Jeevanbhai R. Tandel vs Dockendaie Shipping and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1996 Supreme(Bom) 339

IN THE HIGH COURT OF BOMBAY
V.P. Tipnis F.I. Rebello, JJ.
Shri Jeevanbhai R. Tandel.... Petitioner.
Versus
M/s. Dockendaie Shipping and others.... Respondents.
Writ Petition No. 732 of 1996, decided on 27-6-1996.
Advocates appeared :
N.M. Ganguli with Ms. A.R. Panjwani, for the petitioner.
Subodh Joshi with Shekhar Shetty, for respondent No. 2.

Headnote:Order XXVI, Rules 3 to 21- See Workmens Compensation Act, 1923. Sections 23 and 25.
       Order XXVI, Rules 23 and 41-See Workmens Compensation Act. 1923. Section 23.
       Section 23-Workmans Compensation Rules, 1924, Rules 23 and 41-Code of Civil Procedure, 1908-Order XXVI, Rules 3 to 21-Quick relief-objection of Act-Same cannot be allowed to be defeated.-Quick relief to the workman concerned is one of the objects of the Act. But that cannot be stretched so far as to defeat the very object of the Act. If the workman injured is physically unable to come to the Court of the Commissioner. We fail to appreciate why the Commissioner cannot appoint will officer as envisaged under Rule 23 of Rules or even appoint a commission for examination of the applicant. We are of the clear view that unless prohibited by specific provisions of the law, the Commissioner who is a Court shall have all the ancillary powers which are necessary for discharging his functions under the Act. Adjudicating upon the claim of the workman is the primary function under the Act and we cannot possibly conceive a situation that the Commissioner appointed to give a speedy relief to the workman is helpless only because the workman, due to physical disability, cannot physically remain present before him.
       Taking into consideration the various provisions of the Act and the Rules and the aforesaid decisions, Court is of the clear view that the Commissioner under the Act has all the powers which are necessary for effective adjudication of the claims of the workman excepting those which are excluded or prohibited expressly or impliedly by any law. Court is also of the clear view that no provision of the law or the rules under the Workmens Compensation Act prohibits appointment of commission for recording of evidence.
       Sections 23 and 25-Workmens Compensation Rules, 1924, Rules 23 and 41-Code of Civil Procedure. 1908-Order XXVI, Rules 3 to 21-Commlssloner-He can examine witnesses and applicant through authorised officer-He can call for report.- The provisions of Section 25 indicate that the Commissioner himself has to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds, Rule 41. undoubtedly, refers to certain provisions of the Code of Civil Procedure which shall apply to proceedings before the commissioner. However, it requires to be noticed that the rule expressly states that save as otherwise expressly provided in the Act or the rules. The following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30 Order IX, Order XIII, Rules 2 to 100 Order XVI, Rules 3 to 21. Order XVII, and Order XXIII. Rules 1 and 2 shall apply to proceedings before Commissioner insofar as they may be applicable thereto. The proviso to the rule is extremely relevant. Under proviso (al. it is stated that for the purpose of facilitating the application of the said provisions the Commissioner may construe there with such alteration not affecting the substance as may be necessary or proper to adapt them to the matter before him. Proviso (b) states that the Commissioner may for sufficient reasons proceed otherwise than in accordance with the said provisions, if he is satisfied that the interest of the parties will not hereby the prejudiced. As stated earlier, the provisions of Rule 23 clearly empower the Commissioner to send the application to any officer authorised by the State Government in this behalf and direct such officer to examine the applicant and his witnesses and forward the record thereof to the commissioner. The very scheme of the Act is to give sufficient powers to the Commissioner with a view to enabling him to properly adjudicate the matter.
       Workmens Compensation Rules, 1924
       Rules 23 and 41-See-Workmen of Compensation Act, 1923, Sections 23 and 25.

JUDGMENT- V.P. TIPNIS, J. :---The petitioner has contended that he was a seaman and was in permanent employment of respondents Nos. 1 2. The petitioner has worked as a seaman on several ships for several years. According to the petitioner, during his employment, he was required to go and work for foreign going ships and the last of his such employment was on ship M.V. Okim. According to the petitioner, he was performing hard and strenuous duties for 12 to 13 hours a day. According to the petitioner, he suffered an injury by accident arising out of and in the course of his employment and he was declared permanently unfit for duty. He was working on the ship on 16-5-1990 and he suffered severe headache with vomiting. He was hospitalised and suffered a paralytic stroke and his right-side hemiplegia stabilised with nipotony. However, his speech was impaired and he could not speak properly. The petitioner says that he is totally bed-ridden and he is not able to get up or attend to his routine movement. Everything has to be done by his wife and neighbours.

2.In the aforesaid circumstances, he filed an application bearing No. 250/C-54 of 1993 before the Commissioner for Workmen's Compensation at Bombay. It is the case of the petitioner that in the written statement, the respondents did not deny that the injury was caused to the petitioner by accident while on duty.

3.As the petitioner was totally disabled from attending the Court physically due to his condition, an application was made before the Commissioner for Workmen's Compensation. In the said application, it was pointed out that the applicant Jeevanbhai Tandel is suffering from right-side paralysis. His right hand and right leg are not moving at all. He cannot walk and cannot write. He is also unable to talk and even if attempts to talk, it is not clear. However, the applicant is able to hear and understand. He requested the Commissioner that some Commission be appointed to record his evidence. The application was stoutly opposed by the respondents and it was specifically contended that the Commissioner for Workmen's Compensation under the Workmen's Compensation Act, 1923 (hereinafter referred to as the "Act") has no jurisdiction to issue a commission for the examination of a witness.

4.On this application, the Commissioner held that the decisions reported in A.I.R. 1970 Bombay 278, Ramavtar Choudhary v. Sohevalley Port Land Cement Co. Ltd., A.I.R. 1958 Patna 540, 1974 Lab. I.C. 952 and 1956 Lab. I.C. 927 do not show that the Commissioner under the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'Act') has power to appoint a commission to take evidence of a witness. The power under section 23 invested with the Commissioner is limited for taking evidence on oath and enforcing the attendance of the witness and compelling the production of the documents and material objects. Accordingly, by his Judgment and Order dated 16th October, 1995, the application was rejected by the Commissioner for Workmen's Compensation.

5.The legality and correctness of the aforesaid decision of the Commissioner is challenged in this petition. We have heard Mr. Ganguli, learned Counsel appearing for the petitioner, and Mr. Joshi, learned Counsel appearing for respondent No. 2 at some length. Mr. Ganguli submitted that the order of the learned Commissioner is patently unjust and unfair and also illegal. Taking us through the various provisions of the Act, Mr. Ganguli submitted that the Act or the Rules do not prohibit the Commissioner from appointment of a commission for recording the evidence of the applicant. Mr. Ganguli also relied upon the decision of a Division Bench of this Court in Rajiyabi v. Mackinon Machinazie and Co. Pvt. Ltd., A.I.R. 1970 Bombay 278 in support of his submission that the Commissioner under the Act is a Court. Mr. Ganguli also relied upon the decision of a Single Judge of the Kerala High Court in (K.V. Aboo v. Commissioner for Workmen's Compensation)5, 1977(II)

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