SOMAN Vs. COMMISSIONER FOR WORKMENS COMPENSATION

JUDGEMENT

(1.) The petitioner challenges Ext. Pl order by which the Workmen's Compensation Commissioner directed the applicant to be present before the Commissioner for cross examination by the second opposite party. According to the petitioner, he cannot be compelled to be present before the Court as a witness and if he is not voluntarily coming, it is open for the authorities to dispose of the case in accordance with law. On the other hand the learned counsel for the respondent submits relying upon the judgment of Rajasthan High Court in Asstt. Engineer, PHED, Bikaner, v. Mohammed Hussain, 2000 LabIC 514 that there is an obligation on the part of the complainant to be present before the Workmen's Compensation Commissioner for giving evidence and in that view of the matter, the Commissioner was justified in passing the impugned order. The facts involved in the said case indicates that an ex-parte award was passed by the Commissioner which was set aside and there was a direction to reconsider the matter. While doing so, it is stated that no oral evidence was recorded in the case and no order for taking evidence on affidavits also was made. Only on the filing of an affidavit by the claimant, the case was posted for final arguments and decided. In the said case, it is therefore clear that an affidavit was filed by the claimant and since an opportunity was not granted for the respondents to cross-examine the said claimant on the basis of the averments made in the affidavit, the said Court found that the award is liable to be set aside. It is also stated in the said judgment that there is violation of the procedure prescribed u/S. 25 of the Workmen's Compensation Act (presently Employees Compensation Act and hereinafter referred as the Act).

(2.) I do not think that there is any provision in the Act or the Rules framed thereunder which will help the respondent in insisting that the petitioner should be present before Workmen's Compensation Commissioner for being cross-examined. The petitioner admittedly has not given any evidence either in the form of oral evidence or in the form of affidavit as evidence. The initial statement taken by the Commissioner under R. 23 of Workmen's Compensation Rules (hereinafter referred as the Rules) is only for the purpose of issuing the process. The manner of recording the evidence under R. 23 is covered by S. 25 of the Act. As per R. 24 the Commissioner can reject the application. If it is not dismissed the Commissioner can call upon the applicant to adduce evidence, under R. 25 and if not satisfied he can dismiss the application. S. 23 deals with the power of Commissioner to take evidence. Notice to opposite party is contemplated only if the application is not dismissed as provided under R. 24 or 25. Notice is issued to opposite party as per R. 26 and they are only called upon to adduce evidence of their defences as provided under R. 27. Thereafter issues are framed as per R. 28. It is at the stage of considering the disputed question of fact that trial is conducted as provided under R. 29. At that stage if the petitioner is not coming to give evidence, it is for him to take the risk as far as his claim is concerned and the statement given by him under R. 23 will not save him if such facts are disputed. The question is whether the Commissioner can insist the claimant to appear and give evidence at the request of opposite party. Going by the provisions of Ss. 23, 24 and 25 of the Act and the Rules, I do not think that the Commissioner can insist for the presence of the petitioner for being cross-examined at the request made by the opposite party especially when he has failed to adduce any evidence orally or in the form of affidavit when issues had come up for trial In that view of the matter, I am of the view that Ext. P1 is illegal and is liable to be set aside.