1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APEAL NO. 88 OF 2009 WITH CIVIL APPLICATION NO. 5446 OF 2009 IN WRIT PETITION NO. 1703 OF 2009 Amrut Ginning Factory ...Appellant Versus Smt. Namobai w/o Tanaji Pawar & Ors ...Respondent ..... Shri Uday S. Malte, Advocate for the appellant ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED : 10TH JUNE, 2009. PER COURT :- We have heard learned counsel Mr. Malte for the appellant. There are certain admitted facts, which we are listing herein below. a) The appellant (hereinafter referred to as “the employer” for short) is respondent No.1 in application (WCA. No. 25 of 2000) pending before the Commissioner Workmen’s Compensation @ Learned Judge, Labour Court, Jalgaon. Said application is filed by respondents 1 to 7. b) Respondents 1 to 7 are legal heirs of deceased Tanaji s/o Shrichand Pawar. 2 c) Deceased Tanaji Pawar was working as a labourer with employer at the relevant time. d) On 21.4.2000 deceased Tanaji was on duty with employer. On 21.4.2000 the duty hours of deceased was from 5.00 a.m. till 1.00 p.m. e) On 21.4.2000, while unloading the cotton bales from goods truck within the premises of factory of employer, accident has occurred. In this accident, due to falling of cotton bale on the person of deceased Tanaji, deceased Tanaji initially was rushed to the local hospital and subsequently to the Hospital at Aurangabad. Ultimately, Tanaji died at Aurangabad on account of accidental injuries sustained by him. f) Legal heirs of deceased Tanaji i.e. Respondent 1 to 7 of this appeal, filed application seeking compensation under the provisions of Workmen’s Compensation Act 1923 (hereinafter referred to as “the Act 1923”) for short) on 17.7.2000. g) Exparte decree/award was passed by the learned Commissioner for Workmen’s Compensation against the appellant. Challenging this exparte award, two appeals were carried to this Court. First Appeal No. 373 was lodged by the present appellant i.e. Employer. Another First appeal No. 472 of 2005 was filed by the original applicants i.e. Legal heirs of deceased Tanaji respondent Nos. 1 to 7 for grant of penalty and interest. The Commissioner had awarded an amount of Rs.1,97,060/- to the legal representatives of deceased Tanaji. 3 h) These two appeals i.e. First appeal No. 373 of 2005 and 472 of 2005 were heard together and had been disposed of by the learned Single Judge of this Court by judgment and order dated 4.9.2007. Copy of common judgment and order is at page 100 at Exh. “X”. These two appeals, have been finally disposed of by the learned Single Bench of this court. Learned Single Judge of this Court while disposing of these appeals had directed that the amount deposited by the appellant in First Appeal No.373 of 2005 shall be invested. These directions are from Part-II of the order passed by the learned Single Bench of this Court. The learned Single Bench of this Court has set aside the ex-parte order and restored the application on the file of learned Commissioner. Some directions also have been given by the learned Single Bench of this Court. 2. The claimants/legal representatives of deceased Tanaji had moved an application seeking amendment. Copy of the said application is on record at Exh. “U” (page 88) of the compilation. This application was moved on 17.6.2003. This application,has been opposed by filing reply by the present appellant. This amendment application after hearing the parties is allowed by the learned Commissioner Workmen’s Compensation. The order passed by the learned Commissioner for Workman’s Compensation is on record at Exh. “Z” (page 121). This order has been passed by the learned Commissioner for Workmen’s Compensation on 12.2.2008. This order was challenged by filing writ petition under Article 227 of the Constitution before the learned Single Bench by the 4 present appellant. The order passed by the learned Single Bench of this Court in writ petition No. 1703 of 2009 is annexed at Exh. Z-1 (page 140 of the compilation). By this order on 24.4.2009 the learned Single Bench of this Court dismissed the petition thereby upholding the order passed by the learned Commissioner for Workmen’s Compensation. The order passed by learned Single Bench in writ petition No.1703 of 2009 is challenged in this Letters Patent Appeal. 3. On behalf of the appellant, our attention has been invited to the pleading in the original application filed by the legal representative of deceased employee/workman Mr. Tanaji Pawar. Counsel for the appellant, has also pointed out the pleading in the amendment application, moved on behalf of the legal representative. According to him, admission which was given in the earlier pleading i.e. application filed by the legal representatives is tried to be withdrawn by this amendment which is impermissible. He further points out that after going through the pleading on behalf of the parties in the trial court i.e. before learned Commissioner for Workmen’s Compensation, certain issues were framed, which are at page 81 of the compilation. According to him, affidavit by way of evidence is also produced. Therefore, grievance raised is regarding the withdrawal of the admission given in the earlier pleading by the legal representatives. We have perused judgment of the learned Commissioner, 5 Workman’s Compensation. Learned Commissioner, has considered the submissions and by reasoned order has allowed application seeking amendment to the original pleading. Learned Single Bench of this Court under Article 227 of the Constitution has considered the grievance raised that admission given by the legal representative in earlier pleading has been sought to be withdrawn by way of amendment. This argument has been dealt with by the learned Single Bench of this Court. Learned Single Judge did not accept the submissions made on behalf of the legal representatives. 4. Chapter II of the Act 1923, makes a provision for compensation to the workman. It is mandate of section 3 of the Act 1923, that if a personal injury is caused to a workman by accident arising in the course of his employment, the employer shall be liable to pay compensation in accordance with the provisions of Chapter II of the Act 1923. The determination of the amount of compensation may vary from case to case. Section 4 takes care of determination of amount of compensation. In the case on hand, we are concern with the order passed by the learned Commissioner allowing amendment application which has been upheld by the learned Single Bench of this Court. Section 32 of the Act 1923, empowers the State Government to frame Rules. While parting with the provisions of Act 1923, few more sections are required to be referred. Section 22 of the Act 1923 lays down the form of application claiming compensation arising 6 out of the provisions of Act 1923. Powers have been conferred upon the Commissioner to require further deposit in case of fatal accident. Section 23 provides powers and procedure of Commissioner. The Commissioner appointed by the State Government under the provisions of the Workmen Compensation Act, it has been provided under Section 23 that shall have all powers of the Civil Court under the Code of Civil Procedure 1908, for the purpose of taking evidence on oath and enforcing the attendance of witnesses and compelling production of documents and material particulars. It has been also clarified in Section 23, that the Commissioner shall be deemed to be Civil Court for all purposes of Secton195 and/or Chapter XXVI of Code of Civil Procedure. Appeal has been provided to the High Court in view of the scheme of Section 30 of the Act 1923. Workmen’s Compensation Rules, 1924, are holding the field. So far as procedure is concerned, is a matter of part V of the Rules 1924. Rule No. 41 is relevant, in the facts and circumstances of the case on hand. This Rule 41 provides that certain provisions of C.P.C. 1908 to apply to the proceedings under provisions of the Act 1923. Provisions of First Schedule to the C.P.C. 1908 and specifically those provisions contained in Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII, Rule 3 to 10; Order XVI, Rule 2 to 21; Order XVII and Order XVIII Rules 1 and 2 have been made applicable to the proceedings before the Commissioner. 7 5. It has been submitted on behalf of the appellant that the provisions contained in First Schedule of the Code of Civil Procedure enumerated under Rule 41 of Rules of 1924 are made applicable and order VI Rule 17 is not mentioned in this Rule No.41. 6 Before we advert to the applicability of the Order VI, Rule 17 of Code of Civil Procedure 1908, we shall consider the nature and objectives as well importance of civil procedural law. This branch of law is a separate and distinct branch which exercises a pervasive influence over all other branches of law, except criminal law and procedure. It comprehends the entire body of civil law, including the practice and procedure of the courts which regulates the machinery and governs the administration of civil justice. It extends to every legal or equitable claim, right, relief of remedy properly brought before any court or tribunal, either inferior or superior, at first instance or on appeal. Such authority or the court, however, must have power and jurisdiction to recognize, determine or adjudicate upon such claim or right and to award and enforce appropriate relief or remedy. This body of law including such practice and procedure is vast in the scope and variegated in character and subject matter. This branch of law forms an indispensable part of the machinery of justice and operates as essential tool for enforcing legal rights and claims, for redressing or preventing the legal wrongs. In short, civil procedural law is a necessary legal and social instrument 8 for attainment of what Lord Brougham called, “Justice between man and man”. This branch is pervasive in the sense that it is ubiquitous and inevitably enters in to every other branch of law except the criminal law. It provides the appropriate machinery for access to the courts in order to obtain the appropriate relief or remedy and to sustain and uphold the rules of substantive law. All legal relations, transactions, happenings and events may ultimately have to be determined and adjudicated upon by the appropriate courts or tribunals, according to the applicable rules of law and the methods and machinery for securing this determination or adjudication by this branch of law. Sir Maurice Amos has rightly said that, “Procedure lies at the heart of the law”. This expression, ‘civil procedural law’, is used in contradiction to ‘criminal’. The essence for this division arises largely from the fact that broadly speaking the primary objective of procedure is remedial, to make good civil wrongs by compensation, restitution or satisfaction and if necessary, by restraint by appropriate relief. 7 The first uniform Civil Procedure Code was enacted for British India in 1859. However, it was not applicable to the Supreme Courts in the presidential town and presidency Small Causes Courts. This code has suffered series of amendments. Code of Civil Procedure 1877 was made enforceable. It was 9 experienced that several amendments were necessary. About 130 sections of the Code were amended in the year 1879 i.e. within a span of about two years. In 1882, amendments were proposed and decision was taken by the then Government to have a complete recast of the Code. Outcome was the enactment of Code of Civil Procedure, 1882. Said Code was found too rigid for meeting the varying needs of different areas of the then British India. There was conflict of judiciary on the interpretation of the Code. On this premise, Act V of 1908 i.e. Code of Civil Procedure was enacted with effect from 31.3.1908. 8. The Code is divided in two parts. First, the body of the Code containing 158 sections and “First Schedule” containing 51 orders, various rules and forms. The sections deal with the provision of substantive nature laying down general principle of jurisdiction. The “First Schedule” on the other hand relates to procedure, method, manner and mode in which the jurisdiction may be exercised. The body of the Code ‘Sections” is fundamental and can be altered, modified or amended only by a competent legislature. “First Schedule” prescribes procedure and can be amended or altered by the High Courts. But once the rules are amended they become part of the Code for all purposes as if enacted in the Code. Substantive provisions of the Code, are fundamental and hence very important but importance of the procedural provisions cannot be under estimated. Therefore, both must be read harmoniously so as to subserve 10 and advance the cause of justice. In substance, part I of the Code deals with litigation in the simplified cases. From the time plaintiff takes a decision to file the suit, selects his forum, time, having obtained a decree proceeds to execute it. Most of the important stages of the trial are left to be dealt with by rules in the order contained in the First Schedule. It is well settled principle of interpretation of statute that all the provisions of the Code should be interpreted harmoniously but if the rules are inconsistent with the sections, the former will have to give a way to the later. It is apposite to recount the observations of Mr. Bose, J. in the leading case of Sangramsingh Versus Election Tribunal that, “Code of procedure is something designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties, not a thing to trip the people. It is for furtherance of justice not to frustrate it. 9. The Workman’s Compensation Act, so far as determination or award of compensation is concerned can be considered to be statute from the branch of civil law. The provisions of C.P.C. have not been made applicable to the proceedings of the lodging, entertaining and deciding the cases under the provisions of Act 1923 in its entirety. However, Sub-Section (2) of Section 19 provides that the jurisdiction of the civil court, has been barred to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Commissioner to enforce any liability incurred 11 under the Act 1923. Under the Rule making powers, Rules 1924 have been made. Under Rule 41 specific orders have been mentioned, which are enumerated in Rule 41 itself. Language of Rule 41 however, is material. It has been provided under Rule 41 that save and otherwise expressly provided in the Act or these Rules the following provisions of 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 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioner, in so far as they may be applicable thereto. In our view, provisions laid down under Order VI Rule 17 has not been taken away, under this Rule 41 from its application to the proceedings under the provisions of the Workmen’s Compensation Act being the statute from the branch of civil law. The object of the legislature while enacting Rule 41 seems to be to strengthen the learned Commissioner to decide and dispose of the proceedings expeditiously. If we take a look to the order V of C.P.C. It is clear that order V deals with issue of service summons. In this Order V Rule 9 to 13, are pertaining to delivery of summons by Court. Rule 15 to 30, are in respect of summons and these Rules have been provided with detail scheme considering various circumstances. Order IX, pertains to appearance of the parties and and consequences of non appearance. Order XIII, refers to production, impounding and return of documents. In Order XIII, only two Rules have been mentioned i.e. 12 Rule Nos. 1 and 2. Thus, in our view, Rule 41 has been enacted to achieve an object of speedy disposal of the proceeding under the provisions of Act 1923. This Act is beneficial piece of legislation to a particular category i.e. injured workman and/or legal representatives of the deceased workman, who has been injured or died in the course and out of the nature of employment, as contemplated under Section 3 of the Act 1923. With this analogy, in our view, Order VI Rule 17, needs to be considered, as the provision which applies for amendment to the pleading of the proceedings, lodged under the provisions of Act 1923; for compensation. In the interest of justice, in our opinion, the learned Commissioner has justifiably allowed the amendment application. 10. Order VI Rule 17 has been amended, by recent amendment by the legislature, which has been made enforceable from 1.7.2002. In the case on hand, we have noticed that the application has been filed before the enforcement of amendment. While considering application for amendment parameters of Order VI Rule 17 before enforcement of amendment dated 1.7.2002 needs to be considered. We have to take a notice of the judgment of the Supreme Court reported in the case of Ajendraprasadji N. Pande Vs. Swami Keshavprakeshdasji N., reported in 2007 AIR SCW 513. 13 11. The order passed by the learned Commissioner for Workmen’s Compensation was subject matter of challenge in the petition under Article 227 of the Constitution of India before the learned Single Bench of this Court. Ordinarily, the petitions are filed in this Court under Article 226 and 227 of the Constitution of India. Mentioning of Article by the petitioner is of little importance. Learned Commissioner for Workmen's Compensation has been appointed by the State Government under the provisions of Act 1923. It seems to be a case wherein the powers have been vested with the learned Judge of Labour Court, Jalgaon. Considering the nature of proceedings filed, it is apparent that the petition filed by the present petitioner was under Article 227 of the Constitution before the learned Single Bench. Learned Single Bench, after hearing both the parties, passed order under supervisory jurisdiction, which is challenged in this Letters Patent Appeal. The High Court in the writ petition is principally concern with the decision making process and not decision itself. In our view, judgment of the learned Single Bench need not be interfered. This Letters Patent Appeal, in our view, is devoid of substance. Earlier, the learned Single Bench had directed early disposal of the matter i.e. within six months from the date of passing of common order on 4.9.2007. Now, we are not inclined to give fresh directions to the learned Commissioner, since he is already under the directions of this Court. We have not entered into the merits of the case. Letters Patent Appeal stands dismissed with no order as to costs. 14 12. In view of dismissal of Letters Patent Appeal, civil application No. 5446 of 2009 stands disposed of. 13. At this stage, Mr. Malte, learned counsel for the appellant seeks suspension of this order because, according to him, before the learned Commissioner, under the directions of this Court, proceeding is likely to come up on 18.6.2009. Hence, we suspend our order till 21st July 2009. *****