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CASE NO.:

Appeal (civil) 7421 of 2001

PETITIONER:

ROSHAN DEEN

Vs.

RESPONDENT:

PREETI LAL

DATE OF JUDGMENT: 02/11/2001

BENCH:

K.T. Thomas & S.N. Variava

JUDGMENT:

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

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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.

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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.

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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

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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

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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

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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.