K.S. MODI Vs. BICHITRANANDA SWAIN
LAWS(ORI)-1973-1-13
HIGH COURT OF ORISSA
Decided on January 30,1973

K.S. Modi Appellant
VERSUS
Bichitrananda Swain Respondents

JUDGEMENT

S.K.Ray, J. - (1.) THE Commissioner for Workmen's Compensation, Rourkela received information that the Respondent met with an accident on 8 -4 -1970 near Steel Melting Ship area arising out of and in course of his employment under the Appellant, a contractor under the Hindustan Steel Ltd., and suffered serious personal injury. He registered a case under the Workmen's Compensation Act. Subsequently the Respondent filed an application before him on 10 -11 -1970 claiming a sum of Rs. 8400/ - as compensation against the Appellant, his employer. The Commissioner awarded Rs. 3360/ - as compensation against the Appellant by his order dated 30 -3 -1972. This appeal has been filed under Section 30 of the Workmen's Compensation Act, provides that an appeal shall lie to the High Court only on the question of law and not on a question of fact.
(2.) MR . R. N. Dass raised three contentions. The first is that Commissioner has not followed the mandatory provisions laid in Rules 20, 23, 25 and 28 of the Workmen's Compensation Rules, 1924 and accordingly the entire proceedings from the stage receiving the claim petition from the. injured till the passing of the final order awarding compensation is vitiated. The second is that the Commissioner has accepted and acted upon a vital piece of documentary evidence namely the medical certificate alleged to be in respect of the injured Respondent, which has not been properly proved as to its contents or as to its connection with the injured Respondent. The third is that the Commissioner has misdirected himself in' throwing the onus of proof in this particular case on the contractor. I am of opinion that all the three contentions are sound.R.20 provides that an application of the nature referred to in Section 22 of the Workmen's Compensation Act will be sent to the Commissioner in the manner provided therein, and a certificate signed by the applicant shall be appended to it. If the application for relief is based upon a document, that document shall be appended to the application as provided underR.21. ThisR.21 further provides that if any document which is not produced at or within the time specified in Sub -rule (1) or (2) thereof the same shall not be admissible in evidence on behalf of the party who should have produced it without sanction of the Commissioner.R.23 (1) provides that on receipt of the application it shall be the duty of the Commissioner either to examine the applicant on oath himself or send that application to any officer authorised by the State Government on behalf and direct such officer to examine the applicant and his witness and forward the record thereof to him. Sub -rule (2) ofR.23 provides that the substance of any examination made under Sub -rule (1), shall be recorded in the manner provided for the recording of evidence under Section 25 of the Workmen's Compensation Act. After considering the testimony of the applicant the Commissioner may dismiss the application summarily. If the Commissioner, on the other hand decides to proceed further, he shall not dismiss the. application, but shall send to the opposite party, namely the contractor here, from whom the applicant claims relief, a copy of the application, together will a notice of the date, on which he will dispose of the application and may call upon the parties to produce, upon that date, any evidence which they may wish to tender. It appears from the record that the aforesaid legal requirements were not complied but only a notice to show cause was given to the Appellant who appeared and showed cause. Thereafter came the stage envisaged byR.28 which enjoined upon the Commissioner to frame issues after ascertaining upon what material propositions of fact or law the parties are at variance. The Commissioner omitted to comply with this rule also. Before framing of issues underR.28, the Commissioner shall, when the employer -opposite party files a written statement contesting the claim, as in this case, examine such opposite party, upon the claim, as provided inR.27. It appears from the record that these rules which are mandatory have not been complied with and the consequence of such non -compliance is that the proceeding from the stage ofR.20 inclusive of the final order awarding compensation is vitiated. In support of this position Mr. Das has brought to my notice the decision reported in the case of Ramautar Choudhury v. Sone Vally Portland Cement Co. Ltd. : : A.I.R. 1958 Pat. 540 It has been held there that the procedure laid down inR.28, Workmen's Compensation Rules should be followed and if this rule is not followed and the judgment is pronounced without framing any issue, the procedure is not in accordance with law and is vitiated. Only in that case rules 27 and 28 were not complied with. In the instant case besidesR.28,R.27 has also not been complied with. That rule appears to me as mandatory. In result, therefore, the final order of the Commissioner together all the stages of the proceedings subsequent to receipt of the claim application and evidence recorded in course of those stages of the proceeding shall be treated to be wholly vitiated and are accordingly wiped out.
(3.) THE medical certificate which was acted upon has not been proved by examining the doctor who granted it. This certificate, on its face, shows that it relates to one Biswanath, who has been shown as patient in the certificate and has no connection with the Respondent. Even the Respondent has not examined himself and there is no evidence connecting the certificate with the Respondent, it is well established that the commissioner acting under the Workmen's Compensation Act is to find facts upon legal evidence on record. In this particular case it is clear that he has acted upon this medical certificate which is an inadmissible piece of evidence.;


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