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Kunchali Rudrani Vs. Baby - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ306Ker
AppellantKunchali Rudrani
RespondentBaby
Cases ReferredG.R. Sane v. D.S. Sanavane and Co. A.I.R.
Excerpt:
.....the commissioner was in the instant case satisfied on the evidence before him that the respondent-child is the child of the deceased workman. this is so irrespective of whether the deposit is made pursuant to form v notice or the notice on the application under rule 8. if he is satisfied after any enquiry which he may deem necessary that no dependant exists, he shall return the deposit (less funeral expenses) to the employer, otherwise, he shall apportion the same among all or some of the dependants in such proportion as he thinks fit and may, in his discretion allot it to any one of them. the learned chief justice said that though on the evidence the court might well come to the conclusion that the initial onus of proof of non-access had not been discharged, the same was of no..........afforded to the appellant to cross-examine mercy who has categorically sworn that the respondent-child is anirudhan's and her child.8. the commissioner's power to determine the distribution of compensation in respect of a deceased workman is not dependant upon anyone invoking that jurisdiction. under section 1a(i) if he learns of the death of a workman as a result of an accident arising out of and in the course of his employment the commissioner has to issue a notice in form v as prescribed by rule 63 of the kerala workmen's compensation rules, 1958 calling upon the employer to submit a statement in form v as prescribed by rule 64, and in the event of the employer admitting therein his liability to pay compensation, to make the necessary deposit within 30 days of service of the notice.....
Judgment:

George Vadakkel, J.

1. The appellant is the mother of Anirudhan who on 6-3-1978 died of an accident that arose out of and in the course of his employment. The Commissioner for Workmen's Compensation apportioned under Section 8(5) of the Workmen's Compensation Act, 1923 (hereinafter mentioned as the Act) the compensation-amount of Rs, 6,000 deposited by the employer under Section 10A(2) of the Act, between the appellant, and the respondent, an infant now aged 7 allotting to the former Rs. 2,000 and to the latter, Rs. 4,000. The Commissioner found that the respondent-child is the illegitimate daughter born of Anirudhan to its mother, Mercy, a woman married to another one Joseph Peter who is alive. Mercy's claim that she is the widow, of Anirudhan was not accepted by the Commissioner since she failed to establish that her marriage to Joseph Peter does not subsist. The appellant contends that the Commissioner should have applied Section 112 of the Evidence Act, 1872 and found that the respondent-child is the legitimate daughter of Joseph Peter, and on that basis claims the whole of the compensation-amount.

2. Mercy has sworn that Anirudhan married her in the Gandharva form of marriage, that they were residing together as husband and wife for a period of over three years immediately preceding Anirudhan's death in a rented room in Koonayil and that the respondent-child was born to them. She was not cross-examined. Evidence adduced by the appellant shows that Joseph Peter resides in Sasthamkotta village. Mercy also produced before the Commissioner the extract from the Birth Register kept in the Primary Health Centre, Kalakodu, which shows that a female child was born to her on 18-4-1967 at the Primary Health Centre and that that child's father is Anirudhan. The Commissioner believed Mercy and accepted her evidence consisting of her deposition and the extract from the Birth Register to find that the respondent-child is the danghter of Anirudhan. The Commissioner rejected Mercy's claim that she is the widow of Anirudhan since in 1961 she was married to Joseph Peter and it has not been established that, that marriage has been validly terminated wherefore she was not Anirudhan's legally wedded wife.

3. The first question for consideration is whether the Evidence Act, 1872 is applicable to proceedings before the Commissioner for Workmen's Compensation. The Evidence Act, 1872, as seen from Section 1 thereof, 'applies to all judicial proceedings in or before any Court'. Are proceedings before a Commissioner 'judicial proceedings in or before a Court'? Speaking of an Industrial Tribunal Kania, C.J. in Bharat Bank v. Employees of Bharat Bank : (1950)NULLLLJ921SC , said that such a 'Tribunal is discharging functions very near those of a court, although it is not a court in the technical sense of the word'. Mahajan, J., in the same case said (para 27) that Industrial Tribunals 'may rightly be described as quasi-judicial bodies because they are out of the hierarchy of the ordinary judicial system'. Das, J. in Province of Bombay v. Khushaldas : [1950]1SCR621 , said:

If a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie, and in the absense of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act. (Para 173 at pp. 259-260)

Again Gajendragadkar, J. in Engineering Mazdoor Sabha v. Hind Cycles Ltd., Bombay : (1962)IILLJ760SC , pointed out as follows:

The expression 'a Court' in the technical sense is a Tribunal constituted by the State as a part of ordinary hierarchy of courts which are invested with the State's inherent judicial powers. The Tribunal as distinguished from the Court, exercise judicial powers and decides matters brought before it judicially or quasi-judicially, but it does not constitute a Court in the technical sense.

The Commissioner for Workmen's Compensation is outside the ordinary hierarchy of the Courts of the land discharging the State's inherent judicial powers, and is not, therefore, a Court.

4. However, the proceeding before him under Section 8 of the Workmen's Compensation Act, 1923 apportioning the compensation amount in deposit before him among the dependants of the deceased workman to the extent it involves determination of the question as to whether a person claiming to be a dependant, is or is not a dependant is judicial in nature insofar as he is required and empowered to find out who all are the dependants of the deceased workman, though actual allotments and proportion in which allotments are made appear to have been left to be decided by him in his discretion. Under Section 30(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant is appealable if the same involves a substantial question of law. Therefore, we have to proceed in this case on the basis that the decision under appeal involves a judicial element. The Commissioner being not a Court, his decision involving a judicial element is a quasi-judicial act, and the proceeding before him in which such decision is rendered is quasi-judicial proceeding.

5. In view of what is stated above the Evidence Act, 1872 is not attracted to distribution proceedings before the Commissioner. Even so, he cannot decide the matter on no materials. The guide-lines in that regard, namely, as to what rules govern a quasi-judicial authority in making a quasi-judicial decision has been laid down by the Supreme Court in State of Mysore v. S.S. Makapur : (1964)ILLJ24SC , where Venkatarama Aiyar, J. speaking for the Court said:

For a correct appreciation of the position, it is necessary to repeat what has often been said that Tribunals exercising quasi-judicial functions are not Courts and that, therefore, they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity, must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts.

To the same effect is the decision in Engineering Mazdoor Sabha v. Hind Cycles Ltd., Bombay (1963) 1 Supp. S.C.R. 625 at 631, already referred to. There that Court pointed out:

They (the Tribunals) can compel witnesses to appear, they can administer oath, they are required to follow certain rules of procedure; the proceedings before them are required to comply with rules of natural justice, they may not be bound by the strict and technical rules of evidence, but, nevertheless, they must decide on evidence adduced before them; they may not be bound by other technical rules of law, but their decisions must, nevertheless, be consistent with the general principles of law. In other words, they have to act judicially and reach their decisions in an objective manner and they cannot proceed purely administratively or base their conclusions on subjective tests or inclinations.

6. The submission on behalf of the appellant is that no one has in so many words stated that Mercy and Joseph Peter had no access to each other at the time the respondent-child was conceived by her and, therefore, the Commissioner went wrong in not presuming that the respondent-child is the legitimate child of Joseph Peter. Non-access may be proved by any form of legal evidence and the presumption of legitimacy expressed in the maxim: Pater est Quern nuptioe demonstrant (He is the father whom the marriage indicates) can be 'encountered by such evidence as proves to the satisfaction of those who are to decide the question, that such sexual intercourse (between the husband and the wife) did not take place at any time, when, by such intercourse, the husband could, according to the laws of nature, be the father of such child' as stated by the House of Lords in the Banbury Peerage case [1881] Sim. and St. 150 (as quoted in Woodrofee and Ameer Ali's Law of Evidence, 13th Edition, 1974 Vol. III page 2521). The presumption of legitimacy of a child born during wedlock is founded on another presumption, namely, the presumption of access of each spouse to the other. A child born during wedlock is presumed to be the legitimate child of the husband because sexual intercourse is presumed to have taken place between the husband and the wife who is the mother of the child. This presumption of access can be rebutted by proof of non-access at the material time, i.e., when the child could have been conceived, by any form of legal evidence, direct or circumstantial, sufficient to satisfy the deciding authority that there could have been no access for either of the parties to the marriage to the other. If non-access is not proved wherefore access is presumed, no enquiry will be permitted as to whether the husband or some one else is the father of the child in question, and in such cases presumption of legitimacy is conclusive. The decision in Bhagavathi v. Aiyappan A.I.R. 1953 T.C. 470, is a fine illustration of this rule. There two brothers treated the legally wedded wife of one of them as their common wife, and he who was not her husband even admitted her children to be his. Yet the Court said:

So long as Aiyappan Pillai and Parvathy Amma remained as husband and wife and united in lawful wedlock, the children born during that period could be treated as the children of Aiyappan Pillai and not of anyone else. Being, so it is not possible to hold that defendants 1 and 2 are the children of Padmanabha Pillai though the latter had in more documents than one described them as his children.

7. The Commissioner was in the instant case satisfied on the evidence before him that the respondent-child is the child of the deceased workman. The Commissioner did not pointedly advert to the question of access nor did he enter a specific finding thereon but then, as an authority exercising quasi-judicial functions he is not bound by the procedure prescribed for trial of suits nor by the strick rules of evidence or of onus of proof. Fair opportunity was afforded to the appellant to cross-examine Mercy who has categorically sworn that the respondent-child is Anirudhan's and her child.

8. The Commissioner's power to determine the distribution of compensation in respect of a deceased workman is not dependant upon anyone invoking that jurisdiction. Under Section 1A(i) if he learns of the death of a workman as a result of an accident arising out of and in the course of his employment the Commissioner has to issue a notice in Form V as prescribed by Rule 63 of the Kerala Workmen's Compensation Rules, 1958 calling upon the employer to submit a statement in Form V as prescribed by Rule 64, and in the event of the employer admitting therein his liability to pay compensation, to make the necessary deposit within 30 days of service of the notice on the employer. No doubt by invoking Rule 8 and applying thereunder, a dependant can seek for an order directing the employer to make the deposit. What is material is, if the employer makes the deposit the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit calling upon the dependants to appear before him for determining the distribution of compensation. This is so irrespective of whether the deposit is made pursuant to Form V notice or the notice on the application under Rule 8. If he is satisfied after any enquiry which he may deem necessary that no dependant exists, he shall return the deposit (less funeral expenses) to the employer, Otherwise, he shall apportion the same among all or some of the dependants in such proportion as he thinks fit and may, in his discretion allot it to any one of them. If the employer disputes his liability the Commissioner shall determine the same following the procedure prescribed for disposal of cases under the Act, but this procedure has no application, after the employer makes the deposit. Note also that the employer is discharged of his liability under the Act once he deposits the compensation. This is the scheme of distribution proceeding as revealed by Sections 8, 10A and Rule 8. This means that the determination of the inter se dispute amongst the several persons who claim to be the dependants as regards the distribution of the compensation amount in deposit and of the ancillary question as to who all are the deceased workman's dependants, is to be in accordance with such procedure as the Commissioner himself decides upon in his unfettered discretion, but, of course, subject to the observance of rules of natural justice.

9. There is no case of personal bias or mala fides on the part of the Commissioner, in the case on hand. In such cases, the rules of natural justice required to be followed by the deciding authority are two in number, as stated by Diplock, L.J. in Regina v. Deputy Industrial Injuries Commissioner Ex parte Moore [1965] II W.L.R. 89 and they are:

First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he most fairly listen to the contentions, of all persons who are entitled to be represented at the hearing.

The learned Lord Justice further pointed out:

The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some of future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its. own view for his. (pages 116 and 117).

10. We are not prepared to say that on the evidence relied on by the Commissioner it is not possible to come to the conclusion that the respondent-child is the child of deceased Anirudhan. Sufficiency and quantum of evidence are not substantial questions of law so as to attract the appellate jurisdiction of this Court under Section 30 of the Act.

11. The decision in G.R. Sane v. D.S. Sanavane and Co. A.I.R. 1946 Bom. 110 relied on behalf of the appellant is not of any assistance to her. Certain observations of Stone, C.J. in that case seem to support the contention that Section 112 of the Evidence Act, 1872, will, in terms, govern distribution proceedings before the Commissioner for Workmen's Compensation. For reasons already stated with respect, we are not able to subscribe to that view. It appears to us that these observations are in the nature of obiter dicta. In that case the deceased workman was living in adulterous intercourse with the wife of another, as in this case. The question arose as to whether her two children are the illegitimate children of the deceased workman as found by the Commissioner. The appeal by the employer who invoking Section 112 of the Evidence Act, 1872, impugned the finding of the Commissioner that the said children are the illegimate children of the deceased workman was dismissed by both Stone, C.J. and Divatia, J. The learned Chief Justice said that though on the evidence the Court might well come to the conclusion that the initial onus of proof of non-access had not been discharged, the same was of no consequence, as there was some evidence of non-access, shadowy though it might be, and the quantum of evidence necessary to discharge the onus of proof was not a substantial question of law. Divatia, J. said that in view of the definition of the word 'dependant' as meaning among others, a minor illegitimate son and an unmarried illegitimate daughter it cannot be said that an illegitimate child even though born of adulterous intercourse is not a dependant of the deceased workman if it appears from the evidence that it was supported by him.

12. We dismiss this appeal with costs.


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