claimant herself before the respondent No. 2 is fatal. The relevant portion of her evidence reads thus: (1) After the delivery of the order, Mr. Chinnasamy, learned Special Government Pleader represented that the respondent No. 1 is a helpless widow, who has no income and taking into consideration her social conditions, this court may direct the petitioner to pay a reasonable sum so that she could engage an advocate and also contest the proceedings. For such a course, the counsel for the petitioner has readily agreed. (2) In the circumstances, the petitioner is directed to pay a sum of Rs. 10,000 to the respondent No. 1 within two weeks from the date of receipt, of this order. The said payment shall be considered as ex gratia payment. After this said payment alone, a hearing date be fixed by the transferee Deputy Commissioner of labour, Tirunelveli. ( 16 ) IN the light of the above discussions, though Mr. M. Chinnasamy, the learned special Government Pleader persuasively contended that the respondent No. 2 has jurisdiction to proceed with the matter, this court is unable to sustain the same. It is clear from the above discussions the respondent No. 2 has no jurisdiction and only to confer jurisdiction a such version has been set out as if she is residing within the jurisdiction of the respondent No. 2. It is clear from the above discussions the respondent No. 2 has no jurisdiction and only to confer jurisdiction a such version has been set out as if she is residing within the jurisdiction of the respondent No. 2. This position is cleared from the above admission of the claimant before the respondent no. 2. Much could be said against the respondent No. 2. But judicial restraint requires this court to desist from adding anything more. The respondent No. 2 himself, as already pointed out should have relinquished himself from the proceedings as against him serious allegations have been made and he has failed to act reasonably and fairly. For the foregoing reasons, this court shall order transfer of the claim petition in W. C. No. 22 of 1998 from the file of the respondent No. 2 to the file of the Commissioner for Workmens Compensation and Deputy Commissioner of labour, Tirunelveli. ( 17 ) IN the result, the C. R. P. is allowed and there will be a direction directing the respondent No. 2 to transfer W. C. No. 22 of 1998 pending on his file to the file of the Deputy Commissioner of Labour and commissioner for Workmens Compensation, Tirunelveli. ( 18 ) CONSEQUENTLY, connected C. M. P. is closed. The parties shall bear their respective costs. Revision allowed.