Heard Sri Amaresh Sinha, learned counsel for the petitioner and Sri Siddharth holding brief of Sri Alok Sharma appearing for respondent no.2 as well as Sri S.S. Nigam, learned counsel for respondents no.3 and 4.
By this petition, the petitioner has sought relief for quashing the orders dated 20.12.2003 and 20.1.2004 passed by Workmen's Compensation Commissioner, Meerut in W.C. Case No. 14 of 1998, contained in Annexures no.10 and 12 respectively to this petition. He has also sought for further relief in the nature of mandamus directing the respondents not to recover the amount on the basis of judgement and order dated 20.12.2003 passed by Workmen's Compensation Commissioner, Meerut.
The aforesaid reliefs sought for by this petition rest on the allegations that respondent no.2 filed a claim petition in respect of injuries sustained by him during the course of employment of respondent no.3 (M/s Dewan Tyer Ltd.) on 27.11.1996. The respondent no.3 (M/s Dewan Tyres Ltd. Partapur, Meerut) contested the claim by filing written statement. Prior to filing of its written statement an application dated 28.1.1998 was filed by respondent no.3 denying the employment of claimant-respondent with him directly and alleged that the claimant might have been engaged through M/s Gupta & Company, Ganj Bazar, Sadar, Meerut-contractor who used to work at that time subject to the verification of the facts from their record, as such M/s Gupta & Company and the insurer of the employees of the Gupta & Company the petitioner's company may be impleaded. It is also stated that an objection was filed on behalf of claimant-respondent to the aforesaid application of respondent no.3. Ultimately M/s Gupta and Company and petitioner's company were impleaded and Gupta and company contested the claim petition by filing written statement. It is stated that Workmen's Commissioner without service of summons upon the petitioner's company i.e. Oriental Insurance Company allowed the claim petition vide its judgement and order dated 8.5.2001 and awarded a sum of Rs. 1,06,267.60 p. and 12% interest thereon from the date of accident to the date of such payment.
It is stated that the aforesaid judgement and order dated 8.5.2001 passed by Workmen's Compensation Commissioner was ex-parte against the petitioner as such an application was moved on 25.6.2001 to recall the said order dated 8.5.2001. Thereupon the Workmen's Compensation Commissioner, Meerut vide its judgement and order dated 3.5.2002 allowed the above application and recalled the judgement and order dated 8.5.2001 and held that the petitioner's company shall be liable for payment of 60% of awarded amount of compensation and 40% of awarded amount of compensation shall be liable to be paid by employer-respondent no.3. It appears that an application dated 3.6.2002 was filed on behalf of the respondent no.4 to recall the order dated 3.5.2002. Thereupon the Workmen's Compensation Commissioner vide its judgement and order dated 20.12.2003 set aside its judgement and order dated 3.5.2002 and restored/confirmed its earlier judgement and order dated 8.5.2001 which was passed ex-parte against the petitioner. A true copy of the aforesaid order dated 20.12.2003 passed by Workmen's Compensation Commissioner is on record as Annexure-10 to the writ petition.
It is further stated that the order dated 20.12.2003 was passed without any notice to the petitioner's company and was ex-parte as such an application dated 15.1.2004 was filed on behalf of the petitioner's company to recall the order dated 20.12.2003 and exempt the petitioner's company from payment of any amount as directed by the order dated 20.12.2003. The Workmen's Compensation Commissioner rejected the application dated 15.1.2004 vide its order dated 20.1.2004, a copy of which is on record as Annexure-12 to the writ petition. These two orders dated 20.12.2003 and 20.1.2004 are under challenge before this court. It is submitted that the order dated 20.1.2004 is cryptic in nature and without any reason, therefore, is liable to be set aside. Further submission of learned counsel for the petitioner is that the order dated 3.5.2002 passed by Workmen's Compensation Commissioner was fully justified and there was no justification for him to set aside the aforesaid order by subsequent order dated 20.12.2003 whereby he has virtually reviewed his earlier order. There is conspicuous absence of power of review in the Workmen's Compensation Act, as such the same is wholly arbitrary and illegal and cannot be sustainable in the eye of law.
I have heard the submissions of learned counsel for the parties and also perused the record.
From the perusal of record it appears that vide judgement and order dated 8.5.2001 passed in W.C. Case No.14 of 1998, Jaiveer Singh Vs. M/s Dewan Tyhres Ltd & others, the Workmen's Compensation Commissioner has awarded a sum of Rs. 1,06,257.60 p. as compensation to the workman-respondent no.2 Jaiveer Singh alongwith 12% interest thereon from the date of accident to the date of payment. In the aforesaid order the Workmen's Compensation Commissioner has also held that the respondent no.2 was employee of M/s Dewan Tyres Ltd-respondent no.3 and employees of that company was insured with the petitioner's company. Thereupon it appears that on an application moved on behalf of petitioner that the order dated 8.5.2001 passed by Workmen's Compensation Commissioner was ex-parte against the petitioner, the petitioner has also been heard by Workmens' Compensation Commissioner and after hearing the parties, the order dated 3.5.2002 was passed by Workmen's Compensation Commissioner whereby the liability was apportioned by him and for payment of 60% amount the Insurance/petitioner's company was held liable and with respect to 40% amount the employer/respondent no.3 was held liable for payment of compensation.
Feeling aggrieved by the aforesaid order passed by Workmen's Compensation Commissioner the respondent no.4 namely M/s Gupta & Company, Ganj Bazar, Sadar, Meerut has filed an application before Workmen's Compensation Commissioner, upon which the order dated 3.5.2002 was set aside and the order dated 8.5.2001 was restored by Workmen's Compensation Commissioner vide its judgement and order dated 20.12.2003. Against this order the petitioner has moved application which has been rejected by Workmen's Compensation Commissioner vide its order dated 20.1.2004 merely on the ground that since the judgement has already been passed, therefore, there is no justification for such application moved by the petitioner. Although learned counsel for the petitioner has submitted that the order dated 20.12.2003 was passed by Workmen's Compensation Commissioner without hearing the petitioner and he has no jurisdiction to review his earlier order on merit but he could not point out anything as to what submission he could have made about the legal apportionment done by the Workmen's Compensation Commissioner in case he would have been given opportunity of hearing before the Workmen's Compensation Commissioner, as such in absence of any legal position of apportionment even if the Workmen's Compensation Commissioner has passed subsequent order whereby he has reviewed his earlier order dated 3.5.2008, this court can not set aside the aforesaid order merely on the ground that the aforesaid order has been passed without hearing to the petitioner, as affording such opportunity of hearing, in my considered opinion, in view of law laid down by Apex Court in M.C. Mehta Vs. Union of India and others, AIR 1999 S.C. 2583 and Kenara Bank................................................
In such a facts and circumstances of the case, useless formality theory can be pressed into service. Since, in my opinion, there was no legal foundation for apportionment of compensation between the employer and insurance company when the employee has been admittedly insured by the employer with the petitioner's/Insurance company, in such situation the liability for making such compensation was of the insurance, therefore, merely the subsequent order passed on 20.12.2003 by which the earlier order dated 3.5.2001 was set aside and the order dated 8.5.2001 was restored cannot be found faulty. Even if the earlier order dated 3.5.2002 is set aside ultimately an illegal order dated 8.5.2001would be restored, as such in such situation, I am not inclined to exercise any extra ordinary power in writ jurisdiction to restore an illegal order passed by Workmen's Compensation Commissioner. Accordingly, I do not find any good ground to interfere in the impugned orders passed by Workmen's Compensation Commissioner.
The writ petition is dismissed.
Order Date :- 7.12.2010 LJ/-