1. On the 13th of August, 1933, the appellant met with a serious accident in the respondents' mill, his leg being fractured by the falling of a beam on it. The employers (the respondents) assured him that they would look after him, pay his expenses while he was in the hospital, maintain him, re-employ him when he was discharged from the hospital, and see that he was looked after for the rest of his life. On the strength of this assurance he was persuaded to file a leave application, in which he said falsely that he fell into a channel and so wanted some leave. After his discharge from the hospital some time in November, he was re-entertained. On 1st March, 1934, he was dismissed from service, apparently because he was not able on account of his injury to perform his duties properly. Lawyer's notices were sent to the employers, who denied that the mill was open on the day of the accident and asserted that the appellant had been on leave. As no satisfactory reply was forthcoming, an application was made before the Labour Commissioner on 27th March, 1934. Although this was beyond six months from the date of the accident, the application was entertained and treated as a claim for compensation, and some enquiry seems to have been made. On 23rd April, 1934, the Commissioner asked the appellant to furnish certain particulars and to furnish a medical certificate. Before that date, the Inspector of Factories, to whom the application for compensation was referred, received a letter from the respondents asserting that the day on which the accident was alleged to have taken place was a Sunday and that the mill was not open on that day. They also referred to the leave application of the appellant in support of their contention. On 12th May, 1934, the Commissioner passed an order which seems to me very discreditable. Instead of dealing with the application on its merits after having apparently condoned the delay in filing the application, he dismissed the application on the technical ground that it was barred by time under Section 10 (1) of the Workmen's Compensation Act. Although the unfortunate appellant had engaged lawyers in connection with this matter with regard to sending notices and so on, he was not advised to take this matter to the High Court, under Section 30 of the Act. Instead, he filed the present suit on 1st August, 1934, before the District Munsif, Tinne-velly, for compensation and for damages for negligence. That suit has been dismissed on the ground that it is barred by Section 3 (5) of the Workmen's Compensation Act and that decision was confirmed on appeal by the Subordinate Judge.
2. It is first contended that if the letter to the Commissioner was an application for compensation, it was not barred by time under Section 10 (1). Section 10 (1) reads:
No proceedings for the recovery of compensation shall be maintainable before a Commissioner unless notice of the accident has been given, in the manner hereinafter provided as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been instituted within six months of the occurrence of the accident....
3. There are certain provisos to this section which enable the Commissioner to dispense with some of these limitations. It is contended that the 'claim for compensation' referred to in Section 10 (1) means a claim made of the employers and not a formal claim made before the Commissioner. The section speaks of a claim being instituted. 'Instituted' implies the formal making of a claim before some tribunal and is not the same as making a claim of the employer. Moreover, the words 'claim' and 'instituted' are referred to not only in Section 10 (1). Even the third proviso to Section 10 (1), gives a clear indication of the meaning of the word 'claim' for it runs:
Provided further that the Commissioner may admit and decide any claim to compensation in any case notwithstanding that the notice has not been given or the claim has not been instituted in due time as provided in this Sub-section (1)....
4. The word 'claim' must have the same meaning throughout and must be the claim made to the Commissioner. In Section 3 (5) (a) it is clear that the instituting of the claim for compensation is before the Commissioner, and it is difficult to believe that the instituting of the claim referred to in Section 3 (5) (a) is not the same instituting of the claim as is referred to in Section 10 (1). Section 22, which deals with the procedure to be adopted during the enquiry of the claim, refers to the 'claim', and the 'claim' there clearly relates to a claim made before the Commissioner. This was also the view of two learned Judges of the Patna High Court in Abdul Matin v. Bidesi Rajwar I.L.R. (1938)Pat. 658. There is, however, a decision of the Calcutta High Court to the contrary in Abdul Karim v. Eastern Bengal Railway I.L.R. (1934)Cal. 508. The reasons given by the learned Judges were: (1) the Indian Legislature intended to follow the English Act and (2) the wording of Section 22, to which I have referred. With regard to the first point, with great deference to the learned Judges, it seems to me very unsafe to presume that the Indian Legislature knew and intended to adopt the interpretation put by the English Courts upon the corresponding English Act. I should have thought that there was little reason to suppose that the Indian Legislature had studied the corresponding English Act and wished to adopt it. No doubt a drafter may closely follow an English original, but I do not think there is any reason for assuming that the Legislature had a similar desire. Moreover, the Indian Act departs in many respects from the English Act and the Legislature has substituted for the word 'make' in the English Act the word 'instituted', which has a very much more formal meaning and suggests the making of a claim before some tribunal. It has been pointed out by the learned Advocate for the respondents that the Legislature has now amended the wording of Section 22 (1) because the Calcutta High Court had given to the section a meaning not intended by the Legislature.
5. The second reason given by the Calcutta High Court, to use the words of the learned Chief Justice in Abdul Karim v. Eastern Bengal Railway I.L.R.(1934)Cal. 508 is this:
Section 22 relates to the initiation of proceedings before a Commissioner and refers to an 'application for the settlement of any matter by a Commissioner' and prescribes certain particulars which are to be contained in the application, and among them, 'in the case of a claim for compensation against an employer' certain details are to be given. I should find it difficult to hold that the words at the head of the section, 'an application for the settlement of any matter by a Commissioner' and the reference to a 'claim to compensation against an employer' both refer to exactly the same thing, namely, that by which proceedings are initiated before the Commissioner.
6. This is no doubt a weighty argument, but the learned Advocate for the respondents points out that Section 22 does not deal only with claims for compensation. This is indicated by the fact that in Section 22 (2) (b) special reference is made to the form of application where it amounts to a claim for compensation against an employer, certain particulars being required in addition to those to be furnished in other applications for the settlement of any matter by a Commissioner.
7. This question does not however directly arise for decision here because, unfortunately for the appellant, he did not carry the matter to the High Court and contend that the order of the Commissioner was wrong. Whether the decision of the Commissioner was right or not, that decision is now final, and the only question here is whether a claim has been filed at all. It is argued that Ex. L, which is the claim on which the Commissioner acted, is a very loosely worded document and does not contain by any means all the particulars that are required by Section 22 : nor does it contain the certificate referred to in Rule 19 (2) of the Rules framed under the Act. A form (form F) under Rule 19 has been prescribed, but this form the Commissioner, if he thinks fit, may get the applicant to fill up and sign after the claim is made. It is no doubt true that several of the particulars required by Section 22 are not to be found in Ex. L, the claim; but there can be no doubt, reading Ex. L as a whole, that it was intended to be a claim for compensation. It could not have been the intention of the Legislature that a claim could not be entertained or enquired into, or that no compensation should be granted, unless the application were in strict form. If those particulars and that certificate were necessary, the Commissioner could have obtained them; but he did not in fact do so, presumably because he did not think them necessary. In paragraph 4 of Ex. L, the appellant says:
The Mill agent has, the petitioner now understands, got such a letter (referring to the leave application) signed by the petitioner in order to-avoid the penalties for negligence giving rise to injuries to the petitioner in the course of employment and to escape giving compensation to the petitioner.
8. The appellant at the end of his petition does not directly ask for compensation, but prays that the Commissioner will be pleased 'to enquire into the matter and render justice'. This is the conventional ending of a petition, but the petitioner added:
N.B.--It is prayed that notice of the date of enquiry be given to the petitioner.
9. He seems to have had in view the enquiry that is to take place in an ordinary claim for compensation. The application was treated as a claim for compensation by the Commissioner. It was admitted and the Commissioner made enquiries, called for particulars from the appellant in connection with his claim for compensation; and the appellant furnished those particulars. It is impossible to construe Ex. L as anything but an application for a claim for compensation. If Ex. L was a claim for compensation before the Commissioner, then it is clear that the suit is barred by Section 3 (5) of the Act.
10. It has been contended that a claim that has been rejected in limine would not be a claim instituted before the Commissioner within the meaning of Section 3(5) (a). The wording of Section 10 (1):
No proceedings for the recovery of compensation shall be maintainable before a Commissioner...unless the claim for compensation with respect to such accident has been instituted within six months of the occurrence of the accident....
is referred to in support of that argument. The whole of Section 10 (1) however indicates that the claim for compensation is of the nature of a plaint without which no proceedings for the recovery of compensation are maintainable: so that the words relied on only mean that unless there is a formal claim for compensation, the Commissioner cannot make any enquiries or conduct any proceedings. In the present case, proceedings did however take place and the claim for compensation was instituted and was admitted by the Commissioner. Section 3 (5) (a) therefore clearly applies, and the lower Courts were right in holding that the suit was barred.
11. The appellant has suffered very greatly at the hands of the Labour Commissioner, who should have dealt with his application in accordance with the spirit as well as the letter of the Act. Although this question has not been argued, it seems to me that the Commissioner acted illegally in rejecting the application after condoning the delay, without giving any decision on the merits of the application. The appellant was deceived by the respondents, who lulled him into a sense of security by promising to give him employment and to look after him, which security led him to prefer his claim before the Commissioner out of time. This behaviour of the respondents was disgraceful. Nothing can be done for the appellant in this appeal; but the respondents have represented through their learned advocate that they do not wish to take advantage of the dismissal of this appeal by refusing relief to the appellant. They promise to give compensation to him and I hope, for the sake of their reputation as employers, that they will do so. The respondents do not press for their costs. The appeal is dismissed without any order as to costs. The appellant will have to pay the Court-fee due to Government.