RAMNIKLAL A GANDHI Vs. R R BHAVSAR

JUDGEMENT

(1.) THIS purports to be an appeal under Section 30 of the Workmen's Compensation Act, 1923, hereinafter referred to as 'the Act'.

(2.) THE 5th Respondent to this appeal is the widow of Sayanna Lachiah who expired on 19 June, 1982. It is alleged that this tragedy took place in the course of an employment wherein Sayanna was serving the appellant and respondents 3 and 4 to this appeal. The widow's application for compensation under the Act was heard by Mr. V. V. Savaji designated as the Commissioner for workmen's Compensation and Judge of the 2nd Labour Court, Bombay. The said learned Judge after hearing parties passed an order, the operative part wherof reads thus: "the application is allowed. Opposite parties Nos. 1, 2 and 3 (i. e. , appellant and respondents 3 and 4 to this appeal)do pay amount of Rs. 19,200/- plus penalty of 25% on this amount i. e. , Rs. 4,800/- (minus Rs. 10,000/- which the applicant has received) - Rs. 14. 000/ - to the applicant". This order was passed on 7 February, 1989. Respondent 5 moved an application for recovery of the amount coercive process to be executed by the Collector of Bombay to whom a recovery certificate had to be issued. This application is known as 'g application'. It was against the appellant and respondents 3 and 4. Mid-way respondent 5 expressed a desire that the recovery be proceeded against only the appellant. The Registrar of the Workmen's Compensation Commissioner's office pointed out that this request of the 5th respondent could not be granted having regard to the order of Mr. Savaji. Nothing daunted, the Commissioner Mr. R. R. Bhavsar entertained the application and passed an order on 27 April, 1989 which reads thus :-Even though the Commissioner has passed the order holding all the opponents responsible, it is the choice of the applicant to execute the order against one or all of them. As the applicant wants to execute the order against one of them only viz. Shri R. A. Gandhi (appellant) informed the collector immediately. Thus execution should be proceeded against R. A. Gandhi only". The present appeal was lodged on 31 August 1989. In addition to impleading the parties to the application, the appellant has arraigned Messrs Bhavsar and Savaji as respondents to the appeal. It is contended that the order passed on 27 April, 1989 wipes out the order passed on 7 February 1989. Because the order passed on 7 February 1989 has been wiped out and the order passed on 27 April, 1989 is ex-facie wrong, the appeal is to be allowed. I have not been able to understand the submission that order passed on 27th April, 1989 has the effect of wiping out the substantive order made on 7th February 1989. In fact that latter order is one in the course of execution, whereas the substantive order is that dated 7th February 1989. That the order in execution is slightly in excess of the powers vested in the Commissioner or at variance with the order passed on 7 February 1989, it does not have the effect of wiping out the order passed on 7 February 1989. Section 30 prescribes a period of 60 days for the preferring of an appeal. Construed thus, the order passed on 27 April 1989 alone would be in limitation and that too because of the intervention of the summer vacation of this Court. In no event can it be said that the limitation for the order passed on 7 February 1989 has not expired. The strange contention that the order made on 27 April 1989 revives the right of the appellant to challenge the order passed on 7 february 1989 has merely to be stated to furnish its refutation. I hold that the order passed on 7 february 1989 is binding upon the parties and in particular the appellant, because it was not assailed in appeal within the prescribed period of 60 days.

(3.) DURING the order passed on 27 April, 1989, I must express my surprise at the doings of the commissioner. In the normal course the application for the recovery should have been assigned to the very Judge who has passed the first order. What the Commissioner seems to have done and that too without notice to the affected party viz. , the appellant, is to enable the 5th respondent to restrict her right of recovery of the compensation to one of the guilty parties-exonerating the remaining two who have been found equally liable in the verdict to the principal application. By no stretch of imagination could such an order be passed administratively. The order dated 27 April, 1989 has to be, and is hereby set aside. Let the recovery proceedings from the very inception go back to Mr. Savaji or whoever has succeeded him as a Judge of the 2nd Labour Court. In the event of no successor having been appointed to that Court, the recovery application be placed before any other Judge of the Labour Court excluding Respondent 1 R. R. Bhavsar. Costs in appeal as incurred, parties to appear before the 2nd Labour Court on 18 October, 1989.