S. Barman, J.
1. This is an appeal by the employer appellant under Section 30 of the Workmen's Compensation Act, 1923 (Act No. VIII of 1923) from an order of the Commissioner under the said Act, finding the employer-appellant liable to pay a compensation of Rs. 2,016/- to the workman who is the respondent in the present appeal.
2. The facts shortly are these; On May 9 1954, the workman-respondent was a welder under the employer appellant, the Central Engineering Corporation, the then contractor for the Hirakud Dam project represented by the Executive Engingeer, Quarry Division, Hirakud Colony. On the date of the incident at about 5 A. M. the workman-respondent met with an accident, while he was welding two plates in the crusher by the side of the belt in the circumstances stated by him. The workman-respondent got two injuries one on the shoulder blade and the another on the left arm which was completely disabled.
After having been given necessary first-aid as an out-door patient, he was admitted into the Hirakud Hospital as an in door patient and he stayed there for 3 1 /2 months. Thereafter he submitted his claim under Section 10 of the Workmen's Compensation Act. The employer-appellant in due course, tiled an objection disclaiming liability to pay compensation on grounds stated in his objection filed. The Commissioner under the Workmen's Compensation Act considered, the claim on evidence. On behalf of the workman-respondent two witnesses werecalled including the workman-respondent himself P. W. 1 and one Pater Mathews P. W. 2.
The employer appellant called only one witness being D. W. 1. the indoor doctor. On materials before the said Commissioner he held that personal injury was caused to the workman-respondent in the said accident arising out of and in the course of the employment under the said employer-appellant and that the employer-appellant was liable to pay compensation under the said Act. The basis on which the Commissioner arrives at the figure of Rs. 2,016/- was stated in his order under appeal, on his finding; that the workman was permanently disabled to the extent of 60 per cent. He therefore, assessed the compensation under schedule IV of the Workmen's Compensation Act. It is against this order that the present appeal has been filed by the employer-appellant.
3. Mr. G. Rath, the learned counsel appearing for the workman-respondent, took a preliminary point as to the maintainability of the appeal. His contention was that no certificate by the Com-misioner to the effect that the employer-appellant had deposited with him the amount payable under the order appealed against, having accompanied the memorandum of appeal as required by the third proviso to Section 30(1) of the said Act, the appeal did not lie, for according to him, the proviso is mandatory and not merely directory. My attention was drawn to the express language in the proviso that 'no appeal shall lie unless . . ' In support of his contention Mr. G. Rath cited before me a decision of the Calcutta High Court in B. P. Nandy v. General Manager, East India Rly-AIR 1954 Cal 453. Where the Chief Justice Chakra-varty delivering the judgment dealt with the principle underlying the third proviso in Section 30(1) of the Act.
The principle of Section 30 is that if the appeal be such that by it the workman's right to the compensation awarded to him is placed in jeopardy, security for the workman must be provided for by the deposit of the amount of compensation and such a deposit would be essential to the maintainability of the appeal. If on the other hand, the workman's right to the compensation awarded does not come into question in the appeal at all, there is no risk to the workman's getting the compensation awarded to him and there is thus no necessity for requiring anyone, preferring such an appeal to deposit the compensation money.
In the present case, it was clearly an order in favour of the workman-respondent who was awarded by the Commissioner a compensation of lump sum of Rs. 2,016/-. The present appeal certainly places the workman's right to the said compensation awarded to him in jeopardy and therefore law requires that security for the workman must be provided for by the deposit of award amount Rupees 2016/-. Recently, on a question of interpretation of a similar provision in the Representation of the People Act, 1951 (Act 43 of 1951), as amended by Act 27 of 1956, namely Section 117 of the said Act, which provides that Government Treasury receipt. showing that the deposit of the required amount has been duly made, shall be enclosed with an election petition to be filed within certain time, in an Election Appeal filed in the High Court, Jagannath Dalai v Ramacnandra Nahak, (M. A. No. 184 of 1957 and O. J. C. No. 175 of 1957 (unre-ported) I expressed the view that Section 117 is mandatory.
The question whether Section 117 is mandatory or directory was clearly explained by their Lordships of the Supreme Court in Kamaraja Nadar v, Kunju Thevar, 1958 SCJ 680: (AIR 1958 SC 687) wheretheir Lordships while dealing with the essential requirements for validity of a deposit under Section 117 of the Representation of the People Act, 1951, made it clear that where there was no Government security deposit receipt at all enclosed with the election petition, the appeal shall he dismissed on that ground alone. This was also on the principle that when the election of a sitting candidate was being challenged, the election petition was placing such candidate in jeopardy for extraneous reasons; and there must be security for costs at such election petition so that frivolous election petition of any kind likely to be instituted for harassing the sitting candidate may be discouraged.
I reiterate the same view also in the context of the third proviso to Section 30(1) of the Workman's Compensation Act. My view is further strengthened by the observations of the Chief Justice Chakra-vartty in the Calcutta case cited above. It is needless to say that the mandatory character of such provisions is based on sound reasoning and it is not without any purpose that the Legislature makes these provisions expressly mandatory couched in such language in the way it has been done in the third proviso to Section 30(1) of the Workmen's Compensation Act.
4. The construction of third proviso to Section 30(1) of the Act was also considered recently by the Patna High Court in Bhurangyji Coal Co. Ltd, v. Sahebjan Mian, AIR 1956 Pat 299 (Ahmed and Misra JJ.) where it was observed that the proviso demands that the certificate should be filed along with the memorandum of appeal as an essential part of it. In other words an appeal as contemplated by it cannot be said in law to be; an appeal unless it is accompanied with the aforesaid certificate of the Commissioner. The filing of a memorandum of appeal cannot by itself amount in law to a formal presentation of an appeal unless the memorandum of appeal is accompanied with the certificate referred to in the proviso.
These observations by Ahmed J. were not however accepted by the other learned Judge, Misra. J., both constituting the Division Bench of the Patna High Court. Misra J., on this point expressed that he was inclined to agree with the view of Sarjoo Prasad J., (as he then was) in Ramnivas Khandel-wal v. Mt, Mariam, AIR 1951 Pat 260, where some doubt was expressed that although the required certificate has to be filed before the appeal is heard, the mere fact that it is not presented along with the memorandum will not have the effect of rendering the Filing of the appeal itself invalid, it it is otherwise in order.
Misra J. however did not express any tinal opinion on that occasion as to whether an appeal would be incompetent in terms of the third proviso to Section 30(1) if the memorandum of appeal is not accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. In the earlier decision of the Patna High Court delivered by Sarjoo Prasad J., the delay in filing the appeal was condoned on the ground that the appellant was given allowance for the period occupied in taking a certified copy of the order In his judgment, doubt was expressed as to whether merely because of the non-production of the certificate within the period of limitation the appeal will become time-barred.
It was also expressed that on the language of the Section it is doubtful whether when an appeal has been filed within the period of limitation allowed by law, it would be time-barred merely because it is not accompanied with a certificate by the Commissioner to the effect that the appellanthas deposited with him the amount payable under the order appealed against. On a careful reading of the judgment of Sarjoo Prasad J., in the earlier Patna case, it appears to me that on the facts, it was not necessary to decide this question, because on the facts of that case the delay was condoned and therefore in that decision their Lordships apart from expressing doubt did not express any conclusive view on the point. However, following the Calcutta decision cited above I hold that the appeal is not maintainable.
5. Mr. G. Rath, the learned Counsel for the workman respondent, next contended that there-having been no substantial question of law involved, the appeal did not lie by virtue of the first proviso to Section 30(1) of tbe Act. The words 'Substantial question of law' also occur in Section 110 of the Code of Civil Procedure as also in Section 70) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The meaning of these words has been construed differently in the light of the particular Act in which they occur. The Allahabad High Court in Jwalj v. Babu Lal. AIR 1958 All 564, while interpreting the phrase 'substantial question of law' as-used in the first proviso to Sub-section (1) of Section 30 of the Workmen's Compensation Act expressed that the phrase must be given a wider construction than what is attributed to it under Section 110, Civil Procedure Code, namely, that it would not cover cases of application of well-settled principles of law to a particular set of facts.
The phrase for the purpose of Section 30 of theAct should therefore be construed to cover even a case in which the Commissioner has clearly misdirected himself on question of law such as where he awards compensation without having a notice of the proceedings served on the employer. A similar view in favour of a wider construction of the phrase was also expressed in the earlier decision of the Allahabad High Court in Upper Ganges Electric Employees Union v. Upper Ganges Valley Electricity Supply Co. Ltd., AIR 1956 All 491, in which the Court bad to consider the meaning of the same phrase as used in Section 7(1) of tbe Industrial Disputes (Appellate Tribunal) Act, 1950. In the present case on the merits with which I shall deal hereafter, I am satisfied that no such substantial question of law is involved.
Tbe Commissioner did not in any way misdirect himself as in the Allahabad case. Nor did there arise any other substantial question of law as will appear from the facts hereinafter discussed on merits. In this view of the matter, I accept the contention of the learned counsel for the workman-respondent that this appeal does not lie on this ground also.
6. Mr. R. N. Misra, the learned Counsel for the employer-appellant, on the other hand attacked the maintainability of the workman-respondent's application itself under Section 10 of the Act, He relied on Section 22 of the Act in support of his contention that no attempt was made for settlement and therefore the Commissioner did not assume jurisdiction until' such attempt at settlement had been made. Section 22 of the Act provides that no application for the settlement of any matter by a Commissioner shall be made
'unless and until some question has arisen between the parties in connection therewith which they have been unable to settle by agreement',
It is contended that attempt at settlement was a condition precedent to the jurisdiction of the Commissioner to adjudicate the alleged claim. The word 'claim' referred to in Sections 22 and 10(1) does not refer to a claim made on the employers butdenotes a formal claim made before the Commissioner. A claim under the Act is not required to be made by an application under Section 22 of the Act. It is to be made under Section 10, as was done in the present case. The application referred to in Section 22 of the Act is an application for the settlement of 'any matter'1 by the Commissioner, that is to say, it contemplates an application for settlement after the claim is made under Section 10. It was never the intention of the Legislature that a claim should not be entertained or enquired into or that no compensation should be granted unless the application was in strict form. Consequently failure to give all the particulars required by the section in the claim for compensation or to file a certificate referred to in rule 20(2) of the Rules framed under the Workmen's Compensation Act does not bar the claim. If these particulars and certificates are necessary the Com-missioner can obtain them. This point was discussed by the Assam High Court in Fakiragram Rice Mills v. Ramu Indu, AIR 1950 Assam 188, where it was held that a claim under the Act is not required to be made by an application under Section 22 of the Act. A claim is required to be made under Section 10 and no particular form is prescribed. Section 22 refers in terms to an application for settlement of any matter, that is, it contemplates an application for settlement after a claim is made under Section 10, The discussion in the judgment of the High Court indicates the scope of Sections 10 and 22 of the Act. In this context my attention was drawn to the Second proviso to Section 10(1) of the Act where it provides that' the want of or anydefect or irregularity in a notice shall not be a bar to the entertainment of a claim. Furthermore, theproviso to Clause (b) of Section 10(1) gives jurisdiction to the Commissioner to entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given. Furthermore, it is not that the notice under Section 10 of the Act was denied by the employer-appellant.
On the question of jurisdiction of the Commissioner, pointedly raised on behalf of the employer-appellant, it appears that the provision in Section 22 does not mean that before the Commissioner can assume jurisdiction there must be some attempt to agree which had proved unsuccessful but it means 'if not settled by agreement.' The interpretation of corresponding provisions in the British Law On the subject was considered in Hogg v. Vickers Ltd., (1921) 14 B. W. C. C 229. By British Workmen's Compensation Rules (1913-1920), Rule 8(1), an application to settle any matter by arbitration cannot be made 'unless and until some question has arisen between the parties' and such question 'has not been settled by agreement'. It was contended on behalf of the employers in the Court of Appeal, that it cannot be inferred that the parties failed to come to an agreement when the only evidence shows that they never approached each other with a view to coming to an agreement and that 'failure to agree' meant 'failure to agree after trying to agree.' As against this contention, it was argued on behalf of the workman that the workman should not be tied down to prove affirmatively attempts to arrive' at an agreement which have failed and that the fact remained that the parties had not agreed. On these facts, it was held that there was no obligation on the parties to attempt to settle before they can proceed to arbitration and that the claim could be made even in default of any such attempt. Section 22(1) of the Indian Workmen's Compensation Act is substantially the same as the correspondingprovision in the British Law which was considered in the case cited above. I accept the interpretation in (1921) 14 BWCC 229, cited above to becorrect. In this view of the matter, the point taken by the employer-appellant challenging the jurisdiction of the Commissioner fails.
Besides, none of these points were however taken in the grounds of appeal and therefore 1 do not accept these contentions made on behalf of the employer-appellant.
7. On merits, Mr. R. N. Misra, the learned Counsel appearing for the employer-appellant, argued that no opportunity was given to the employer-appellant to produce evidence. In this connection I looked into the order-sheet of the Commissioner which gives the following picture: On 17-8-1955 the papers do not appear to have been complete. The enquiry was adjourned to be held on 6-9-1955 for determination of the liability of the employer-appellant to pay the compensation, Notice was directed to be issued to the employer-appellant informing him about the date of enquiry and also the fact that he should be free to adduce evidence in support of his contention. On 6-9-1955 both parties were present. The employer-appellant wanted time and accordingly the case was adjourned to 8-9-1955 for hearing. On 8-9-1955 the parties were present -- two witnesses of the workman-respondent were examined and the matter was adjourned to 29-9-1955. The employer appellant wag directed to come ready with all his evidence and to file process on the following day if he wanted to summon any witnesses. In due course, on 29th September 1955 the employer-appellant appeared before the Commissioner ready with his witnesses. As, however, it was already 4.30 P. M. that day, the matter was adjourned till the following day. Then, on the following day (30-9-1955) the employer-appellant applied for time on the ground that the Medical Officer had not appeared in obedience to the summons, the service return of which was not back. Accordingly, the matter was adjourned to 19-10-1955 and the Medical Officer was directed to be re-summoned. On 19-10-1955 the employer-appellant appeared and stated that the doctor witness had not produced records called for. The doctor also admitted having not brought the documents. Accordingly, the Commissioner adjourned the matter to 20-10-1955 and directed the doctor to produce records and appear for giving evidence on the following day.
On 20-10-1955 the Medical Officer called on behalf of the employer-appellant was examined, cross-examined and discharged. Then the lawyer for the employer-appellant undertook to file certain copies of the documents exhibited by the Medical Officer. The employer-appellant then also prayed for examining himself. Prom the Order-sheet of the Commissioner, it is clear that the employer-appellant had on 30-9-1955 stated that he would examine the doctor a]one. The employer-appellant was himself present on the last date of hearing on 20-10-1955 in Court all along when the evidence of the doctor witness was being recorded.
The Commissioner disallowed the prayer of the employer-appellant for examining himself at that stage. It is on these facts that it is complained that the Commissioner did not give the employer-appellant sufficient opportunity to produce evidence, I am, however, satisfied from the records that the employer-appellant had no reasonable cause for the alleged grievance. In fact, the Commissioner had adjourned the matter from time to time at the request of the employer-appellant and gave him every opportunity to get his witnesses to give evidence. The proceedings covered a period of over two months from 17-8-1955 to October, 1955. The Commissioner in his order explainedthe circumstances in which the employer-appellant was disallowed further time,
It appears from the records that the employer-appellant cited four witnesses and on 30-9-1955 prayed for examining the doctor alone and declined to examine any other witness. On 20-10-1955 the employer-appellant examined the doctor and he was present in the Court when the doctor's evidence was taken, he was cross-examined and discharged. Thereafter, the employer-appellant wanted to examine himself as a witness but was disallowed inasmuch as he was present in court while his witness was examined and he did not inform accordingly and his examination was objected to by the petitioner's (workman-respondent) as the Commissioner put it on record in his order. This aspect of the case appears from paragraph 3 of the Commissioner's order under appeal.
8. It is clear that the employer-appellant banked on the evidence of the Indoor Doctor witness D, W. 1 alone and not on the other witnesses who were cited: He did not press any point before the Commissioner other than the one that the workman-respondent was under the influence of drink at the time when he met with the accident and relied on Section 3(1)(b)(i) of the Act and it was contended that the employer-appellant was not liable to pay any compensation to the workman-respondent. The workman-respondent's witness Peter Mathews P. W. 2 stated on oath that the workman-respondent was not at all drunk. The employer-appellant's witness Dr. Banerjee (D. W. 1) who examined the workman-respondent on the date of the accident stated that he found smell of liquor coming from the breath of the workman-respondent at the time of examination and according to him this smell of liquor was of brandy.
The doctor, however, in cross-examination admitting that before the workman-respondent was brought to him, he had been treated as an out-door Patient and ordinarily brandy is administered as first-aid in treating such injuries. On such evidence of the doctor in cross-examination, the employer-appellant's plea that the workman-respondent was at the time of the accident under the influence of drink as alleged, failed. It is pertinent to notice here in this context that in the objection filed On behalf of the employer-appellant no case of alleged drunkenness was made. Coming back to evidence. I have to repeat that D. W. 1 was a doctor in the in-door department of the Hospital.
By reference to the In-door Patient Register (Ext. A) and the bed head Ticket (Ext. B) the doctor deposed as to the nature of the injuries suffered by the workman-respondent. As already discussed above, in examination-in-chief, the doctor stated that there was smell of liquor coming from the breath of the workman-respondent when the doctor examined him; and in cross-examination, however, the doctor said that prior to the workman-respondent being admitted as an in-door patient, he was treated as an out-door patient and that in such cases brandy is ordinarily given by the doctor while giving First-aid.
It was at this stage that the employer-appellant realised his difficulty because the doctor's evidence in cross-examination was against him and in fact ran counter to the employer's defence of the workman having been under the influence of drink; and the employer then prayed to the Commissioner for examining the employer himself who was present all along when the doctor was giving evidence. There is no doubt that the employer-appellant should have called the out-door doctor from the very beginning and cited him as a witness when drunkenness was his only defence al-though it was not taken in the objection filed on behalf of the employer-appellant as aforesaid. I am satisfied that the Commissioner gave very reasonable opportunity to the employer-appellant to adduce evidence and in this view of the matter this contention of the employer also fails.
9. As to the quantum of compensation, I am satisfied that the compensation awarded to the workman-respondent was based on sound principle as provided for in Schedule IV to the Act and was reasonable, having regard to the injuries that he suffered resulting in permanent disability to the extent of 60 per cent as found by the Commissioner.
10. The result, therefore, is that both as to maintainability and on merits, the appeal must fail. The order of the Commissioner is therefore upheld. The appeal is dismissed with costs.