Hon'ble Abhai Kumar,J.
Despite time being granted no objections have been filed to the application filed under Section 5 of the Limitation Act.
Delay of 419 days in filing the present appeal has been explained to the satisfaction of the Court.
Delay is condoned.
Appeal is treated to be within time.
Office to allot regular number of the appeal.
Counsel for the parties agreed that the present appeal may be disposed of at this stage itself, specifically in view of the order proposed to be passed today by the Court. As also in view of the fact that the appeal is to be decided on a pure legal issue.
Facts in short leading to the appeal are as follows:-
Ajay Singh the appellant before us claims that he was employed as press operator with M/s Paradise Packers, Baba Laldas Road, Gandhi Colony, Saharanpur, for last more than five years, prior to the alleged accident. It was his case that on 10.06.2009 during the course of his employment, when he was cleaning the press machine in the factory premises of the respondent employer, one co-worker namely Sunil Kumar pressed the on button of the machine, as a result whereof his thumb was cut and his left hand figures were broken.
The appellant after medical treatment requested the employer for payment of compensation and on failure to receive the same he instated Workman Compensation Act Case No. 5 of 2010 claiming a compensation of Rs.5,37,600/- alongwith interest.
The claim was contested by the owner of the factory and among other it was submitted that Ajay Singh was not in their employment.
Evidences was lead by the parties in support of their respective cases. The Workman Compensation Commissioner, cum Deputy Labour Commissioner, Saharanpur, vide award dated 23.03.2012, held that the claimant was in employment of the respondent and that he had suffered injuries during the course of employment, for which he was entitled to a compensation of Rs.4,07,836/-. This award was made on 19.05.2012 and was also published.
On 29.05.2012 a review application was filed on behalf of the employer, which application came to be allowed by means of the order dated 20.07.2012. It is against this order dated 20.07.2012 that the present appeal under Section 13 of the Employs Compensation Act has been filed.
The basic ground pressed before us is that under the provision of the Employs Workman Compensation Act, no power of review has been conferred upon the Employees Compensation Commissioner, and therefore, the order is wholly without jurisdiction. It is explained that an award could have been recalled by the Employees Workman Compensation Commissioner, only if, it was proved that the award had been obtained by fraud or that the applicant had not been afforded an opportunity to contest the matter. Such power of recall is inherent in every adjudicating authority, for the said limited purpose only.
Sri Shri Prakesh Singh, learned counsel for the employer submits that there was an error in the reading of the evidence, specifically the attendance register filed by the employee, before Employes Workman Compensation Commissioner while making the award dated 23.03.2012, and therefore, the review application has rightly been entertained. Substantial justice has been done between the parties, and therefore, this Court may not interfere .
For the purposes of appreciating the controversy raised on behalf of the parties, we have carefully gone through the provision of Workman Compensation Act, 1923, now titled as the Employees Compensation Act, 1923 (hereinafter referred as Act 1923).
Section 3 of the Act provides for employers liability for compensation, in the case of injury, to the employee by accident, caused in the course of employment.
Section 4 lays down the amount of compensation to be provided for each category of the injury as also in the case of death to the employee concerned.
Section 4-A provide for the due date of the payment of compensation and penalty for default.
Section 10 provides for a notice of the claim.
Section 19 of the Act provide for reference for ascertaining the compensation and the dispute being adjudicated by the Commissioner to be appointed under Section 20 of the same Act.
So far as the procedure before the Commissioner is concerned, it has been provided that he shall have all the powers of the civil court provided for under the code of civil procedure, for the purposes of taking evidence on oath for enforcing the attendance of witnesses, production of document and object.
Section 24 provide for the appearance of the parties.
Section 25 provides for the method of recording of evidences.
Against the order of the Commissioner, an appeal under Section 13 has been provided before the Hon'ble High Court.
We may record that the Act 1929 does not confer any specific power of review, upon the Commissioner.
Provision of Order 47 have not been made applicable in respect of the proceeding under the Employees Compensation Act, 1923. Therefore, we have no hesitation to record that from the Scheme of the Act it can be safely inferred that the Commissioner has not been conferred any power of review under the Act. It is settled law that the power of review is a creation of statue and in absence thereof no authority exercising quasi judicial power can review its earlier order.
We may further record that the Tribunal for the purposes of making the impugned order has relied upon the judgement in the case of United India Company Limited Vs. Rejendra Singh, reported in 2000 (11) 202, Durghatna Muawaja Patrika, as well as upon the order of the High Court passed in Writ Petition No. 2880 of 2012 (Smt. Rita Vs. State of U.P.). The paragraph of the judgement which have been so having relied upon by the Tribunal only confer a power, to recall an order which has been made in absence of a party and in cases where an order has been obtained by fraud. It is settled law that every authority has inherent power to recall an order which has been obtained by fraud. Similarly every authority has a right to recall an order which has been made ex-parte on an proper ground being made out for the purpose. But the aforesaid powers cannot be extended to mean that the Commissioner had a power of review.
We may further record that even if, it is presumed that the Commissioner could have reviewed the order, then to such review could have done, if there had been an error apparent on the face of the record. The power of review cannot be extended so as to re appreciable the entire evidence afresh and to come on a different conclusion on the basis of the same evidence which was considered earlier. The legal principle in that regards, with regard to the scope of power of review has also been settled by the Apex Court.
For both the aforesaid reasons, we are more than satisfied that the order made by the Commissioner dated 20.07.2012, cannot be legally sustained and is hereby quashed for want of jurisdiction.
We however, clarify that this order shall not affect the rights of the employer to file an appeal under Section 13 of Act 1923 against the original award.
With the aforesaid observation, the appeal is allowed.
Order Date :- 4.5.2016/VKG