VINEET Saran, J. - (1.) The moot question for determination of this Court in this writ petition is as to whether the Workmen's Compensation Commissioner (for short 'the Commissioner') has power to review his own Award passed under the Workmen's Compensation Act, 1923 (for short 'the Act' ).
(2.) THE brief facts of this case are that the petitioner-firm is engaged in the business of supply of security guards. On request of Respondent No. 4 Vinod Agarwal of M/s. Agarwal Iron and Steel Company Ltd. , the petitioner firm supplied some security guards, including two gun-men, out of whom Raj Kumar Singh, husband of Respondent No. 3 was one, who was shot dead while on duty. The case of the petitioner, however, is that at the time of the incident the services of the deceased gun-man were being utilized by the Respondent No. 4 for personal use and as such he could not be treated to be on duty. The respondent No. 3 Kamlesh, wife of late Raj Kumar Singh, then filed a claim under the Act for compensation of Rs. 4,15,960/- alongwith 12% interest and also 50% penalty. Such claim was made against the petitioners and the Respondent No. 4. After considering the case of the respective parties, the Commissioner passed an Award on 31-3-2005, granting compensation of Rs. 3,79,563/- against the Respondent No. 4. Then after a gap of nearly two months, on 25/30-5-2005 the Respondent No. 4 filed an application under Section 23 of the Act; Rule 41 of the Workmen's Compensation Rules, 1924 (for short the Rules') and Section 151 of the Code of Civil Procedure (C. P. C.), with the following prayer: "it is, therefore, prayed that the Judgment dated 31-3-2005 be set aside as against the applicant" The main ground for reviewing or setting aside the judgment (Award) dated 31-3-2005 was that the mandatory provision of framing issues as provided under Rule 28 of the Rules had not been complied with, which is an error apparent on the face of the record, resulting in miscarriage of justice. The petitioners herein filed their objections to the review application stating that the Commissioner does not have the power to review his judgment, and that even if such an application was filed on the ground of the Award being erroneous in law, then too the same would not be maintainable. It was also stated in the objection that the copy of the said application dated 25/30-5-2005 had not been supplied to the petitioners and that they would give a detailed reply on receipt of such application. However, by order dated 7-12-2005, the Commissioner allowed the application of the Respondent No. 4 and set aside the Award dated 31-3-2005 on the condition that the Respondent No. 4 deposits a sum of Rs. 80,000/- within one week and pays a sum of Rs. 10,000/- as cost to the claimant-Respondent No. 3. The Commissioner thereafter proceeded to decide the matter on merits and passed a fresh Award dated 20-4-2006, whereby the entire claim of Respondent No. 3, amounting to Rs. 4,15,960/- alongwith 12% interest, was awarded in favour of Respondent No. 3 and against the petitioners. This writ petition has, thus, been filed by the petitioners challenging the order dated 7-12-2005 and the subsequent Award dated 20-4-2006 passed after allowing the review application.
(3.) I have heard Sri V. R. Agarwal, learned Senior Counsel alongwith Sri C. B. Gupta, learned Counsel appearing for the petitioners; Sri Anoop Trivedi for claimant-Respondent No. 3 and Sri R. K. Awasthi for Respondent No. 4. Learned Standing Counsel appeared for Respondents No. 1 and 2. Learned Counsel for the respondents had made a statement that they do not wish to file counter-affidavit and thus, with the consent of the learned Counsel for the parties, this writ petition is being decided at the admission stage itself. Learned Counsel for the respondents raised a preliminary objection regarding the maintainability of this writ petition. It has been stated that once the Award dated 20-4-2006 had been passed, the same could not be challenged in writ jurisdiction as the petitioners have an alternative remedy of filing an appeal under Section 30 of the Act. Such objection of the respondents is not tenable as, besides the Award, the petitioners have also challenged the order dated 7-12-2005 whereby the application for reviewing the earlier Award dated 31-3-2005 had been allowed and the aforesaid Award had been set aside.;