1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 1704 of 2010 Judgment reserved on: 29.7.2010 Date of decision: 20.08.2010 Janesh Gupta ..Petitioner Versus State of H.P. and another ..Respondents ______________________________________________________ Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ? Yes For the petitioner: Mr. Praneet Gupta, Advocate For the respondents: Mr. R.K. Sharma, Sr. Addl. A.G. ____________________________________________________________ Justice Kurian Joseph, C.J. (Oral) What is the consequence of the Workmen’s Compensation Act, as amended by Act 45 of 2009, in the matter of appointment of Commissioners is the issue arising for consideration in this case. The writ petition has been filed with the following prayers:- (I) “Respondents may be directed to appoint such persons as “Commissioners” workmen’s Compensation as envisaged in sub-section (1) of Section 20 of Workmen’s Compensation Act, {Act No. 45 of 2009} as per Annexure P-1. (II) Quash the Annexure P-2 i.e. Notification, dated 22.8.205 & respondents may be directed to withdraw immediately all pending cases under the Workmen’s Compensation Act from the officers as mentioned in Annexure P-2 as officer’s mentioned in Annexure P-2 officers lack requisite qualification to hold such office.” 2 2. The Workmen’s Compensation Act, 1923 provides for payment of compensation to the workmen and their dependants in the case of injury by industrial accidents including certain occupational diseases arising out of and in the course of employment resulting in death or disablement. The Act applies to certain railway servants and persons employed in hazardous employments such as factories, mines, plantations, mechanically propelled vehicles, construction work, etc., specified in Schedule II of the Act. However, the Act is not applicable to the employees who are covered under the Employees’ State Insurance Act, 1948. The second National Commissioner (Labour) set up in the year 2002 had proposed a few changes in the Act and based on the said recommendations, certain amendments were introduced as per the Workmen’s Compensation (Amendment) Act, 2009. It received the assent of the President of India on 22nd December, 2009 and the Act was notified in the Gazette on 22nd December, 2009. Among the various amendments, we are concerned with the amendment introduced in Section 20 of the Act. 3. Section 20, as it originally stood, read as follows:- “20. Appointment of Commissioners.- (1) The State Government may, by notification in the Official Gazette, appoint any person to be a Commissioner for Workmen’s Compensation for such area, as may be specified in the notification. (2) Where more than one Commissioner has been appointed for any area, the State Government may, by general or special order, regulate the distribution of business between them. (3) Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any matter 3 relevant to the matter under inquiry to assist him in holding the inquiry. (4) Every Commissioner shall be deemed to be a public servant within the meaning of the Indian Penal Code.” 4. The amended provision which came into force on 18th January, 2010, reads as follows:- “8. Amendment of Section 20.- In Section 20 of the principal Act, in sub section (1), after the words “appoint any person”, the words “who is or has been a member of a State Judicial Service for a period of not less than five years or is or has been for not less than five years an Advocate or a pleader or is or has been a Gazetted Officer for not less than five years having educational qualifications and experience in personnel management human resource development and industrial relations” shall be inserted.” 5. In terms of un-amended provisions, the State of Himachal Pradesh had appointed Commissioners under Section 20(1) of the Act. The Notification, dated 22.8.2005 (Annexure P-2) reads as follows:- “In supersession of all previous Notifications on the subject and in exercise of the powers conferred by sub-section (I) of Section 20 of the Workmen’s Compensation Act, 1923 (VIII of 1923), the Governor, Himachal Pradesh is pleased to appoint the following officers as “Commissioner” for Workmen’s Compensation in respect of the cases of “INJURED WORKMEN” for the purpose in HImachal Pradesh from the date of issue of this Notification:- Designation Jurisdiction All Sub-Divisional Officers (Civil) in HImachal Pradesh. Within their respective jurisdiction in respect of all workmen other than 4 the workmen of P.W.D., M.P.P., Electricity Board, I.P.H. and Land Acquisition Officers. All Land Acquisition Officers in Himachal Pradesh Within their respective jurisdiction in respect of workmen of P.W.D., I.P.H., Electricity Board and Multipurpose Projects. 6. As rightly submitted by the petitioner, who is an Advocate practising before this court, the Commissioners appointed by Notification, Annexure P-2, do not satisfy the requirements in terms of the amendment. However, the State still defends the appointments made as per Annexure P-2 in the year 2005 stating that the Sub Divisional Officers are Gazetted Officers and they are also vested with the powers of Sub Divisional Magistrates under the Criminal Procedure Code. It is thus stated in the reply as follows:- “It is humbly submitted that Sub Divisional Officers (Civil) in the State are Officers from the Indian Administrative Services/Himachal Pradesh Administrative Services. They are Gazetted Officers and ordinarily are posted as such after proper training and field experience in personnel management, human resources development and Industrial relations. These officers are also vested with powers of Sub-Divisional Magistrate under Cr. P.C. as well as Sub-Divisional Collectors under the Revenue Laws. Therefore, they are discharging quasi-judicial and Magistraterial duties as Sub-Divisional Officers(Civil) already and there is no reason to believe that they are unsuitable or unqualified to discharge the duties of a Commissioner under Workmen’s Compensation Act. The Officers of Sub-Divisional Officers (Civil) and Land Acquisition Officers are also public Officers and they are discharging public duties of substantive nature. Nevertheless, the exercise to review the existing system is underway and in case any particular officer is found not qualified to discharge the duties of a 5 Commissioner under the Act ibid, suitable action shall be promptly initiated.” 7. We are afraid, the stand of the State cannot be justified. The Sub Divisional Officers may be vested with several powers under various statutes. But, for them to act as Commissioners under the Workmen’s Compensation Act, it is not enough that they be Gazetted Officers with training in personal management. The requirement is that they should be Gazetted Officers for not less than five years having educational qualifications and experience in Personal Management, Human Resources Development and Industrial Relations. It is not mere training or experience. The requirement is of educational qualification as well. There cannot be a presumption that a Sub Divisional Magistrate would possess the qualifications, as prescribed under the Workmen’s Compensation Act to be a Commissioner. Even if the State wants to confer such power on a Sub Divisional Officer, it has to be first examined as to whether that particular Officer holding the office possesses the prescribed educational qualification in Personal Management, Human Resources Development and Industrial Relations and experience apart from the five years tenure as a Gazetted Officer. That officer should have both the qualifications and experience in those areas. The State has no case that all the Sub Divisional Officers are having the prescribed qualifications, as above. Therefore, it is declared that the Commissioners appointed, in terms of Annexure P-2, namely Sub Divisional Officers (Civil) in Himachal Pradesh and Land Acquisition Officers in Himachal Pradesh are not empowered to act and function as Commissioners under Section 20 of the Workmen’s Compensation Act, 1923. The State has to appoint Commissioners in terms of Section 20(1) of the Act, as amended 6 in the year 2009. However, it is clarified that declaration, as above, shall not affect the orders already passed or action taken by the Commissioners as per Annexure P-2 after the introduction of the amendment to the Workmen’s Compensation Act on 22nd December, 2009, in view of Section 6 of the H.P. General Clauses Act, 1968, till date. The writ petition stands disposed of, so also the pending application(s), if any. (Justice Kurian Joseph), Chief Justice August 20, 2010(K) (Justice Rajiv Sharma), Judge