Procedure in proceeding before commissioner under

employees compensation act ,1948

In the partial fulfillment of marking scheme of B.A.LL.B. (6th semester)

Submitted To: Submitted By:Shvet Sharma

MS: Jyoti Pathania BA.LLB 6th –SEM

Introduction:

Every employee needs a secured job and wants to get compensation for the expenses he has
incurred. This is a requirement that needs to be fulfilled by the company whether it is small scale
or large scale. After all, a company’s success depends on its employees. Therefore, the protection
of employees’ and their safety is a top priority of a company. This article is all about how much
compensation is given, under what conditions, who is entitled to claim compensation and a lot
more.
Section 19: Reference to Commissioner

The question arises about the liability of any person under the act, who will pay the
compensation. A question arises about the person who is injured or not or how much amount is
to be given or the duration of the compensation. Also about the extent of the disability the person
who is suffering and will get compensation. All such issues are to be resolved by the
commissioner.

Jurisdiction of Civil Court

The Jurisdiction of the civil court does not have the authority to settle, decide or deal with
questions that are not required to be dealt with under the act if it dealt by the commissioner.

Section 20: Appointment of Commissioner

Commissioner means a commissioner for employee compensation appointed under Section

20. The state government or the central government may appoint any person to be commissioner
for workmen’s or employees’ compensation act in some specified areas. Every commissioner is
identified as a public servant in the Indian Penal Code.

1. If the state government appoints more than one commissioner for any area, a specific
order may regulate the business.

2. Any commissioner may choose a person or more persons who possess knowledge and
assist him in holding the inquiry.

Section 21: Venue of proceedings and transfer

The provisions under the act will be subject to the commissioner as well if there is a matter
related to rules and regulations. The rules made under the act before the commissioner for the
area where-
  The accident happened that resulted in the injury.

 If the employee dies and if the dependent claims compensation it will reside.

 Employer’s office is registered.

No matter should be processed before a commissioner other than the commissioner who has
jurisdiction in the area where the accident happened. It shall not happen without giving notice in
the manner prescribed.

If the employee is the mater of the ship or seaman or a captain or crew member of the aircraft or
employee in a motor vehicle, meets with an accident outside India, then such matter shall be
done by the commissioner.

Section 22: Form of Application

No other application for any matter of the commissioner for dependants should be made for
compensation. Until and unless some question arises between the parties there is no settlement as
per agreement.

Liability of insurer

The insurance company and the insurer are the same and it provides the insurance policies to the
employer. The employer takes the insurance for the employee for the risks associated with their
work. So when there is an accident and injury occurs the employer claims the insurance for the
employee. In this case, the employer is the insured.

Defective application

An application to a commissioner can be made and it will be accompanied by a fee as prescribed.

If the applicant is illiterate or because of any other reason is not able to furnish information in
written form then the application shall be in the direction of the commissioner.
Section 22-A

The power of commissioner is required to further deposit in the cases which talks about fatal
accidents-

When any amount is deposited by an employer as compensation payable in respect of an

employee whose injuries resulted in his death, and the commissioner thinks that amount or sum
was not sufficient, he may state a notice in writing giving reasons, he may call upon the
employer to show why he could not make a further deposit within such time as stated in the
notice.

If the employer fails to satisfy the Commissioner, the Commissioner may make an award
determining the total amount to be paid, and requires the employer to deposit the deficient
amount.

Section 23: Powers and Procedure of Commissioners:

He has the power to award compensation more than what is claimed by the employee if the facts
warrant the award. A case dealing with the commissioner was Karnataka State Road Transport
Corporation v. B.T. Somashekaraiah, 1994.

Section 24: Appearance of Parties

A person may appear or become a witness for the purpose of examination, an application or act
is required to be made by a person to a commission. It may be done on behalf of a legal
practitioner or an official of the insurance company or registered trade union or an inspector
appointed under Section 8 of the Factories Act, 1948, or any other officer which is specified by
the state government with the permission of the commissioner or a person who is authorised to
do so.
Section 25: Method of Recording Evidence

The commissioner makes a brief written message(memorandum) of the evidence of every

witness as the examination process proceeds. The memorandum should be in written form and
duly signed by the commissioner. The form so signed by the commissioner must be in his own
handwriting and it will be a part of the record.

Section 25A: Time limit for disposal of cases relating to compensation

The Commissioner can dispose of the matter relating to compensation under this Act within a
period of three months from the date of reference and intimate the decision in respect thereof
within the said period to the employee.

Section 26: Cost

All costs, incidental to any proceedings before a Commissioner, shall, subject to rules made
under this Act, be in the discretion of the Commissioner.

Section 27: Power to submit cases

A commissioner can submit a Question related to law so that the High Court can decide the
compliance with the standards or rules if the High Court wants to do so.

Section 28: Registration of agreements:

A memorandum should be sent by the employer to the commissioner when a lump sum amount
is payable as compensation due by the agreement either half monthly payment or payment being
payable to a woman or a person with a legal disability. The memorandum must be genuine and
should be registered in the prescribed manner.

However, a memorandum cannot be recorded before seven days after the communication has
taken place between the commissioner and the concerned parties.
Section 29: Effect of failure to register agreement:

The employer will be liable to pay the full amount of compensation if the registration of the
agreement of memorandum is not sent to the commissioner as required under the section. The
employer will pay the compensation as he is liable to pay under the provisions of the Act
(Section 4). Until the commissioner directs to deduct more than half of the amount to be paid to
the employee as compensation.

Section 30: Appeals:

An appeal may lie to the High Court by following the orders of the commissioner.

 A lump sum amount as compensation is awarded as an order, and redemption of half

the monthly payment is away.

 An order may refuse to allow gain of a half monthly compensation.

 Distribution of compensation by order among the family members of the deceased, or

disallowing of any claim of a person.

Substantial Question of Law:

If there is difficulty in applying the facts to the law it will not amount to a substantial question of
law. Reference case- Asmath Bedi(dead) v. Marimuthu.

The period of limitation under section 30 is sixty days if a person makes an appeal. An appeal
lies against the order of commissioner who will compensate only when a substantial question of
law. The scope in section 30 of the Act for appealing against the order that is passed by the
commissioner is very limited. An appeal shall not lie against any order unless a substantial
question of law.
Can courts intervene on question of fact?

Yes, the courts can intervene on the question of fact. This was done in the case of Mangala Ben
vs Dilip Motwani. It was first held that there is no substantial question of law. In the opinion of
the Court, the finding of the Commissioner does not prove that the deceased was in the
employment of the owner. The learned Commissioner further held that the claimant did not
produce any evidence to prove that the deceased was employed for the purposes Dilip Motwani’s
trade or business. He observed that in the absence of such evidence, the deceased cannot be held
to be an employee. In the opinion of the court, the Commissioner committed error of law in
holding that the burden lay on the claimant to prove that the deceased was employed for the
purposes of the respondent’s trade or business. The appellate court has no jurisdiction to
entertain an appeal unless the same involves a substantial question of law, Nisan Springs (Pvt)
Ltd v. Om Jain, 1990.

When does an appeal lies?

An appeal lies when there is a judgment passed by the court but the employee or his dependants
are not satisfied and then they appeal.

Effect of death of claimant

If the injury of the employee results in his death, the employer shall give compensation in
addition to the compensation that is deposited with the commissioner. A sum of five thousand
rupees and not less than that will be given to the eldest surviving dependant of the employee.

Third proviso to Section 30(1)

Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum
of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant
has deposited with him the amount payable under the order appealed against.
Review, Revision, Remand, and Writ

If an employee is not satisfied with the decision of the court regarding the compensation, he can
appeal for review by the court. Review can be made only after the decree is passed by the court
or an order is made. If there is an error in the decision by the court appeal can be made for
revision which can be done only by the High Court. An employee can writ if he has been
wrongly remanded. Remand means In custody of the court.

Appeal not accompanied with certificate by the Commissioner under Proviso (3)

If the appeal is not accompanied by a certificate by the commissioner that is payable and
deposited with him then no appeal by the employer under clause (a) shall lie against the law. The
period of limitation under the section for the appeal will be sixty days.

Condonation of delay

If the appeal by the employee is delayed it is known as condonation of delay. An appeal is filed
when the employee is not satisfied by the decision of the court and want to appeal again for the
decision. So when the employee gets delayed in appealing the suit it will be condoned.

Section 30-A: Withholding of certain payments pending decisions of appeal

The commissioner may withhold the payment of any amount which is deposited with him when
an employer appeals under section 30 and it is directed by the High Court.

Section 31: Recovery

The commissioner can recover any amount payable by any person as arrears of land revenue.
The commissioner will be deemed to be a public officer if there is an agreement for the payment
of the compensation under the meaning of section 5 of the Revenue Act, 1890.
Rules

Section 32: Power of the State Government to make rules

The state government has the power to make rules and regulations for the purpose of this act.
These rules provide all the matters without prejudice namely:

 The state government prescribes certain intervals where an application may be made
under Section 6 is subject to conditions when not accompanied by a medical
certificate by a qualified practitioner.

 The state government prescribes some intervals where an employee is required to

submit himself to undergo certain medical examination of section 11.

 The state government prescribes a procedure that needs to be followed by the

commissioners. It is required when there is disposal of cases under the act and by the
parties.

 The state government regulates the transfer of matters. It also regulates cases from one
commissioner to another and also transfer of money in some cases.

Section 34: Publication of rules

The power to make rules in Section 32 will be subject to the conditions of the rules which are
made after previous publication. Rules so published in the Official Gazette will have an effect in
the Act.

Section 35: Rules to give effect to arrangements with other countries for the transfer of
money paid as compensation

The Central Government may make rules for transfer money to any foreign country which is
deposited with a commissioner under the act by a notification. A person who resides in a foreign
country or is about to reside may be awarded the money deposited under the law relating to
employees. The amount related to fatal accidents shall not be transferred without the consent of
the employer under the commissioner.

Section 36: Rules made by the Central Government to be laid before Parliament

Every rule made under the act by the Central government is laid before each house of parliament
while it is in session for thirty days. It may be done in one session or in two sessions before the
expiry of the session. The houses may make any modifications in the rule or the houses may
agree that the rule should not be made.

Conclusion

The Act is basically made for the employees so that when they incur expenses for the injury
suffered during an accident, they can get compensation from the employers. The basic rule of
Vicarious liability applies in the act. The employer is the master and the employee is the servant.
The employee gets compensation only when the injury takes place in the course of employment
and in the workplace.

References

1. H.L. Kumar, labor and Industrial law

2. Indiankanoon.org

3. Labour.Gov.in

4. Bare Act