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M. Nagaraju v/s New India Assurance Company Regional Office, Rep. by its Manager, Bangalore & Others

    Writ Appeal No. 3679 of 2019 (S R)

    Decided On, 24 May 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE B.V. NAGABATHNA & THE HONOURABLE MR. JUSTICE HANCHATE SANJEEVKUMAR

    For the Appellant: D.R. Ravishankar, Advocate. For the Respondents: R1, O. Mahesh, R2, B.H. Sunitha, Advocates.



Judgment Text

(Prayer: This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, praying to set aside the orders passed by the learned Single Judge in Writ Petition No. 17485/2018 dated 08.02.2019.)

1. Though, the appeal is listed to consider IA No. 3/2019 seeking condonation of delay of 191 days in filing the appeal, on hearing learned counsel for the respective parties and on condoning the said delay, with the consent of learned counsel for the respective parties, it is heard finally.

2. Briefly stated the facts are that the appellant herein at the relevant point time was discharging his duties as a Commissioner for Workmen’s Compensation, Bengaluru City, Division-III, Bannergatta Road, i.e. during the period from 12.11.2001 to 31.10.2009. During the said period, he decided the claim petition in proceedings bearing No. CWC-3/NFC/CR.5/2006 and passed in award on 20.08.2008, in which he had awarded compensation of Rs.4,54,251/- with interest at 12% per annum to be paid by the first respondent-insurance company. Being aggrieved by the said award, the Insurance Company had preferred MFA No. 2451/2009 before this Court, which was allowed by judgment dated 9.3.2011 by this Court, during the course of which, certain observations in the form of strictures were passed against the appellant herein. As per the directions issued in that judgment, an enquiry was conducted by Sri. B. Dayanand, Inspector General of Police and the Additional Director General of Police (Traffic), Bengaluru City and a report was submitted by him in proceedings bearing No. 57/Offence/EOD/CID/2013 dated 15.12.2014. A copy of the said report was placed before this Court. But the said report was not accepted and instead, this Court directed that prosecution be instituted to commence against the appellant herein. Since the observations and strictures passed in MFA No. 2451/2009 and order dated 16.3.2018 was also passed by the very same learned Judge without hearing the appellant, writ petition No. 17485/2018 was filed by him assailing, inter-alia, and observations in the nature of strictures and directions issued against the appellant herein in MFA No. 2451/2009 disposed of on 16.3.2018. The said writ petition was dismissed by the very same learned Single Judge. Being aggrieved, this appeal has been preferred.

3. We have heard learned counsel for the appellant and the learned counsel for the first respondent and perused the material on record.

4. During the course of submissions, learned counsel for the appellant submitted that the observations of this Court in MFA No. 2451/2009 are in the nature of strictures and a direction was also issued to conduct an enquiry as against the appellant. The enquiry was conducted in compliance of the said directions and the appellant was exonerated. Thereafter, the enquiry report was placed before this Court. The learned Single Judge did not accept the said report exonerating the appellant herein and instead directed that the charges should be framed against the appellant and a criminal prosecution must be commenced against him. Being aggrieved by the said observations of this Court in MFA No. 2451/2009 by judgment dated 9.3.2011 and an order dated 16.3.2018 passed in the very same matter subsequent to filing of the report on enquiry, the writ petition was filed, inter-alia seeking quashing of those observations in the form of strictures in the aforesaid judgment and the subsequent order. This was on the ground that the said observations in the form of strictures and the subsequent order was passed without issuance of notice to the appellant herein, who had passed an order as Workmen’s Compensation Commissioner and without hearing the appellant herein. Therefore, placing reliance on Shivdeo Singh vs. State of Punjab [(AIR 1963 SC 1909)], writ petition was filed.

5. Learned counsel for the appellant submitted that such strictures or stringent observations against any Officer or Official discharging his official duties have been made by a learned Single Judge which was improper and wholly unnecessary. In this regard, he placed reliance in the case of State of West Bengal and Others Vs. Babu Chakraborty [(2004) 12 SCC 201].

6. Learned counsel for the appellant submitted that the impugned order passed in Writ Petition No. 174895/2018 may be set aside by recalling/expunging the observations in the form of strictures and directions issued in MFA No. 2451/2009 on 9.3.2011 and by the subsequent order dated 16.3.2018 and this appeal may be allowed. The learned counsel further submitted that liberty may be reserved to the appellant herein to seek his terminal and retirement benefits, as also in pensionary benefits, since the award passed by him has been set aside by this Court in MFA No. 2451/2009 and the appellant has been exonerated in the enquiry conducted against him in respect of the said award, by allowing this appeal.

7. Learned Counsel for the first respondent very fairly submitted that the prayers as such are not sought against the first respondent-Insurance Company. No doubt the Insurance Company had filed MFA No. 2451/2009 being aggrieved by the award passed by the appellant herein, as the Workmen’s Compensation Commissioner on 20.08.2008, but in the said appeal, by judgment dated 9.3.2011, the said award was set aside the while doing so, this Court had passed certain observations and had also directed for conduct of an enquiry to be instituted against the appellant. The appellant has been exonerated in the said enquiry. He has also stated to have been retired on attaining the age of superannuation. Hence, appropriate orders may be made in the appeal.

8. The detailed narration of facts and contentions would not call for reiteration, except highlighting the fact that in MFA No. 2451/2009 filed by the firs respondent-Insurance Company against the award dated 20.08.2008 in CWC-3/NFC/CR-5/2006, which award was passed by the appellant herein, the same was set aside by the learned Single Judge who has also passed the impugned order in this appeal. But while doing so, the learned Single Judge in paragraph Nos. 13 to 15, has made the following observations which are in the form of strictures:

“13. Assuming for a moment that the document produced are genuine, let us see the conduct of Commissioner, who is the first and foremost culprit in this proceedings. It pains to see that an officer of that rank stooping to such lowest level for the sake of accommodating a claimant for extraneous consideration is beyond the comprehension of this Court. The Commissioner appears to be not only dud but also blind. He is not able to see the document, which is filed before him, cannot apprehend the contents of it and is incompetent to come to a reasonable conclusion regarding genuineness of the same. Of Course, when he has decided to be a party for manipulation, it is but natural that he would turn a blind eye to all the discrepancies on record. The Commissioner has not only turned a blind eye to this but proceed with utmost impudence to defy all reasonable limits of decency to assess the documents available on record in a manner unknown to law. In a proceeding initiated before Commissioner for compensation, the first and foremost thing that he is required to see is whether the injuries suffered by claimant causes loss of earning capacity to him. For that he need to rely upon the evidence of Doctor. Unfortunately, the Doctor who is another partner is crime is not honest in giving his opinion. He has tried to interpolate some other document as that of claimant and goes to the extent of saying that claimant has suffered limb disability to an extent of 46%, which results in whole body disability to an extent of 23%. However, though he is required to give his opinion as contemplated under the Act regarding extent of loss of earning capacity said disability would cause to claimant, he is silent on that aspect. In the instant case the Commissioner takes the said responsibility on himself and goes a step further and feel that it is fit case where loss of earning capacity of claimant should be taken at 90% when there is neither acceptable reason nor medical evidence available on record. Further, in pleading and evidence of claimant it is said that his income is Rs.3,000/- p.m. The 1st respondent accept the same as Rs.2,500/- p.m. The Commissioner with the benevolence at his disposal generously fix the same at Rs.3,800/- p.m. and proceed to award compensation in princely sum of Rs.4,54,251/- payable with interest at 12% from 30th day of order till date of deposit of entire amount.

14. On going through the entire records and findings given by Commissioner, this Court find that there is clear attempt on the part of claimant in connivance with Dr.Rajanna, PW.2, Commissioner for Workmen’s Compensation in trying to hoodwink the 2nd respondent insurance company to part with fat compensation in a case where claimant is not even an injured in the vehicle which is said to have involved in accident on 26.11.2005. As stated earlier FIR, Ex.P1 does not disclose stated earlier FIR, Ex.P1 does not disclose presence of claimant as cleaner in the said vehicle. It only points to presence of one Siddappa, who was present in the said vehicle as driver. Assuming for a moment that claimant himself is Siddappa then he is not cleaner, he is a driver, he must be having driving licence and he should be pursuing work as driver under 1st respondent. The very fact that he is describing himself as a cleaner clearly indicates that either he was not in the vehicle at the time of accident or in the alternative if he were to be there, he was driving was said vehicle without valid driving licence. Let us see the second possible analogy to this. Assuming for a moment that said Siddappa and claimant are two different persons then claimant who is a total stranger to said accident is trying to put himself in to the shoes of said Siddappa by changing to name into G.M. Kumar by filing some false and frivolous affidavit before Resident Medical Officer in the Bowring and Lady Curzon Hospital and is trying to create documents for the sake of this frivolous case.

15. In the result, appeal filed by 2nd respondent –insurance Company is allowed. The order dated 20.08.2008 in CR.No. 5/2006 passed by Commissioner for Workmen’s Compensation, Sub-Division-II Bangalore is set aside. While doing so, this Court direct the Secretary, Home Department, Secretary to Labour Department and Secretary to Medical department to initiate enquiry against M. Nagaraju, the Commissioner for Workmen’s Compensation, Sub-Division-II, Bangalore as he was working during August 2008, and Dr.Rajanna S/o late Subbanna working as Orthopedic surgeon in Bowring and Lady Curzon Hospital as on 17.07.2007, claimant in the aforesaid proceedings G.M. Kumar S/o Muniyappa, resident of Gaddehalli, Mavinhalli Post, C.S. Pura Hobli, Gubbi Taluk, Tumkur District claiming himself as having an alias name of Siddappa. The entire records pertaining to this proceedings be sent to Home Secretary to Government who in turn shall appoint an honest officer to conduct enquiry against the above three persons with reference to their involvement in the aforesaid false claim and submit his report to this Court within six months from the date of receipt of a copy of this Judgment.

In view of the appeal being allowed, the amount, in deposit be refunded to the appellant”.

9. The learned Single Judge who made the said observations in the form of strictures, did not issue notice tot eh appellant herein nor give him an opportunity of being heard. In fact, the observations are serious in nature. Further, a direction was issued to hold an enquiry against the appellant herein. Consequently, in compliance of the said direction, an enquiry was held against the appellant herein, in which he was exonerated. The same is produced as Annexure-C to the writ petition. A copy of the said enquiry report was placed before this Court in MFA No. 2451/2009, as had been directed.

10. The learned Single Judge however, did not accept the said report and rejected the same and directed that the matter may be placed before the jurisdictional Magistrate, to look into the record and take cognizance of the offenceand to frame appropriate charges against the appellant herein and to launch a prosecution against him. This was by order dated 16.03.208 passed in MFA No. 2451/2009. Paragraph 3 of the said order reads as under:

“3. Be that as it may. When the entire record is looked into it clearly indicates that an attempt is made to manipulate the records and deliberately false report is given supporting the persons who are accused of manipulation of records. Therefore, the report of Mr.B. Dayanand, Inspector General of Police (Traffic) is hereby rejected and the registry is directed to place the matter before the jurisdictional Magistrate, who shall look into the records and thereafter to take cognizance of the offence, to frame appropriate charges against all those who are concerned and conduct criminal case against each one of them with reference to manipulation of medical records as well as manipulation of medical records to ensure that the false claim made in this proceeding is entertained. The prosecution shall be launched within 90 days from today”.

11. Being aggrieved by the said direction issued by the learned Single Judge, once again without issuance of notice tot eh appellant herein and without giving him an opportunity of being heard, the appellant herein preferred Writ Petition No. 17485/2008, inter-alia, assailing the said observations made in MFA No. 2451/2009. The learned Single Judge, before whom the matter came up, dismissed the writ petition by holding that there were serious allegations against the appellant herein and therefore the observations as well as the directions to commence a prosecution against the appellant herein were just and proper. We find that, from the aforesaid, certain significant facts would have to be taken note of.

12. Firstly, although the appellant herein passed the award dated 20.08.2008 wherein compensation of Rs.4,54,251/- with interest at 12% p.a. was directed to be paid to be claimants, the same was assailed by the insurance company in MFA No. 2451/2009 and by judgment dated 9.3.2011 it was set aside. Despite setting aside of the said award, the learned Single Judge passed observation in the form of strictures against the appellant herein without issuance of notice and without hearing him.

Also learned Single Judge directed an enquiry to be initiated against the appellant herein. In compliance of the said direction, an enquiry was initiated against the appellant herein, wherein he has been exonerated. But despite exoneration of the appellant herein and the enquiry report submitted before this Court, the learned Single Judge rejected the enquiry report and once again without issuance of notice to the appellant herein and without hearing the appellant, directed charges to be framed and prosecution to be launched by the jurisdictional Magistrate without indicating as to what exactly the offence was. Being aggrieved by the strictures and directions issued by the learned Single Judge, the writ petition was filed. The said writ petition which was filed in the nature of review was considered by the learned Single Judge, who has dismissed it.

13. We find that, the learned Single Judge was not right in making scathing observations against the appellant herein and also rejecting the report in favour of the appellant herein, which was after an enquiry being held against the appellant in respect of the award passed by him on 20.08.2008, was set aside by the learned Single Judge, without issuance of notice to the appellant and without hearing him. This is an instance of violation of principles of natural justice. Hence, the judgment of the Hon’ble Supreme Court in the case of Shivdeo Singh (supra) squarely applies and the appellant was entitled to file the writ petition.

14. Further, the Hon’ble Supreme Court in the case of Babu Chakraborty (Supra) held that, it is not correct for High Court to pass observations or strictures against the Officers or Officials who pass orders in discharge of their duties without affording an opportunity of being heard; nor very harsh and disparaging remarks, unless it is really necessary for the decision of the case. In the instant case, as already noted that learned Single Judge set aside the award dated 20.08.2008 passed in MFA No. 2451/2009, in the appeal filed by the Insurance Company challenging the said award passed by the appellant herein in discharging of his duties as a Workmen’s Compensation Commissioner. Therefore, justice to the appellant-insurance Company was met. But, during the course of said judgment, the aforementioned observations in the form of strictures and directions to hold an enquiry were made. In compliance of the said d

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irections, an enquiry was also concluded, wherein the appellant herein was exonerated. Bu the learned Single Judge was not satisfied with the same and without there being any basis as such or indicating, as to, for which offence, a prosecution ought to be commenced against the appellant herein, directed the jurisdictional Magistrate to commence the prosecution. We find that, this is without any basis. The learned Single Judge could not have over stepped his jurisdiction by directing the jurisdictional Magistrate to commence the prosecution against the appellant herein. As a result of all this, the appellant, who retired from service on attaining the age of superannuation, has not been paid his retirement benefits and/or pensionary benefits. 15. In the circumstances, we find that in paragraph Nos. 13 to 15 of the Judgment in MFA No. 2451/2009 consisting of the observations in the form of strictures against the appellant herein are liable to be expunged and are expunged. 16. Since a direction to initiate enquiry against the appellant herein has been complied with and the appellant has been exonerated of the charges framed against him, the said report is accepted. Consequently, the direction to commence prosecution against the appellant herein is set aside. As a result, the impugned order of the learned Single Judge in Writ Petition No. 17485/2018 is set aside and the writ petition is allowed to the aforesaid extent. Appeal is allowed in the aforesaid terms. The appellant is at liberty to make a representation to the State Government to seek his retiral and/or pensionary benefits and on such representation being made, the State shall consider the same in accordance with law and in an expeditious manner. The parties to bear their respective costs. In view of the disposal of the appeal, IA No. 2/2019 stands disposed.
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