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Chhipa Allarakha Isakji Vs. Bai Sona - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai
Decided On
Case NumberAppeal No. 8 of 1928
Judge
Reported in(1928)30BOMLR1610; 114Ind.Cas.372
AppellantChhipa Allarakha Isakji
RespondentBai Sona
DispositionAppeal dismissed
Excerpt:
.....compensation act (viii of 1923), sections 28, 30-power of commissioner to pass order by consent of parties-appeal to high court from such order-jurisdiction.;the commissioner for workmen's compensation has power, in contested proceedings before him, to pass any order or decree by consent of the parties, no appeal lies to the high court from such order or decree.;section 28 of the workmen's compensation act primarily refers to cases where the parties have arrived at an agreement prior to a hearing by the commissioner. - - ' the expression' deposited 'there clearly refers to section 8 of the act, which provides that 'compensation payable in respect of a workman whose injury has resulted in death shall be deposited with the commissioner,'and then the sum so deposited is to be dealt with..........we have here a substantial question of law, because the commissioner had no jurisdiction to pass a consent decree in the way that he did. moreover, although rule 38 of the workmen's compensation rules applies certain provisions of the civil procedure code including rules 1 and 2 of order xxiii, they do not include rule 3 of order xxiii, viz., 'where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise,...the court bhall order such agreement, compromise...to be recorded, a ad shall pass a decree in accordance therewith, so far as it relates to the suit,' but that rule also contemplates, i think, in general, a case where the parties have come to an agreement outside the court, and ask the court to settle the.....
Judgment:

Amberson Marten, Kt., C.J.

1. This is an appeal under the Workmen's Compensation Act, 1923. It is of rather a curious nature. Both parties were represented by pleaders before the Commissioner, and the order appealed from is quite simple, viz. 'By cogent Rs. 2,250 to be deposited with Commissioner on or before January 3, 1928. No order as to costs.' The expression' deposited 'there clearly refers to Section 8 of the Act, which provides that 'compensation payable in respect of a workman whose injury has resulted in death shall be deposited with the Commissioner,' and then the sum so deposited is to be dealt with in certain ways. So, too, in the diary, which was kept by the Commissioner under the rules, after recording that certain issues had been raised and two witnesses heard, the entry runs as follows:-' At this stage parties agree that the opposite party should deposit Rs. 2,250 on or before January 3, 1928. Ordered accordingly. No order as to costs.'

2. Now the first point that arises is what jurisdiction have we to interfere with what purports to be a consent order. The appeal is based on Section 30 of the Act, but there are two provisos to that section, viz. (a) 'No appeal shall lie against any order unless a substantial question of law is involved in the appeal'; and (b) 'no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner or in which the order of the Commissioner gives effect to an agreement come to by the parties.'

3. The first question, therefore, is whether there is here a substantial question of law involved in the appeal. Now a dispute as to whether two parties have agreed or not to a certain decree is not in general a question of law. Still less is it a substantial question of law. It is in general a pure question of fact. But it is argued that under this Act the Commissioner has no power in contested proceedings before him to pass any order or decree by consent of the parties. He must either give his decision, or else the parties must comply with the provisions of Section 28 which deals with the registration of agreements. That section, however, seems to me to refer primarily to cases where the parties have arrived at an agreement prior to any hearing before the Court. In that case Section 23 provides inter alia that the agreement shall be registered after notice. Further, the rules which have been framed by the Governor-General in Council, under Section 32(c) of the Act, provide in Rule 44 for this agreement being in a particular form, and for the Commissioner issuing notices with reference to it and so on. Those rules, I think, clearly contemplate an agreement prior to any hearing by the Commissioner. 1 should here like to take this opportunity on behalf of the Court of thanking Mr. Coyajee (junior) as amicus curiae for his industry in obtaining for us these rules which have been published in the Gazette of Government of India on June 28, 1924, at p. 586, and which were unknown not only to the Sheristedar of the Court, but also to counsel appearing in the case. Nor apparently were they included in, at any rate, one of the text books which counsel had in Court,

4. Proceeding with the argument of counsel for the appellant, it in contended that we have here a substantial question of law, because the Commissioner had no jurisdiction to pass a consent decree in the way that he did. Moreover, although Rule 38 of the Workmen's Compensation Rules applies certain provisions of the Civil Procedure Code including Rules 1 and 2 of Order XXIII, they do not include Rule 3 of Order XXIII, viz., 'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise,...the Court Bhall order such agreement, compromise...to be recorded, a ad shall pass a decree in accordance therewith, so far as it relates to the suit,' But that rule also contemplates, I think, in general, a case where the parties have come to an agreement outside the Court, and ask the Court to settle the suit in accordance therewith.

5. In the present case the parties were actually before the Court on a contested matter in which issues had been raised, and some. evidence led and then the parties agreed to terms. Thereupon the Court passed an order in accordance with their consent. I confess it is rather startling to be told that in an ordinary case the Court has no power to pass an order by consent of the parties, except under Order XXIII, Rule 3, assuming of course the matter is one within its general jurisdiction. That proposition is certainly quite erroneous as regards the Original Side. And as regards the Commissioner's Tribunal, I should have thought that the answer was one of common sense, and that no objection could be taken to the present order as being in any way illegal. The workman, or rather his representatives, were getting the full amount of their claim, minus coats. If the employer was willing to pay that amount, what more was to be said. Surely no judgment was required. It was sufficient to record the matter by consent, and direct the money to be paid. The only concession which the employer obtained was that he had not got to pay the costs, and, as to this, the Commissioner had already heard enough of the case to know if it was a fair concession for the workman's representatives to make. It seems to me, therefore, that it cannot be successfully argued here that there is any substantial question of law raised in this appeal. Consequently, I think, the first proviso bars this appeal.

6. Under these circumstances it is unnecessary for us to consider whether the second proviso to Section 30 applies also. I do not think this is a case where the parties have agreed to abide by the decision of the Commissioner, but the other part of this proviso as to whether the order of the Commissioner gave effect to an agreement come to by the parties, is another matter. Prima facie these words are wide enough to cover the present order. But it is argued that the proviso only refers to a registered agreement within Section 28, and I leave it at that.

7. As to consent orders generally, if one was dealing with a matter not before the special tribunal constituted by this Act, but before an ordinary Law Court under the Civil Procedure Code, then it would, I think, be clear that in general no appeal would lie from a consent decree. Thus Section 96(3) of the Civil Procedure Code says; 'No appeal shall lie from a decree passed by the Court with the consent of parties,' Accordingly, in general, it would be necessary to bring a fresh suit, if it was sought to set aside a consent decree on such grounds as misrepresentation, fraud, or mistake (see Mulla's Civil Procedure Code, 8th Ed. p. 265).

8. It has been urged that unless we can interfere here, then litigants are without a remedy, supposing there is a case where the Commissioner has made a mistake in recording an order as being by consent. I appreciate that, having regard to Section 19(2) of the Workmen's Compensation Act which largely ousts the jurisdiction of the Courts, there may be a difficulty in the way of the appellant bringing a fresh suit before the ordinary civil Courts to set aside this alleged consent decree. Nor is there any provision in the Workmen's Compensation Act itself for any such suit being brought before the Commissioner. But after all this is a, matter for the Legislature to amend, if at all, and not for ourselves. The Legislature has created a special tribunal ousting the jurisdiction of the ordinary civil Courts of the land, and if this results in any hardship to individuals, then the hardship must be rectified by the legislative authority which created the special tribunal.

9. So far as the facts of the present case go, I confess on the materials before us that the appellant hardly excites one's sympathy. In the first place, as he was represented by a pleader, there should certainly have been an affidavit by his pleader, stating that in fact no consent decree was arrived at, or explaining the circumstances under which what purports to be a consent decree was obtained. There should at least have been a reference in the appellant's affidavit as to why he could not get his pleader to make any affidavit if that be the fact. In the result, how-over, the present application comes before us without even a reference to the pleaders; and as to what actually happened before the Commissioner the affidavits on either side are at total variance. Clearly one side or the other is committing perjury. They cannot even agree as to who was present at the hearing before the Commissioner.

10. There is also another point. This consent order was passed on November 12, 1927, but it was not till January 5, 1928, that any appeal was filed in this High Court. This delay is hardly consistent with the appellant's story that the Commissioner purported to pass by consent an order which in fact the appellant did not consent to. Moreover, it does not appear that any application whatever was made to the Commissioner to review his order, or to ask him for any explanation or statement with reference to the allegations which the appellant now makes, I do not say one way or the other whether legally the Commissioner has power to review any decision he has once given. But, I, at any rate, would strongly discourage an application of the present type, which is made behind the back of the Commissioner, from what purports to be a consent order and makes allegation against him which are totally denied by the other side.

11. In my judgment this appeal ought to be dismissed with costs.

Murphy, J.

12. I aggree.


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