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Indian Iron and Steel Co. Ltd. Vs. Shish Ram - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1979)IILLJ94Cal
AppellantIndian Iron and Steel Co. Ltd.
RespondentShish Ram
Cases ReferredIn Sitaram v. M.N. Nagrashana
Excerpt:
- .....or impliedly barred. the code under section 5 recognises courts under special laws which are not civil courts having jurisdiction under the code though in matters of procedure, the provisions of the code may be made applicable to such courts. sub-section (2) of section 19 of the workmen's compensation act, 1923, provides:19. reference to commissioners.-(1) if any question arises in any proceedings under this act as to the liability of any person to pay compensation (including any question as to whether a person injured is or not a workman) or as to the amount of duration or compensation (including any question as to the nature or extent of disablement), the question shall in default of agreement, be settled by a commissioner.(2) no civil court shall have jurisdiction to settle, decide.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule is directed against the order dated Nov. 11, 1975 passed by the learned Commissioner for Workmen's Compensation. West Bengal, allowing an application or restoration of Claim Case No. 5704 of 1966 before him which was dismissed earlier for default. On September 30, 1966, the opposite party workman filed an application before the Commissioner of Workmen's Compensation, West Bengal claiming a lump sum compensation for Rs. 2,940 on account of personal injury by accident on October 27, 1965 arising out of and in course of his employment under the petitioner-company, giving rise to Claim Case No. 5704 of 1966. The claim was contested by the company and came up for hearing as a contested case before the learned Commissioner on the fixed date of August 17, 1972, but as the workman was absent, the case was dismissed for default on the same date.

2. On May 12, 1975 the workman filed an application for restoration of the case stating that due to his sudden illness he could not attend the Court nor inform his lawyer on the day fixed for hearing. No explanation, bow-ever, was forthcoming for the delay in making the application. The application was contested by the company.

3. The learned Commissioner relied on the decision in Harbhajan Singh v. Bishu Roy (1963) Cal. L.J. 192, in which it was observed that there was no specific provision in the Workmen's Compensation Act, 1923 and its rules for limitation in respect of applications for setting aside an ex parte order. Even if the Limitation Act, 1908 applied, in absence of specific provision for setting aside ex parte order Article 181, (Article 164 not applicable being confined to decree), providing three years' limitation would be applicable for applications under Order 9, Rule 13 of the C.P.C. read with Rule 41 of the Workmen's Compensation Rules, 1924. Rule 41 is as follows:

41. Certain provisions of C.P.C. 1908 to apply-Save as otherwise expressly provided in the Act or these rules the following provisions of the First Sch. to the C.P.C. 1908, namely, those contained in Order V. Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI Rules 2 to 21; Order XVII and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto,

Provided that-

(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;

(b) the Commissioner may for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interests of the parties will not thereby be prejudiced.

It could possibly be said that the Rule suffers from wide or unbridled delegation though such consideration is not material for our purpose. The learned Commissioner accordingly held that the application was not barred by limitation. On merits the Commissioner accepted the workman's case and allowed the application by the impugned order setting aside the ex parte order of dismissal of the claim case, which was restored to file. The rule as already stated is directed against this order.

4. The only point in controversy is whether the application is barred by limitation and it will be so only if the Limitation Act, 1963 applies to proceedings before the Commissioner of Workmen's Compensation Act, 1923. In Kerala State Electricity Board v. T.P. Kunhaliumma : [1977]1SCR996 the Court came to the conclusion that Article 137 of the Limitation Act, 1963 applies to any petition or application filed under any Act to a civil Court and is not confined to applications by or under the C.P.C. We have now to examine if the Commissioner of Workmen's Compensation is a Court as contemplated in law in absence of any definition in the Limitation Act, 1963 for the Limitation Act would be applicable only if the Commissioner was a civil Court.

5. Under the C.P.C. the Courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The Code under Section 5 recognises courts under special laws which are not civil Courts having jurisdiction under the Code though in matters of procedure, the provisions of the Code may be made applicable to such courts. Sub-section (2) of Section 19 of the Workmen's Compensation Act, 1923, provides:

19. Reference to Commissioners.-(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or not a workman) or as to the amount of duration or compensation (including any question as to the nature or extent of disablement), the question shall in default of agreement, be settled by a Commissioner.

(2) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.

We have already quoted Rule 41 whereby some provisions of the Code have been made applicable to proceedings before the Commissioners.

6. We shall now examine the authorities cited at the bar by Mr. Das as well as Mr. Banerjee to determine the requisites that make a tribunal or authority a Court as understood in legal parlance. In Allen Bros. & Co. v. Bando & Co. A.I.R. 1923 Cal. 169. Rankin, J. (as his Lordship then was) observed:

In my opinion, the controller, in discharging his duty under Section 15 and the President of the Tribunal in discharging his duties under Section 18 (under Calcutta Rent Act, 1920) act as Courts of justice. Whether they are civil Courts within the meaning of any particular enactment is another question, but they are both civil Courts in the general sense; they are authorised to decide judicially and by judicial method only between persons seeking their civil rights. Such functions as they perform are neither administrative nor ministerial. It is writ large both over the Act and the Rules that the procedure to be followed is the general procedure of a Court of law.

7. In Salamat v. Agent, East Indian Railway A.I.R. 1938 (Cal. 348, the Court observed that the Limitation Act, 1908 does not. apply to proceedings under the Workmen's Compensation Act. It was further held relying on the decision in Lingley v. Firth &. Sons [1921] 1 K.B. 655, that once the workman had for sufficient cause, not brought his proceedings within six months, there is nothing in the said Act or in any other statute to prevent him bringing his proceedings at any time.

8. In Mt. Dirji v. Smt. Goalin A.I.R. 1941 Pat. 65 (FB), it was held that to be a court the person or persons who may be said to constitute it must be entrusted with judicial functions. 'Judicial functions' means the function of 'deciding litigated questions according to law' deciding them not arbitrarily but on evidence and according to rules of procedure which ensure that the person, who is called upon to decide them, acts with fairness and impartiality. Further the Court must not only be charged with judicial functions but must also be invested with judicial powers by sanction of law and not merely by voluntary submission to such jurisdiction. The Courts are created only by the authority of the sovereign power as the fountain of justice, such authority being exercised by statute or orders and the like. The Commissioner of Workmen's Compensation has been conferred with powers of the civil Court whereby he can take evidence on oath, enforce attendance of witnesses, compel production of documents, record a brief memorandum of substance of evidence award costs and enforce his judgment by recovery of any amount payable under his order as an arrear of land revenue.

9. With reference to the contention that the Commissioner is a persona designata and not a court, the court observed that in legal phraseology, persona designata means a person indicated in a statute not by name but by official designation. If he is invested with powers as of a Court, the jurisdiction of the Court is enlarged and its decision is subject to all the incidents of such jurisdiction. If however the powers are conferred on him not as a Court, he is mere persona designata and his decision will not be subject to the incidents of such jurisdiction as the Court ordinarily exercises. There is, it was observed, no real antithesis between the expression 'persona designata' and 'court', in other words even a persona designata may be a court and whether he is a Court or not depends upon his powers and functions which he has to discharge. The court noted the position of the Commissioner as an independent tribunal with functions to judge and decide, proceeding judicially, thus satisfying the main tests of a tribunal being a Court. The provisions conferring the powers of the civil Court under the C.P.C. on the Commissioner in respect of certain matters may have been made ex abundanti cautela or to avoid the necessity of incorporating in the Act large number of provisions of the Code or the framers of the Act wanted to emphasise that the Commissioner shall be regarded as a civil Court, on a consideration of the relevant aspects, the Full Bench decided that the Commissioner of Workmen's Compensation is a Court.

10. We shall now consider certain decisions of the Supreme Court with particular reference to Article 136 of the Constitution. In Bharat Bank Ltd. v. Its Employees : (1950)NULLLLJ921SC , Mahajan, J. (as his Lordship then was) observed that the intention of the Constitution by use of the word 'Tribunal' in the article seems to have been to include within the scope of Article 136 Tribunals adorned with similar trappings as Court but not coming within that definition. Further it was also observed that before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State. His Lordship quoted with approval the observations in English decisions stating that the words 'judicial power' mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, as between itself and its subjects, whether the rights, relate to life, liberty or property with power to give a binding and authoritative decision. A true judicial decision presupposes an existing dispute between two persons and involves (i) a presentation of their case by the parties to the dispute, (ii) if the dispute is a question of fact, ascertainment of the fact by means of evidence and assistance of argument therein; (iii) if the dispute is a question of law submission of legal argument by the parties (iv) decision disposing the whole matter by finding upon the facts in dispute and application of law with a ruling where required upon any disputed question of law. These criteria for a judicial tribunal were laid down in Cooper v. Wilson [1937] 2 K.B. 309 (340) and were adopted by the Supreme Court in successive decisions. In addition as was pointed out by the Supreme Court in Brajanandan Sinha v. Jyoti Narain : 1956CriLJ156 that (at. p. 70)-.in order to constitute a court in the strict sense of the term an essential condition is that the court should have apart from haying some of the trappings of a judicial tribunal power to give a decision or definitive judgment which has the finality and authoritativeness which are the essential tests of a judicial pronouncement.

11. The Court in considering what is a court under the Contempt of Courts Act, 1952 relied on the tests indicated above.

12. In Mohanlal v. Fine Knitting Mills Co. Ltd. A.I.R. 1960 Bom. 387, it was held following the above as also other decisions that the Commissioner of Workmen's Compensation was a Court subordinate to the High Court. In Engineering Mazdoor Sabha v. Hind Cycles Ltd. : (1962)IILLJ760SC , it was held that the basic and essential condition which makes an authority or a body a tribunal under Article 136 is that it should be constituted by the State and should be invested with the State's inherent judicial power. The Court further observed that Article 136(1) refers to a Tribunal in contradistinction to a Court which in technical sense is a Tribunal constituted by the State as a part of ordinary hierarchy of courts which are invested with State's inherent judicial powers. The opinion of the Supreme Court in regard to the expression 'court' has thus direct reference to Article 136(1) where the expression 'tribunal' is used in contradistinction to 'Court' and the proposition cannot be extended in any opinion beyond the interpretation of the said Article.

13. In the decision of A.C. Companies Ltd. v. P.N. Sharma : (1965)ILLJ433SC , the Court was also considering the expression 'Court' in Article 136(1) of the Constitution. The said Article provides for special leave to appeal to the Supreme Court to be granted by the Supreme Court itself from any judgment or other in any cause or matter made by any Court or Tribunal in the territory of India. In this context where a tribunal is referred to as distinguished from court, the Supreme Court observed Court denotes a Tribunal constituted by the State as a part of the ordinary hierarchy of Courts. Though both Tribunals and Courts discharge judicial functions and judicial powers and have common features, Tribunals under Article 136(1) occupy special position as special matters and questions are entrusted to them for their decision.

14. The Supreme Court in Thakur Jugal Kishore v. Sitamarhi Central Co-operative Bank Ltd. : 1967CriLJ1380a , considered the concept of 'Court' apart from Article 136. It was found inter alia that the Registrar was given in many respects same powers as are given to ordinary civil Courts of the land by the C.P.C. It was accordingly held that the Registrar of Co-operative Societies under Bihar & Orissa Co-operative Societies Act, 1935 was to all intents and purposes, a Court discharging the same functions and duties in the same manner as a Court of law is expected to do. In Ram Sarup v. Gurdev Singh (1969) L.I.C. 371 (Punj), it was held that a Commissioner under the Workmen's Compensation Act is not a 'civil Court within the meaning of Section 110F of the Motor Vehicles Act.' A Civil Court is the court of general civil jurisdiction. In the absence of any statutory bar, all civil cases have to be tried by civil Courts but such jurisdiction has been taken away in respect of all claims for compensation to be adjudicated by the tribunal under the Act. The Commissioner Under the Compensation Act, it was held, is a mere tribunal and special court and is not an ordinary civil Court within the meaning of Section 110F of the Motor Vehicles Act, 1939.

15. A Bench decision in Rajiyabi v. Mackinon Machinazie and Co. Pvt. Ltd. : AIR1970Bom278 , held considering the several decisions that the Commissioner of Workmen's Compensation is a Court and his decision is a judgment and not an award. A contrary view was taken in Yeshwant Rao v. Sampat A.I.R. 1979 Madh.Pra. 21 : (1979) L.I.C. 176 (FB), wherein it was observed that the word 'Court' used in generic sense will include a tribunal. Features of a court and a tribunal are very similar, both are vested with judicial powers of the State, both are empowered to give binding decisions, approach of both are also similar. The procedure of Court however is regularly prescribed whereas the procedure of a Tribunal may not be strictly prescribed. While a Court is a tribunal constituted by the State as a part of the ordinary hierarchy of court a tribunal is constituted under a special Act to exercise some special jurisdiction. This decision, however, follows the decisions in A.C. Companies case as also the case of Engineering Mazdoor Sabha cited above. The Supreme Court was considering in those cases the interpretation of the word 'Tribunal' in contradistinction to 'Court' in Article 136(1) when the expression 'Court' was held as confined to be part of the normal hierarchy of civil Courts. Even Section 5 of the C.P.C. recognises revenue courts as courts of special jurisdiction created by State which are outside the ordinary hierarchy of civil Courts having original jurisdiction under the Code to try civil suits and proceedings. We have seen that the civil Courts are barred from trying claims under the Workmen's Compensation Act. It appears to me that concept of civil Court given in the two decisions are confined to Article 136(1) and the same should not be carried beyond the said Article. The subsequent decision in the Co-operative Societies case laid down the concept of ' Court' in ordinary law, consistent with the decision in Brajananda's case cited above.

16. On the basis of the judicial decisions it appears that a tribunal or authority shall be a Court if the following conditions in effect are present; (i) the source of power of the tribunal or authority is the State as the fountain of justice and it is charged with and exercises the inherent judicial powers of the State (ii) the jurisdiction to adjudicate the lis between contending parties involving their rights is conferred on it by law and does not depend on any voluntary act or submission of parties (iii) the right to move the tribunal or authority is conferred on the aggrieved party by law,' (iv) the proceeding on the lis commences by presentation of the case by the aggrieved party with a corresponding right on the other party to meet the case (v) in adjudicating the dispute the tribunal or authority follows established or prescribed procedure (vi) if the dispute is on question of fact the opportunity to parties is given to adduce evidence and the facts are to be ascertained through evidence supplemented by argument (vii) if the dispute is on questions of law, there will be submission of argument on such questions of law by the parties before such tribunal or authority (viii) the tribunal or authority in arriving at its decision acts judicially and according to law following the principles of natural justice and fair play and not on any other consideration of policy or expediency (ix) decision wholly disposing the matter by finding upon the facts in dispute upon application of law with ruling on any disputed question of law if required (x) finality (subject to appeal if provided) and authoritative-ness of decisions as binding on parties (xi) enforceability of the decisions by the tribunal or authority through process of law.

17. All the above conditions or tests are present in respect of the proceedings before the Commissioner for Workmen's Compensation. He exercises the judicial power by virtue of a Statute and has been thereby conferred with the special jurisdiction to decide a Us raised by an aggrieved party. He substantially follows the procedure laid down in the Code of Civil Procedure as required allowing the other party to submit his case and also ensures as required production and acceptance of evidence of parties in accordance with the laws of procedure. He adjudicates judicially in accordance with law and the principles of natural justice on facts on evidence, applying the law as may be applicable to such facts and giving a ruling on any point of law if necessary. He pronounces judgment finally disposing the matter and such judgment has the authoritative-ness as binding on the parties subject to appeal to the High Court. His judgment is again enforceable by process of law. In the circumstances it appears obvious that the Commissioner of Workmen's Compensation in law is a Court.

18. The Limitation Act, 1963 as we have seen, applies to all applications to courts under any Act. So that the provisions of the Limitations Act will govern the proceedings except that where the special law prescribes a different period of limitation Section 3 shall apply as if such period were the period prescribed in the schedule, and in such case provisions of Sections 4 to 24 inclusive will be applicable. Section 22 of the Compensation Act provides for filing applications before the Commissioner for determination of the issues involved relating to compensation for injury arising out of and in course of his employment. The time limit for preferring a claim before the Commissioner under Section 10(1) is two years from the date of occurrence of the accident or the death as the case may be subject to condonation for sufficient cause. The mode of filing the claim as we have seen is by application in statutory form though in substance it is a plaint as contemplated in the Code.

19. The word 'suit' has not been defined in the Code of Civil Procedure but in legal parlance it means any legal proceeding of a civil kind brought by one person against another. Under the Code a suit is instituted when the plaint which is nothing other than a statement of the claim on recital of the cause of action presented in a Court. In the case of a claim for Workmen's Compensation before the Commissioner, the claim has also to be presented before him. The form of lodging the claim instead of being by a plaint, is to be made by an application in statutory form. Since the proceeding commences on the lodging of the claim it has little difference with a plaint and it is not merely an application in a proceeding but an original claim required by laws of procedure to be filed by way of an application. Such proceeding arising out of a claim application has no difference from a suit in legal phraseology.

20. The Limitation Act does not also define a suit, except stating that it does not include an application or an appeal and application here does not include what is in substance a plaint of a claim under the Compensation Act. In Section 3(2), (a) it is said that a suit is instituted, in an ordinary case when the plaint is presented to the proper officer. In case of Workmen's Compensation, the institution of the case will be on the date when the claim application is filed before the Commissioner. The word suit since the Limitation Act applies to all claims and applications to court under any Act. must be given a wider meaning, so as to include a claim, in whatever form it is presented to Court either by plaint or otherwise, whereon a proceeding before the Court commences as was held in Hayatkhan v. Mangilai A.I.R. 1971 Madh. Pra. 140, in respect of the Motor Vehicles Act. Accordingly on the application in the statutory form being filed, the suit on the claim is to be deemed to be instituted by the aggrieved party.

21. This case, which is to be deemed a suit under the Limitation Act, 1963 was dismissed for default as we have seen. The application for its restoration was to be filed under Article 122 within thirty days from the date of dismissal and in view of the specific provision Article 137 as the residuary article was not applicable to it. The application was filed long after two years, and as such it was prima facie barred by limitation. In Salamat v. Agent, E.I. Rly. A.I.R. 1938 Cal. 348, it was held that once the workman has explained the reason for not filing an original claim application within the prescribed time, he was not required to explain the further delay if any in making the application beyond the statutory period. In Sitaram v. M.N. Nagrashana : (1960)ILLJ29SC , the Supreme Court overruling the above decision held that the party has to satisfy the Court that he had sufficient cause for not making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay. The workman in this case has not stated anything to explain the delay in making the application (under) Order 9 Rule 13 of the Code for its acceptance after condoning the delay under Section 5 of the Limitation Act. I accordingly propose to give the workman an opportunity to explain the delay he made in making the application under Order IX Rule 13 of the Code.

22. The Rule thus succeeds and is made absolute. The impugned order is set aside, without any order as to costs in the circumstances. The records are sent back to the learned Commissioner who will afford an opportunity to the workman to explain the delay by a supplementary affidavit in making the application for restoration, which if filed will be considered in accordance with law after affording like opportunity in rebuttal to the company. If the workman fails to take any steps as indicated above within such time as may be granted by the learned Commissioner, his application for restoration will be dismissed.


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