# Mohammad Ikram and Anr v. Deputy Labour Commissioner & Anr

- **Citation:** (2013) 2 ILRA 828
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-07
- **Case number:** Ors. in Special Appeal No. 164 of 2012
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-ikram-and-anr-v-deputy-labour-commissioner-anr-42615
- **Pages:** 4

## Headnote

Workman Compensation Act.- Section 23
readwith Rule 41 of the Rule-Power of
Review
whether
can
Commissioner
workmen
compensation
review
its
earlier order-held-'No' unless allegation
of
fraud
or
misrepresentation-orderquashed.

Held: Para-11
A plea of misappreciation of evidence
was raised. No plea of fraud was alleged
by
the
owners.
The
Court
is
consequently, of the view that in the
absence of a plea of fraud being raised, it
was not possible for the Commissioner to
reappreciate the entire arguments or
reconsider the matter de novo or review
its own judgment.

Case Law discussed:
2009(120)FLR; AIR 2000 SC 1165

## Text

828 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
197 of the Act which power is conferred
under sub-section (4) of Section 198 of
the Act.

11. In view of the foregoing
discussions, I am of the considered
opinion that the order impugned dated
11.12.2011 passed by the Additional
Commissioner
(Administration),
Moradabad, respondent no.2 in Revision
No. 05/12-13 (Shashi Pal Singh and
others. Vs. Hari Om and others) is
without jurisdiction. It is also well settled
that an order without jurisdiction is a
nullity and no legal consequences can
flow such orders reference. Reference
may be made to the decisons of the Apex
Court in Managing Director, Army
Welfare
Housing
Organization
vs.
Sumangal Services Pvt. Ltd. (2004)9
SCC 619, Sarup Singh and Anr. vs.
Union of India and Anr. (2011) 11 SCC
198 and a Division Bench decision of this
Court in the case of Committee of
Management
Shri
Jawahar
Inter
College and Anr. vs. State of U.P. and
Ors. in Special Appeal No. 164 of 2012
decided on 25.1.2012 in which it has been
held that the order without jurisdiction is
a nullity.

12. In view of the foregoing
discussions the impugned order dated
11.12.2012 passed by the Additional
Commissioner
(Administration)
Moradabad Division, Moradabad cannot
be sustained and it is, hereby, quashed.
The writ petition succeeds and is allowed.
However, allowing the writ petition and
setting aside the order passed by the
Additional
Commissioner
will
not
preclude the respondents to avail the
remedy
to
file
an
application
for
cancellation of lease in accordance with
law. In case such an application is filed
that be considered and decided in
accordance with law on its own merit
expeditiously.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 15504 of 2011

Mohammad Ikram and Anr. ...Petitioners
Versus
Deputy Labour Commissioner & Anr..

 ...Respondents

Counsel for the Petitioner:
Sri A.K.S. Bais

Counsel for the Respondents:
C.S.C., Sri Vivek Singh

Workman Compensation Act.- Section 23
readwith Rule 41 of the Rule-Power of
Review
whether
can
Commissioner
workmen
compensation
review
its
earlier order-held-'No' unless allegation
of
fraud
or
misrepresentation-orderquashed.

Held: Para-11
A plea of misappreciation of evidence
was raised. No plea of fraud was alleged
by
the
owners.
The
Court
is
consequently, of the view that in the
absence of a plea of fraud being raised, it
was not possible for the Commissioner to
reappreciate the entire arguments or
reconsider the matter de novo or review
its own judgment.

Case Law discussed:
2009(120)FLR; AIR 2000 SC 1165

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Two sons of the petitioner died
during the course of employment on 20th
2 All] Mohammad Ikram and Anr. Vs. Deputy Labour Commissioner & Anr
829
October, 2008. It is alleged that the death
occurred on account of leakage of a gas in
the factory. A first information report was
also lodged and the incident was also
reported in the newspapers. The petitioner
filed a claim application before the
Commissioner Workmen's Compensation
for
a
sum
of
Rs.8,85,360/-.
The
Commissioner after considering the matter
gave an award dated 7th December, 2010
allowing the claim and awarding a sum of
Rs.4,42,740/-.
The
employer,
being
aggrieved, by the said award filed a recall
application, which was allowed by an order
dated 14th February, 2011 and, by the same
order, the claim of the petitioner was also
rejected. The claimants, being aggrieved, by
the said order has filed the present writ
petition.

2. Heard Sri A.K.S. Bais, the learned
counsel for the petitioners and Sri Vivek
Singh, the learned counsel for the
respondent.

3. The learned counsel for the
petitioner submitted that there is no
provision
under
the
Workmen's
Compensation Act for review of an order
passed by the Commissioner Workmen's
Compensation and, consequently, the
impugned order is patently without
jurisdiction and is liable to be quashed.

4. On the other hand, it was
contended that the authority has the
inherent power to recall its order and in
any case, where fraud is played, the
authority can always review its order.

5. In order to appreciate the rival
contention of the parties, it is necessary to
have a look into certain provisions of the
Workmen's Compensation Act. Section
23 of the Act read with Rule 41 of the
Workmen's Compensation Rules makes
certain provisions of Code of Civil
Procedure
applicable
to
proceedings
before the Commissioner. For facility,
Section 23 of the Act and Rule 41 of the
Rules are extracted hereunder:-

"23. Powers and procedure of
Commissioners.-
The
Commissioner
shall have all the powers of a Civil Court
under the Code of Civil Procedure, 1908
(5 of 1908), for the purpose of taking
evidence
on
oath
(which
such
Commissioner is hereby empowered to
impose) and of enforcing the attendance
of
witnesses
and
compelling
the
production of documents and material
objects, [ and the Commissioner shall be
deemed to be a Civil Court for all the
purposes of [section 195 and of Chapter
XXVI of the Code of Criminal Procedure,
1973 (2 of 1974)]].

41. Certain provisions of Code of
Civil Procedure, 1908, to apply.- Save
as otherwise expressly provided in the Act
or these Rules the following provisions of
the 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
Commissioners, in so far as they may be
applicable.

Provided that--

(a) for the purpose of facilitating the
application of the said provisions the
Commissioner may construe them with
such
alterations
not
affecting
the
substance as may be necessary or proper
to adapt them to the matter before him;
830 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(b) the Commissioner may, for
sufficient reasons, proceed otherwise than
in accordance with the said provisions if
he is satisfied that the interests of the
parties will not thereby be prejudiced."

6. A perusal of the aforesaid
provision indicates that only certain
provisions of the Code of Civil Procedure
are applicable to proceedings before the
Commissioner Workmen's Compensation.
Section 114 or Order XLVII of the Code
of Civil Procedure are not applicable,
which relates to review. These provisions
have not been included and, consequently,
the Court is of the opinion that the power
of review has been specifically excluded
under Section 23 of the Act read with
Rule 41 of the Rules.

7. Rule 32(2) of the Rules provides
that the Commissioner after pronouncing
the decision has no power to make any
addition or alteration in the judgment
other than correction of a clerical or
arithmetical mistake arising from any
accidental slip or omission. For facility,
the
said
provisions
is
extracted
hereunder:-

"32(2). The Commissioner, at the
time of signing and dating his judgment,
shall
pronounce,
his
decision,
and
thereafter no addition or alteration shall
be made to the judgment other than the
correction of a clerical or arithmetical
mistake arising from any accidental slip
or omission."

8. From the aforesaid provisions, the
Court is of the opinion that the
Commissioner has the power to correct
clerical or arithmetical mistake arising
from accidental slip or omission in his
judgment but has no power to review his
judgment. Since there is no statutory
provision conferring any power of review
on
the
Commissioner
under
the
Workmen's Compensation Act either
specifically or by necessary implication,
the Commissioner has no power to review
his own decision.

9. In Raman Agnihotri Vs.
Commissioner
Workmen's
Compensation, Kanpur and others,
2009 (120) FLR 967 the Court held that
the
Commissioner
Workmen's
Compensation has no power to review his
judgment.

10. The learned counsel for the
respondent has relied upon a decision in
United India Insurance Com. Ltd. Vs.
Rajendra Singh, AIR 2000 SC 1165
wherein the Supreme Court held that the
Motor Accident Claims Tribunal had the
power to review its own order where
fraud was played upon it.

11. There is no quarrel with the
aforesaid proposition. No
Court
or
Tribunal can be regarded as powerless to
recall its own order, if it is convinced that
the order was obtained by fraud or
misrepresentation. In the instant case,
there is no plea of fraud being played. The
Court finds that the Commissioner while
passing the first order allowing the claim
had considered all the evidence and the
submission of the claimants as well as the
owner and thereafter gave an award. The
recall application was filed by the owners
on the ground that certain facts and
evidence had not been considered. A plea
of misappreciation of evidence was
raised. No plea of fraud was alleged by
the owners. The Court is consequently, of
the view that in the absence of a plea of
fraud being raised, it was not possible for
the Commissioner to reappreciate the
2 All] Ram Roop Parasar Vs. C.A.T. Allahabad & Ors.
831
entire arguments or reconsider the matter
de novo or review its own judgment.

12. In the light of the aforesaid, the
order of the Commissioner dated 14th
November, 2011 allowing the recall
application and rejecting the claim of the
petitioner is patently illegal and without
jurisdiction, which cannot be sustained
and is quashed.

13. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2013

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE VIPIN SINHA, J.
Civil Misc. Writ Petition No. 19509 of 2005

Ram Roop Parasar

 ...Petitioner
Versus
C.A.T. Allahabad & Ors. ...Respondents
Counsel for the Petitioner:
Sri Satya Prakash

Counsel for the Respondents:
S.S.C., Sri Rakesh Sinha

Central Civil Service Rules-1972- Rule
68(1)-Interest on delay in payment of
post retirel benefit-petitioner retired on
31.01.1997-charge sheet submitted on
06.01.1997
and
03.04.1997
enquiry
officer found all allegation baselessmatter referred to higher authoritieswho decided to dropped disciplinary
proceeding on 30.10.2008-benefit given
in Jan 2001 claim of interest denied-as
petitioner not exonerated but proceeding
dropped-held-misconceived-when
enquiry
officer
recommended
for
exoneration
which
refused
drop
of
proceeding-petitioner
entitled
for
interest-matter remitted back for fresh
consideration.

Held: Para-29
In view of the above discussion, we are
of the opinion that the Writ Petition
deserves to be allowed, and the order
dated 1.11.2004 passed by the Tribunal
is liable to be quashed, and the matter is
liable to be remitted to the Tribunal for
fresh consideration of the case in the
light of the observations made above.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present Writ Petition has
been filed by the petitioner under Article
226 of the Constitution of India, interalia,
praying for quashing the order dated
1.11.2004 (Annexure-9 to the Writ
Petition)
passed
by
the
Central
Administrative
Tribunal,
Allahabad
Bench,
Allahabad
(in
short
"the
Tribunal") as also the order dated
11.5.2011 (Annexure-5 to the Writ
Petition)
passed
by
the
Deputy
Commissioner, Central Excise Division-I,
Kanpur communicated to the petitioner by
the
communication
dated
5.7.2001
(Annexure-6 to the Writ Petition) by the
Joint
Commissioner
(P&V),
Central
Excise, Kanpur. Further prayer has been
made for directing the respondents to pay
interest over the retiral benefits of
pension, death-cum-retiral gratuity and
leave encashment and also to pay a sum
of Rs. 18,863/- against commutation
value.

2. It appears that at the relevant
time, the petitioner was posted as
Superintendent, Customs and Central
Excise in Division-I, Central Excise,
Range-3, Kanpur. The petitioner retired
from service on 31.1.1997. It further
appears that on account of an Audit
Objection dated 28.9.1994 by the Senior
Deputy
Accountant
General,
U.P.
Allahabad regarding loss of revenue ,