1. Heard Ld.Advocates for the parties. The petitioner, opponent in review application no.9 of 2008 in Workmen Compensation Application No.172 of 1992 has approached this Court by filing this petition under Article-226 and also under Article 227 of Constitution of India challenging the order dated 05/01/2009 passed by the Tribunal allowing the review application for the reasons stated thereunder.
2. The facts in brief leading to filing of this petition as culled out from the petition deserves to be set out as under.
2.1 The petitioner and one person who died during the course of pendency of the original Workmen Compensation Application No.172 of 1992, were parties in the main matter being Workmen Compensation Application No.172 of 1992, which was originally filed by Manjulaben Avasthi, who was substituted by present respondent Smt.Hansaben Madanmohan Avasthi, who happened to be widow of deceased employee who died in an accident, and was therefore, entitled to receive compensation. In the said application, the first respondent namely Darshansinh Punjabi, opponent no.1 in Workmen Compensation Application No.172 of 1992 passed away and accordingly, the application for bringing his heirs on record has also not accepted as earlier orders were passed. The W.C. Application No.172 of 1992, came to be decided on 19th March, 2008. The Court while deciding the matter, on 19th March, 2008 recorded that except the oral testimony of the applicant, no other evidences have been placed on record. It was also observed that though the offence is registered at Amraivadi Police Station, no copy of charge-sheet is placed on record. No death certificate is also placed on record nor any postmortem report is placed on record. In light of these findings, the Court observed that non-production of those documents on record being a serious omission, it cannot be held in any manner in favour of the applicant for awarding compensation and hence, rejected the same vide order dated 19th March, 2008, against which the review application was filed relying upon the provisions of Rule-32 of Gujarat Workmen's Compensation Rules, 1967 (hereinafter referred to as the "Gujarat Rules" for the sake of brevity).
3. In this application, it was categorically contended by the widow of the deceased workman that the documentary evidences in respect of death of the deceased and incident were produced on record, yet the Workmen Compensation Commissioner while disposing of the matter did not refer to them and said that they are not there on the record. This being incorrect recording, the review was required to be preferred and the same was also permissible as per provision of Gujarat Rules 32 (2) of the Rules.
4. The present petitioner filed reply to the review application on 10/07/2008, wherein the review application was resisted on the grounds that there exist no power to review, but unfortunately, there is no denial to what has contended in the review application, specifically that the documentary evidences, which are referred to in the review application have not been taken into consideration by the concerned Commissioner working under Workmen Compensation, while deciding the matter, though those documents were very much on record.
5. The Commissioner, Workmen Compensation, passed an order on 05/01/2009 recording that the applicant in her deposition extensively referred to various documents including the document in the nature of notice issued on behalf of the claimant to the employer, wherein it was specifically mentioned that her husband died during the incident occurred at the petrol pump and the reply to the notice issued by the owner of the petrol pump, which is produced at Exh.17/1 contains clear admission with regard to the incident, the employment and the death as such. Therefore, these documents were very much there on the record and in view of this, the non-reference to them and referring to non-production of postmortem note were made basis for passing the earlier order. Hence, he filed the review application dated 05/01/2009.
6. Being aggrieved and dissatisfied with the order the present application is preferred on the following grounds, which are set out in the application.
7. The learned advocate for the petitioner has contended that the review application could not have been maintained in view of the fact that Gujarat Rules 32 (2) cannot be construed as permitting review in the present form and therefore, the review application, which is not maintainable could not have been allowed by the Court in the first instance.
8. The learned advocate for the petitioner further contended that the Court while reviewing the matter, came to the conclusion that the applicant in her testimony has referred to the documents, but those documents themselves were not sufficient to conclude the case against the employer and therefore, the omission in producing the relevant document in the nature of First Information Report and postmortem note etc., would have rightly been treated as fatal in the original order.
9. The learned advocate for the petitioner thereafter, contended that the pendency of the case clearly indicate that there exists enough time for production of relevant documents and therefore, non-production of those documents and the order passed on the basis thereupon cannot be sought to be reviewed by way of application, which was not maintainable in the eye of law. The learned advocate for the petitioner has cited the decision of 2007 (2) Supreme Court Cases (L & S) 819 in case of Gopal Singh V/s. State Cadre Forest Officers' Assn. And others.
10. The learned advocate for the respondent has contended that the Court in the first instance while passing the order on 19/03/2008 was under obligation to refer to the testimony and while deposing the entire facts, the applicant did produce copy of the reply to the notice issued on behalf of workman, that reply contains clear admission, which could be construed as entire incident and the claim was accepted by the employer. Therefore, the review application was rightly allowed.
11. The learned advocate for the respondent thereafter, invited this court's attention to the testimony of the widow and pointed out therefrom that the reply is in fact on record, despite that, the Court while passing original order of 19/03/2008 did not refer to the same, which has resulted into depriving the widow from her legitimate right to receive the compensation from the employer.
12. The Court has heard learned advocates for the parties and perused the two orders in question. The Court is of the considered view that strictly speaking the Rule 32 (2) of Gujarat Rules do not permit review as it is commonly understood in legal parlance. Apart therefrom, there exists no other provision providing for review of the order. There cannot be any dispute of the legal proposition that there exist no provision stricto senso of terms 'review' as such.
13. The Court is of the considered view that the peculiar facts of the present case and the fact that the application is also challenging the order under Article 226 of Constitution of India, this Court is not inclined to exercise extraordinary remedy in favour of the petitioner for the following reasons.
(i) The fact remains that the original order passed on 19/03/2008 was proceeded on the basis as if no evidences are produced on record, except the testimony of the complainant. Now, reading the testimony of the complainant and the findings recorded by the Commissioner in the order dated 05/01/2009 impugned in this petition, one could read unequivocally that the reply to the notice issued on behalf of the workman is produced on record, wherein the entire incident wherein the workman died, has been accepted. Now, if that is the situation, then question arises as to how far the Commissioner while deciding the matter on 19/03/2008 was justified in saying that there exists no documents so as to decide the matter in respect of the incident in question. The incident and employment however is not disputed and the death occurred during the course of employment and on the place of employment is also not disputed, then the Workmen Compensation Commissioner was under obligation to advert to those facts and decide the matter in light thereof. While adverting to these facts, it is not necessary that veracity is also to be accepted. But, the examination of these facts were required for arriving at correct conclusion. The non-adverting to these facts, being fatal, it can be said that the said order resulted into miscarriage of justice, which is incurable except by filing appropriate application and if that application is filed and the Court has accepted it, where under both the parties are getting opportunity to plead their evidence, but there cannot be said to be any error or injustice in passing the order dated 05/01/2009, so as to call for interference by this court under Article 226 and 227 of the Constitution of India.
(ii) The petition is filed under Article 226 and 227 of Constitution of India, the petitioner has chosen not to join the Commissioner, Workmen Compensation, that is the Tribunal as a party for invoking writ of statutory Article 226 of Constitution of India. Therefore, on this count also it can be said that the petition under Article 226 of Constitution of India is not maintainable in view of the decision of the Full Bench in case of (The) Bhagyodaya Co-operative Bank Limited Vs. Natvarlal K. Patel, reported in 2011 (3) G.L.H. (Full Bench) 89. So far as the petition under Article 227 of Constitution of India is concerned the narration and discretion hereinabove amply indicate that there exists no error apparent on the face of the record, which would call for interference under Article 227 of Constitution of India. Hence, on this count also the petition would not be required to be maintained or entertained. The paramount consideration waive with this Court for not interfering in the impugned order is the fact that infact, on account of an impugned order, the parties are getting an opportunity of pleading their case and the same has not resulted into miscarriage of justice calling for an interference and hence, the petition is deserves to be dismissed. The decision cited at bar by the learned advocate for the petitioner is also of no avail in view of the peculiar facts and circumstances mentioned hereinabove.
14. In view of the aforesaid discussion, the Court is of the opinion that the petition is required to be dismissed and the same is dismissed. Rule discharged. Interim relief granted earlier stands vacated. However, there shall be no order as to costs.
(S.
R. Brahmbhatt, J.) ..rathod Top