Roshan
Deen Vs. Preeti Lal [2001] Insc 584 (2 November 2001)
K.T.
Thomas & S.N. Variava Thomas, J.
Leave
granted.
If the
Judgment of the High Court, now under attack, is termed as wrong and untenable
it is only a euphemistic characterisation. It really amounted to crippling the
cause of justice of a crippled man. The powers of writ jurisdiction of the High
Courts are basically intended to salvage causes of justice, but the High Court,
in this case, has exercised such powers for over-turning justice which a lower
authority had granted to a devastatingly disabled person.
Roshan
Deen, a young man of 25, made a claim on the respondent (who was running a
Flour Mill-cum-Sugarcane Factory) for a sum of Rs.7 lakhs on the following
factual averments: The claimant (present appellant) was a workman of the
respondents industrial establishment, on a monthly salary of Rs.1500/-. On an
ill-fated day in his life (4.3.1995) he was operating a machine of the Mill,
but in a sudden tweak he got himself snapped in the shaft of a column and was
crushed by the fast rotating machine and was ruinously injured. His neck,
hands, legs etc. suffered multiple injuries including fractures. He was rushed
to a private hospital and from there, to the Post Graduate Institute, Chandigarh. An emergency tracheotomy was
performed to save his life as the endoscope revealed that his right vocal cord
has been paralised, the trachea and other vessels of the neck were impaired.
One of his legs and one of his hands were amputated besides very many other impairment
suffered by him. Enough it is to say that he did not die of the injuries. If
the description of the ravageous features of the consequences on his person as
recorded in the medical papers produced by him are to be believed we can only
bemoan that he survived to live a triturated life.
He
filed a petition before the Commissioner for Workmens Compensation, Yamuna Nagar
(Haryana) on 6.2.1997, claiming compensation of Rs.5 lakhs plus medical
expenses of Rs.2 lakhs, in accordance with the provisions of the Workmens
Compensation Act, 1923, (for short the Act).
The
respondent in his written statement repudiated all the above averments
including the very basic of the claim that appellant was a workman of his Mill.
Respondent proceeded to state that no such accident as described by the
appellant had happened nor had the appellant sustained any injury whatsoever.
While
the claim petition was pending before the Commissioner for Workmens
Compensation (for short the Commissioner) an application dated 12.3.1999 was
filed in which it was stated, inter alia, that appellant and respondent had
entered into an agreement with each other and, hence, the appellant did not
want to pursue any claim against the respondent and, on the strength of the
said agreement, requested the Commissioner to record the agreement. The
application was purportedly signed by the respondent which signature was
authenticated by an advocate. But there was no signature of the appellant on
the application, instead a thumb impression was seen affixed which was
identified by Advocate R. Singh. On 19.3.1999, the Commissioner passed the
following order:
Today,
the case is fixed for R/E. None is present on behalf of the applicant. The
respondent stated that both parties had arrived at an agreement, therefore,
nobody would come on behalf of the applicant. He had also submitted a written
agreement deed on dated 12.3.1999, the applicant and his counsel had been also
present at that time.
In
this situation, accepting agreement deed to be correct, claim of the applicant
is dismissed as settled/withdrawn.
On
16.4.1999, appellant filed a petition before the Commissioner praying for
recalling the above quoted order.
He
stated in the said petition that on 12.3.1999, his advocate (Shri Rajpal Panwar,
Advocate, Jagadhri) obtained his thumb impression on a certain document the
contents of which were not disclosed to him and after paying him Rs.9,500/- the
advocate told him that it was given pursuant to a decision rendered by the
Commissioner; and he was asked to go to the office of the advocate again after
15 days. Appellant further stated in the said petition that when he went to the
office of the advocate after 15 days, as required by him, the advocate refused
to go with the appellant to the Commissioner. When he made enquiries about his
case he came to know of the order dated 19.3.1999.
Immediately
he felt that a fraud had been played on him.
The
Commissioner called upon the respondent to give his reply to the allegations
made in the petition filed by the appellant for recalling the order. Respondent
in his reply disclaimed having paid any amount to appellant and even disowned
the minuted fact that he made the statement in the court that an agreement was
arrived at. He asserted that appellant had withdrawn his claim on his own. He
reiterated that appellant was never employed by him and denied having played
any fraud on him, but he forcefully opposed the prayer for recalling the order.
The
Commissioner thereupon passed an order on 11.10.1999, after referring to
Section 17 of the Act which declares any agreement (by which a workman
relinquishes any right to get compensation from the employer for personal
injury) as null and void. The operative portion of the order so passed by the
Commissioner reads thus:
In
view of Section 17 of the Act read with Section 151 of the CPC, I set aside
order dated 19.3.99 in the interest of justice so that the claim case could be
decided on merits. Since the respondent has denied that any payment has been
made to the applicant on 12.3.99 no suffering shall be caused to him by this
order. The case to come up for evidence of the respondent on 19.11.99. No
costs. The parties be informed accordingly.
Respondent
challenged the said order before the High Court under Article 227 of the
Constitution and a copy of the order passed by the Commissioner on 19.3.1999
was appended with the writ petition as Annexure-P1. In the said writ petition
respondent did not concede that he paid Rs.9,500/-. Still he opposed the prayer
for recalling the order dated 19.3.1999. Learned single Judge of the High
Court, despite his attention being drawn to Section 17 of the Act, went to the
extent of observing that no fraud was played on the appellant. The reasoning of
the learned single Judge (R.L. Anand, J) for upsetting the order of the
Commissioner, by which the earlier order was recalled, is the following:
A
reference to Annexure-P1 would show that a joint application was moved by Roshan
Deen and the present petitioner Preeti Lal. It was in the shape of a compromise
in which it was submitted by the parties that since they have compromised with
each other, therefore, Roshan Deen applicant does not want to pursue his case
and withdraw the same. Of course, it was written in the said application
Annexure-P1 that the said compromise be also taken on record. In view of the
clear intention on the part of Roshan Deen that he did not want to pursue his
case and withdraw the same, no other order was required. The application for
recalling the order dated 16.4.1999 was moved after a period of about 27 days.
It is not established on record that Roshan Deen ever gave a notice to his
counsel that he never gave instructions to him for the purpose of entering into
a compromise. Even in the review application Roshan Deen does not say that the thumb
impression on the original of Annexure-P1 is not his. In these circumstances, I
am of the opinion that no fraud has been practised upon the Court.
Rather,
the intention of Roshan Deen became bad subsequently and he wanted to withdraw
from his compromise which is not permissible.
The
only consolation provided by the learned single Judge to the crippled human
being was that Roshan Deen may adopt other legal remedy under law against the
order dated 19.3.99 and did not mulct him with costs. What is the other remedy
which the appellant could adopt is not even indicated by the learned single
Judge, and we are unaware of any other possible legal remedy which could even
be contemplated by the appellant. The legislative protection conferred on an
injured workman as per Section 17 of the Act, or the decision of this Court in
United India Insurance Co. Ltd. vs. Rajendra Singh and ors. {2000(3) SCC 581}
which were brought to the notice of the learned single Judge, did not make any
impact on him. He sidelined the legislative mandate and bypassed the binding
decision and proceeded to overturn the correct decision rendered by the
Commissioner. Thus, the hands of the High Court had snatched away the solace
provided by the Commissioner to a semi-handless and semi-legless person.
We are
greatly disturbed by the insensitivity reflected in the impugned judgment
rendered by the learned single Judge in a case where judicial mind would be
tempted to utilize all possible legal measures to impart justice to a man
mutilated so outrageously by his cruel destiny. The High Court non-suited him
in exercise of a supervisory and extraordinary jurisdiction envisaged under
Article 227 of the Constitution. Time and again this Court has reminded that
the power conferred on the High Court under Article 226 and 227 of the
Constitution is to advance justice and not to thwart it. {vide State of Uttar Pradesh vs. District Judge, Unnao and ors. (AIR
1984 SC 1401)}. The very purpose of such constitutional powers being conferred
on the High Courts is that no man should be subjected to injustice by violating
the law. The look out of the High Court is, therefore, not merely to pick out
any error of law through an academic angle but to see whether injustice has
resulted on account of any erroneous interpretation of law. If justice became
the byproduct of an erroneous view of law the High Court is not expected to
erase such justice in the name of correcting the error of law.
Here,
look at the fall out of the impugned order. The High Court permitted the revival
of an absolutely unjust order, both on facts and on law, which deprived a
person of his legitimate right to have his claim decided in accordance with the
provisions of the statute. A reading of Section 17 of the Act would amplify the
above position. It reads thus:
Contracting
out. - Any contract or agreement whether made before or after the commencement
of this Act, whereby a workman relinquishes any right of compensation from the
employer for personal injury arising out of or in the course of the employment,
shall be null and void in so far as it purports to remove or reduce the
liability of any person to pay compensation under this Act.
In
this context it is necessary to point out that Section 28 of the Act contains a
provision for registration of agreements. Even the said provision shows that an
agreement should be for disbursement of the amount payable as compensation and
if any such agreement is arrived at, the section requires that a memorandum
thereof shall be sent by the employer to the Commissioner who shall record the
memorandum in a register in the prescribed manner. One of the clauses in the
proviso indicates that if it appears to the Commissioner that an agreement
ought not to be registered by reason of the inadequacy of the sum or amount, or
by reason of the agreement having been obtained by fraud or undue influence or
other improper means, the Commissioner has the power to refuse to record the
memorandum of the agreement. Section 29 contains a mandate that if the
memorandum of any agreement is not sent to the Commissioner, as required by the
preceding section, the employer shall be liable to pay the full amount of
compensation which he is liable to pay under the provisions of this Act.
Section
4 of the Act gives specifications how to quantify the amount of compensation
payable to the workmen.
Clause
(b) of sub-section (1) thereof says: where permanent total disablement results
from the injury, an amount equal to sixty per cent of the monthly wages of the
injured workman multiplied by the relevant factor shall be the amount of
compensation. What is meant by relevant factor in relation to a workman is
defined in Explanation I to the said section. It means the factor specified in
the second column of Schedule IV. If the age of the claimant is as stated by
him in the application, the relevant factor would be a figure nearing 217. We
mentioned the above aspect only for indicating that if the claim of the
appellant is to be granted he would have been benefited by an enormous amount
of compensation when compared with the paltry pelf which his advocate has paid
to him through fraud or deceitful means.
In the
light of the above provisions of the Act the High Court could have, without any
strain, gauged the magnitude of the injustice inflicted on the claimant if the
order of the Commissioner dated 19.3.1999 remained unchanged. Had the
Commissioner refused to recall the said order, would the High Court have
refused to interfere, if the claimant moved the High Court under Article 227 of
the Constitution challenging the said order? It does not require much reasoning
that the answer to that question could only be in the negative. If so, learned
single Judge of the High Court had facilitated miscarriage of justice to be
occasioned by restoring an order passed by the Commissioner on 19.3.1999, which
is ex-facie illegal apart from being unjust and inequitable. Even on the fact
situation the High Court could not have revived the said order because it had
recorded that it was the respondent who represented before the Commissioner
that both parties had arrived at an agreement. We may point out that the very
respondent himself in his reply to the application for restoration of the claim
petition had disowned having made any such statement before the Commissioner.
It was
thus explicitly clear that the agreement reported before the Commissioner which
led to the order dated 19.3.1999 had burgeoned in fraud. It got crystallised
and a chicanery was played on the Commissioner who was misled to believe that
appellant and respondent had entered into an agreement. It is surprising how
learned single Judge missed the factual position that there was no dispute
between the parties, when the application for recall of the order dated
19.3.1999 was considered, that an artifice was disported in the court at least
by somebody in the name of the respondent. This is clear when respondent
himself disowned having stated before the Commissioner that an agreement was
reached.
We may
again extract the relevant portion of the order dated 19.3.1999. The respondent
stated that both parties have arrived at an agreement, therefore, nobody would
come on behalf of the applicant. When the appellant submitted before the
Commissioner on 16.4.1999 when he requested for recalling the said order that
no such agreement had been arrived at, the Commissioner without difficulty
noticed that respondent also submitted to the Commissioner that he did not make
any such statement before the Commissioner on 19.3.1999. The whole
deliberations before the Commissioner on 19.3.1999 smack of a fraud of a
superlative degree played on the Commissioner.
Learned
single Judge seems to have entertained a notion that once a Commissioner
happened to pass an order, however illegal, unjust or inequitable it be, or
even if the Commissioner was convinced that the order was wangled from him by
playing a fraud on him he would be helpless and the parties thereto would also
be helpless except to succumb to such fraud. It was in this context that the
decision cited before the learned single Judge of the High Court required
consideration by him. In United India Insurance Co. Ltd. vs. Rajendra Singh and
ors. (supra) this Court had held thus:
Therefore,
we have no doubt that the remedy to move for recalling the order on the basis
of the newly-discovered facts amounting to fraud of high degree, cannot be
foreclosed in such a situation. No court or tribunal can be regarded as
powerless to recall its own order if it is convinced that the order was wangled
through fraud or misrepresentation of such a dimension as would affect the very
basis of the claim.
We
cannot allow the order of the Commissioner dated 19.3.199 to remain alive even
for a moment. It is the byproduct of fraud and cheating. We, therefore, set
aside the impugned judgment and restore the order passed by the Commissioner on
11.10.1999. As already a long period of six years has been wasted we direct the
Commissioner to expedite the proceedings and dispose of the claim without any
further delay.
Before
disposing of this appeal we deem it necessary to make one more direction which,
in our opinion, is required for completion of the even course of justice. The
Bar Council of the State of Haryana should hold an inquiry into the allegations
made by the petitioner against the advocate Rajpal Panwar of Jagadhri as to
whether he had played a chicanery to defraud the petitioner by obtaining his
thumb impression and paying Rs.9,500/-. We restrain ourselves from making any
observation on the merits of the allegations made against the aforesaid
advocate. We direct the Registry of this Court to forward a copy of this
judgment to the Secretary of the Bar Council of the Haryana. This is to enable
the said Bar Council to adopt such steps as they deem fit and necessary for
disposal of the disciplinary proceedings as against the said Rajpal Panwar,
Advocate, Jagadhri.
J [
K.T. Thomas ]
J [
S.N. Variava ] November
2, 2001.
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