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2012 DIGILAW 1399 (MAD)

Manoharan v. Deputy Commissioner of Labour II

2012-03-19

K.CHANDRU

body2012
Judgment 1. This writ petition came to be posted before this Court on being specially ordered by the Hon’ble Chief Justice vide order dated 15.03.2012. 2. The writ petition is filed by the petitioner claiming to be the Proprietor of Sai Leather Company at Madhavaram, challenging an order passed by the first respondent Commissioner for Workmen Compensation cum Deputy Commissioner of Labour II made in unnumbered I.A.in W.C.Case No.639 of 2006 dated 29.08.2007. 3. By the impugned order, the Commissioner rejected the petitioner's application to direct the second respondent to appear before the Medical Board. The authority observed that the application was filed belatedly only on 10.08.2007 contending that the loss of earning capacity was on the higher side and therefore, the second respondent should submit herself for medical examination. The Commissioner also observed that the second respondent examined herself as P.W.1 and also examined the Doctor viz., P.W.2 and during that period, the petitioner had ample opportunity of raising objections but he did not do so. 4. In the writ petition, notice regarding admission was granted on 08.10.2007 and the writ petition is yet to be admitted. Pending the writ petition, this Court granted an interim injunction for a period of six weeks. The contesting second respondent is yet to be served. Though the petitioner volunteered to effect substituted service on the ground that the earlier notice sent to the second respondent came back unserved, this Court is not inclined to adjourn the matter on that ground. 5. In the present case, an application was filed by the petitioner under Section 11(2) of the Workmen's Compensation Act, 1923 seeking for a direction from the first respondent to the second respondent to subject herself for examination by a Medical Board. On notice being ordered, the said application was resisted by the second respondent and thereafter, the first respondent passed the impugned order rejecting the request of the petitioner. On notice being ordered, the said application was resisted by the second respondent and thereafter, the first respondent passed the impugned order rejecting the request of the petitioner. Since reliance was placed on Section 11 (1) & (2), it is necessary to set out the aid provision:- "11.Medical examination (1) Where a workman has given notice of an accident, he shall, if the employer, before the expiry of three days from the time at which service of the notice has been effected, offers to have him examined free of charge by a qualified medical practitioner, submit himself for such examination, and any workman who is in receipt of a half-monthly payment under this Act shall, if so required, submit himself for such examination from time to time: Provided that a workman shall not be required to submit himself for examination by a medical practitioner otherwise than in accordance with rules made under this Act, or at more frequent intervals than may be prescribed. (2) If a workman, on being required to do so by the employer under sub-section (1) or by the Commissioner at any time, refuses to submit himself for examination by a qualified medical practitioner or in any way obstructs the same, his right to compensation shall be suspended during the continuance of such refusal or obstruction unless, in the case of refusal, he was prevented by any sufficient cause from so submitting himself." 6. In the present case, as can be seen from Proviso to Section 11(1), no such demand was made by the employer directing the workman to subject herself for any examination. The Act itself makes it clear no other permission is contemplated for such examination. 7. In the light of the same and in view of the reasons adduced by the Commissioner, this is not a fit case where any interference is called for pending the final outcome of the W.C Case. Ultimately, it is for the claimant to let in appropriate evidence to justify the loss of earning capacity and thereafter, the Commissioner will have to pass appropriate orders on the basis of evidence. Even after, if Commissioner commits any error in assessing the loss of earning capacity, the Act itself provides for appeal to this Court under Section 30 of the W.C.Act. Even after, if Commissioner commits any error in assessing the loss of earning capacity, the Act itself provides for appeal to this Court under Section 30 of the W.C.Act. Hence, interfering at the interim stage is not called for that too in a matter involving compensation claim made by the workman. It is regrettable that the matter has been pending for the last five years even at the interim stage. 8. In the light of the above, the writ petition stands dismissed. Cost of Rs.3,000/-(Rupees Three thousand only) is ordered to be paid by the petitioner to the counsel for the second respondent. Connected miscellaneous petition is closed. 9. Since matter is pending for the last six years, the Commissioner is directed to expedite the hearing of the case and pass orders in accordance with law within a period of three months from the date of receipt of a copy of this order.