PRESTIGE INSTITUTE OF MANAGEMENT AND RESEARCH, DEPARTMENT OF

LAW

SESSION 2019-2020

LABOUR LAW PROJECT REPORT

TOPIC- Procedure before Commissioner

Under Employee Compensation Act

SUBMITTED TO : SUBMITTED BY-

MR. Sumit maheshwari Arshi
khan

BALLB- 9th SEM

Sch. No. -1111010054

 Contents
ACKNOWLEDGMENT.............................................................................................................................8
CERTIFICATE OF DECLERATION..............................................................................................................8
INTRODUCTION.....................................................................................................................................9
THE MAIN PROVISIONS OF THE ACT ARE.............................................................................10
PROCEDURE IN THE PROCEEDINGS BEFORE THE COMMISSIONER............................11
 Appointment of Commissioners..................................................................................................11
 Reference to Commissioner and his jurisdiction..........................................................................11
 Jurisdiction of Civil Court barred................................................................................................11
 Venue of proceedings and transfer...............................................................................................11
 Form of application.....................................................................................................................11
 Power of the Commissioner to require a further deposit in case of a fatal accident.....................11
 Powers and procedure of Commissioners....................................................................................11
 Appearance of parties..................................................................................................................11
 Method of recording evidence.....................................................................................................11
 Time Limit for disposal of cases relating to compensation..........................................................11
 Costs............................................................................................................................................12
 Power to submit cases..................................................................................................................12
 Registration of agreements..........................................................................................................12
 Effect of failure to register agreement.........................................................................................12
 ACKNOWLEDGMENT

A project is never a unilateral effort; there is always a team of others who contribute in one or
more ways. The credit for the successful completion of this project goes to a number of people
without whose help; we would not have been able to do justice with this project. Therefore, we
would take this opportunity to express our gratitude towards them.

We would like to express our indebtedness towards our teacher Mr Sumit Maheshwari and our
director Dr Nishant Joshi for their inspiring thoughts and explanation which helped us to shape
our work.

We are equally thankful to our parents, all our friends and well-wishers who extended all
possible support and encouraged us throughout this project.
CERTIFICATE OF DECLERATION

I Arshi khan the students of BA.LLB (hons.) ninth semester solemnly declare that the project file
entitled ‘procedure before commissioner under workmen compensation act,1923 ’ is results
of my efforts aided under the guidance of our teacher Mr. Sumit Maheshwari To the best of my
knowledge and belief, the work has not been submitted by us anywhere else

DATE: 14/11/2019
NAME: Arshi khan
 INTRODUCTION

The Workmen’s Compensation Act, 1923 poses objects such as payment of compensation
to workmen and their dependants in case of injury and accident including certain
occupational disease arising out of and in the course of employment and resulting in
disablement or death. The Act is applicable to railway servants as is specified in Schedule
II of the Act.
The schedule II includes persons employed in factories, mines, plantations, mechanically
propelled vehicles, construction works and certain other dangerous occupations. The
amount of compensation to be paid depends on the nature of the injury and the average
monthly wages and age of workmen. The minimum and maximum rates of compensation
payable for death (in such cases it is paid to the dependents of workmen) and for
disability have been fixed and is subject to revision from time to time.
A Social Security Division has been set up by the Ministry of Labour and Employment,
which deals with framing of social security policy for the workers and implementation of
the various social security schemes. It is also responsible for imposing this Act. The Act
is administered by the State Governments through Commissioners for Workmen's
Compensation.
Applicability Of The Act
The Act applies to any person who is employed otherwise than in a clerical capacity, in
railways factories, mines, manors, mechanically propelled vehicles, loading and
unloading work on a ship, construction, maintenance and repairs of roads and bridges,
electricity generation, cinemas, catching or trading of wild elephants, circus, and other
hazardous occupations and other employment specified in Schedule II to the Act, Under
Section 2(3) of the Act.
The State Governments are empowered to extend the scope of the Act to any class of
persons whose duties are considered hazardous after giving three months' notice in the
official gazette. The Act, however, does not apply to affiliates plateful in the Armed
Forces of Indian Union, and employees covered under the provisions of the Employees'
State Insurance Act 1988 as deactivation and dependents' benefit is available under this
Act.
 THE MAIN PROVISIONS OF THE ACT ARE

An employer is liable to pay compensation:-

(i) if personal injury is caused to a workman by accident arising out of and in the course
of his employment
(ii) If a workman employed in any employment contracts any disease, specified in the
Act as an occupational disease peculiar to that employment.

The employer is not liable to pay compensation in the following cases:-

If the injury does not result in the total or partial disablement of the workman for a period
exceeding three days.
If the injury, not resulting in death or permanent total deactivation, is caused by an accident
which is directly attributable to:-

(i) the workman having been at the time of the accident under the influence of drink or drugs;

(ii) The willful disobedience of the workman to an order expressly given, or to a rule
expressly framed, for the purpose of securing the safety of workmen; or

(iii) The willful removal or disregard by the workman of any safety guard or other device
which has been provided for the purpose of make safety of workmen.
 PROCEDURE IN THE PROCEEDINGS BEFORE THE COMMISSIONER

Under section 20 of the Act, procedure in the proceedings before the commissioner. As
amended by the Workmen’s Compensation (Amendment) Act, 2009 provides that the
State Government may, by notification in the Official Gazette.

 Appointment of Commissioners
 Reference to Commissioner and his jurisdiction
 Jurisdiction of Civil Court barred
 Venue of proceedings and transfer
 Form of application
 Power of the Commissioner to require a further deposit in case of a fatal accident
 Powers and procedure of Commissioners
 Appearance of parties
 Method of recording evidence
 Time Limit for disposal of cases relating to compensation
 Costs
 Power to submit cases
 Registration of agreements
 Effect of failure to register agreement

Appointment Of Commissioner (Sec 20)

The State Government may, by notification in the Official Gazette, appoint any person to
be a Commissioner for Workmen's Compensation for such area as may be specified in the
notification. Any Commissioner may, for the purpose of deciding any matter referred to
him for decision under this Act
Qualifications
 Persons possessing special knowledge of any matter relevant to the matter under inquiry
to assist him in holding the inquiry.
 Any person who is or has been a member of a State Judicial Service for a period of not
less than five years or
 Any person been for not less than five years an advocate or a pleader or
 Any person is or has been a Gazetted Officer for not less than five years having
educational qualifications and experience in personal management, human resource
development and industrial relations to be a Commissioner for Employee’s Compensation
for such area as may be specified in the notification.
 Role
 Compensation shall be paid as soon as it falls due. In cases where the employer does not
accept the liability for compensation to the extent claimed, he shall be bound to make
provisional payment based on the extent of liability which he accepts, and, such payment
shall be deposited with the Commissioner or made to the workman, as the case may be.
 Every Commissioner shall be deemed to be a public servant within the meaning of the
Indian Penal Code.
 Section 20(3) empowers the Commissioner to appoint or choose any person, possessing
special knowledge of any matter relevant to the matter under inquiry, to assist him in
holding the inquiry.
 If any question arises in any proceedings under this Act as to the liability of any person to
pay compensation (including any question as to whether a person injured is or is not a
workman) or as to the amount or duration of compensation (including any question as to
the nature or extent of disablement), the question shall, in default of agreement, be settled
by a Commissioner.
 No Civil Court shall have jurisdiction to settle, decide or deal with any question which is
by or under this Act required to be settled, decided or dealt with by a Commissioner or to
enforce any liability incurred under this Act.
Whoever, fails to maintain a notice-book which he is required to maintain; or fails to send
to the Commissioner a statement which he is required to send; or fails to send a report
which he is required to send; or fails to make a return which he is required to make, shall
be punishable with fine. The Commissioner under Workmen's Compensation Act cannot
review his order.
powers
Rajbir Singh v. S.K.S. Yadav, Commissioner Workmen's Compensation, 1
• Commissioner under the Act can appoint a Local Commissioner for recording of
evidence2.
• Workmen's Compensation Commissioner can review his order and provisions of Motor

1
(1996) 1 LLj 91: 1995 LLR 467: 1995 (71) FLR 358 (Del HC).
2
Chandrasenan v. Regional Director ESI, 1996 LLR 390 (Born He),
Vehicles Act can also be invoked for deciding the claim for compensation3.

• A Conunissioner under Workmen's Compensation Act is not a Civil Court.4

• Compensation Commissioner is empowered to assess the percentage of disablement of

an employee.5

• Section 5 of the Limitation Act is applicable to the proceedings under the Workmen's
Compensation Act, 1923.6
• Delay in claiming compensation for accident can be condoned by the Commissioner
under the Act.7
• The Workmen's Compensation Commissioner committed serious error in entertaining a
claim awarding compensation despite that it was brought to his notice that the workman
has already filed his claim under Motor Vehicles Act8.

3
United India Insurance Company Ltd. v. Workmen's Compensation Commissioner Bareilly, (1996) II LLj
448: 1996 LLR 451 (All He).

4
S, Girija v. Kanara Transport Company, Milngalore, (1999) 2 LLN 859: 1999 LLR 812 (Kam He): 1998
(82) FLR 756.

5
Uniled India Insurance Company Ltd" Hyderabad v. Ramulu, 2000 LLR 344 (AP He).

6
Prem Chand v. Workmen's Compensation Commissioner, Agra, (2002) 3 LLN 886: (2001) 89 FLR 679:
(2001) 2 CLR 676: 2001 LLR (Sum) 955 (All HC).

7
Kamataka Soaps and Detergents Ltd. v. Hanumanthamma @ Hanumakka, (2002) 2 Kant Lj 215: (2001)
91 FLR 754: (2002) 3 LLN 463: 2001 LLR 1240 (Kam HC).

8
Pattam Abdullah Khan v. T. Venkatarami Reddy, 2003 LLR 589 (AP HC).
REFERENCE TO COMMISSIONER AND HIS JURISDICTION { SECTION 19(1)}
Jurisdiction of a Commissioner to deal with a claim in respect of payment of compensation to
an employee. The Commissioner is empowered to settle any question which may arise in any
proceeding under this Act as to the liability of any person to pay compensation, and in
particular, the Commissioner has jurisdiction over following matters:
 What is Liability of any person to pay compensation?
 Whether a person injured is or is not an employee?
 What is the nature and extent of disablement?
 What is the amount or duration of compensation?

Case: - United India Fire & General Insurance Co. Ltd. v. Kamalalshi it was held that If an
application is made under the Employee’s Compensation Act to the Commissioner, he has,
by virtue of Section 19(1) of the Act, jurisdiction to decide any question as to the liability of
any person including an insurer to pay compensation. Section 19(2) further provides that the
enforcement of that liability can only be made by him. The Commissioner’s jurisdiction is
wide enough to decide the tenability of the objections; the consequential direction of the
Commissioner to the insurer to pay is also covered under Section 19(1). In any event in
execution of the order against the insured, namely, the employer, the Commissioner can
enforce his liability against the insurer under Section 31. In the light of Section 19 read along
with Section 31, the order of the Commissioner can never be challenged as being without
jurisdiction.

Jurisdiction Of Civil Court Barred:- Madina Saheb v. Province of Madras

It was held that no Civil Court shall have jurisdiction to settle, decide or deal with any
question which is by or under this Act required to be settled, decided or dealt with by a
Commissioner or to enforce any liability incurred under this Act. However, where the
Commissioner has no jurisdiction to decide any matter and even fails to decide when raised,
thereby leaving a party without any defence the Civil Court will have jurisdiction to entertain
such suits.

VENUE OF PROCEEDINGS AND TRANSFER { SECTION 21}

Where any matter under this Act is to be done by or before a Commissioner, be done by or
before the Commissioner for the area in which:
 The accident took place which resulted in the injury;
 The employee or in case of his death, the dependent claiming the compensation
ordinarily resides;
 The employer has his registered office:
 No matter shall be processed before or by a Commissioner, other than the
Commissioner having jurisdiction over the area in which the accident took place,
without his giving notice in the manner prescribed by the Central Government to the
Commissioner having jurisdiction over the area and the State Government concerned:
 Where the employee, being the master of a ship or a seaman or the captain or a
member of the crew of an aircraft or an employee in a motor vehicle or a company,
meets with the accident outside India any such matter may be done by or before a
Commissioner for the area in which the owner of agent of the ship, aircraft or motor
vehicle resides or carries on business or the registered office of the company is
situate, as the case may be. If a Commissioner, other than the Commissioner with
whom any money has been deposited under Section 8, proceeds with a matter under
this Act, the former may for the proper disposal of the matter call for transfer of any
records or money remaining with the latter and on receipt of such a request, he shall
comply with the same.
 If a Commissioner is satisfied that any matter arising out of any proceedings pending
before him can be more conveniently dealt with by any other Commissioner, whether
in the same State or not, he may, subject to rules made under this Act, order such
matter to be transferred to such other Commissioner either for report or for disposal,
and, if he does so, shall forthwith transmit to such other Commissioner all documents
relevant for the decision of such matter and, where the matter is transferred for
disposal, shall also transmit in the prescribed manner any money remaining in his
hands or invested by him for the benefit of any party to the proceedings:
 The Commissioner where any party to the proceedings has appeared before him, shall
not make any order of transfer relating to the distribution among dependants of a lump
sum without giving such party an opportunity of being heard.
 The Commissioner to whom any matter is so transferred shall, subject to rules made
under this Act, inquire thereto and, if the matter was transferred for report, return his
report thereon or, if the matter was transferred for disposal, continue the proceedings
as if they had originally commenced before him.
 On receipt of a report from a Commissioner to whom any matter has been
transferred for report under Subsection (2), the Commissioner by whom it was
referred shall decide the matter referred in conformity with such report
FORM OF APPLICATION (SECTION 22)
All claims for compensation subject to the provision of the Act shall be made to the
Commissioner. But such applications other than the applications made by dependant or
dependants can only be submitted when the parties have failed to settle the matter by
agreement.
Particulars Of Application-
 An Application to a Commissioner shall be accompanied by fee
 A concise statement of the circumstances in which the application is made and the
relief of order which the applicant claims;
 In the case of a claim for compensation against an employer, date of service of
notice of the Accident on the employer and, if such notice has not been served or
has not been served in due time, the reason for such omission;
 The names and addresses of the parties; and except in the case of an application
by dependents for compensation, a concise statement of the matters on which
agreement has and of those on which agreement has not been come to. If the
applicant is illiterate or for any other reason is unable to furnish the required
information in writing,
 The application shall, if the applicant so desires, be prepared under the direction
of the Commissioner.

Case: - M.B. & G. Engineering Factory v. Bahadur Singh

The court held However, any defect in the application, e.g., when it is not in the
prescribed form cannot be fatal to the claim. Any such irregularity can be rectified with
the permission of the Commissioner at any stage.

POWER OF THE COMMISSIONER TO REQUIRE FURTHER DEPOSIT IN

CASE OF FATAL ACCIDENT (SECTION 22A)
Where the Commissioner is of the opinion that any sum deposited by the employer as
compensation payable on the death of an employee, is not sufficient, commissioner is
empowered to call upon, by a notice in writing stating his reasons, the employer to show
cause why he should not make a further deposit within a stipulated period.
If the employer fails to show cause to the satisfaction of the Commissioner, the
Commissioner may make an award determining the total amount payable and requiring
him to deposit the deficiency.

POWERS AND PROCEDURE OF COMMISSIONERS (SECTION 23)

The Commissioner shall have for the following purposes, all the powers of a Civil Court
under the Code of Civil Procedure, 1908 for the purpose of:
 taking evidence on oath;
 enforcing the attendance of witnesses;
 compelling the production of documents and material objects.
 Appearance of parties Any appearance, application or act required to be made or
done by any person before or to a Commissioner other than an appearance of a
party which is required for the purpose of his examination as a witness,
 may be made or done on behalf of such person, by a legal practitioner or by an
official of an Insurance Company or registered Trade Union or by an Inspector
appointed under Section 8(1) of the Factories Act, 1948, or under Section 5(1) of
the Mines Act, 1952 or by any other officer specified by the State Government in
this behalf, authorised in writing by such person, or, with the permission of the
Commissioner by any other person so authorised.
METHOD OF RECORDING EVIDENCE (SECTION 25)
 The Commissioner shall make a brief memorandum of the substance of the evidence
of witness as the examination
 Such memorandum shall be written and signed by the Commissioner with his own
hand and shall form a part of the record.
 If the Commissioner is prevented from making such memorandum, he shall record the
reason of his inability to do so and shall cause such memorandum to be made in
writing from his dictation and shall sign the same and such memorandum shall form a
part of the record. The evidence of any medical witness shall be taken down as
nearby as may be word for word.
Case:- M.S.N. Co. Ltd. v. Mohd. Kunju It was held that the Commissioner should not
make a medical certificate the basis of his award unless he has examined the concerned
medical officer.
TIME LIMIT FOR DISPOSAL OF CASES RELATING TO COMPENSATION
{SECTION 25A}
 The Commissioner shall dispose of the matter relating to compensation within a
period of 3 months from the date of reference and intimate the decision in respect
thereof within the said period to the employee.
COSTS (SECTION 26)
 All costs, incidental to any proceedings before a Commissioner, shall subject to
rules made under this Act, be in the discretion of the Commissioner. However,
the Commissioner must use his discretion judiciously.

POWER TO SUBMIT CASES (SECTION 27)

 A Commissioner may, if he thinks fit, submit any question of law for the decision
of the High Court and, if he does so, shall decide the question in conformity with
such decision.
REGISTRATION OF AGREEMENTS { SECTION 28}
 It is obligatory for the employer to send a memorandum to the Commissioner
where amount of any lump sum payable as compensation has been settled by
agreement: whether by way of redemption of a half-monthly payment or
otherwise, or where an compensation has been settled as being payable to a
woman or a person under a legal disability. The Commissioner shall record the
memorandum in a register in the prescribed manner,
 After he has satisfied himself as to its genuineness provided that the
Commissioner has given at least 7 days’ notice to the parties concerned before
recording such memorandum. The Commissioner may at any time rectify the
register.
 The Commissioner may refuse to register the memorandum on the following
grounds: Inadequacy of the sum or amount settled; or Agreement obtained by
fraud or undue influence or other improper means.
 The Commissioner may in such a situation make such order including an order as
to any sum already paid under the agreement, as he thinks just in the
circumstances. An agreement which has been registered as aforesaid shall be
enforceable under this Act notwithstanding anything contained in the Indian
 Contract Act, 1872, or in any other law for the time being in force.
EFFECT OF FAILURE TO REGISTER AGREEMENT ( SECTION 29) -
 Where a memorandum of any agreement, the registration of which is required by
Section 28 is not sent to the Commissioner as required by that 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, and unless the Commissioner otherwise
directs, be entitled to deduct more than half of any amount paid to the employees
by way of compensation whether under the agreement or otherwise.

CONCLUSION
The Act applies to any person who is employed otherwise than in a clerical capacity, in
railways factories, mines, manors, mechanically propelled vehicles, loading and unloading
work on a ship, construction, maintenance and repairs of roads and bridges, electricity
generation, cinemas, catching or trading of wild elephants, circus, and other hazardous
occupations and other employment specified in Schedule II to the Act, Under Section 2(3) of
the Act.

Under section 20 of the Act, procedure in the proceedings before the commissioner. As
amended by the Workmen’s Compensation (Amendment) Act, 2009 provides that the State
Government may, by notification in the Official Gazette. The commissioner is the authority
under the workmen compensation act to deal with the matters for which he is empowered in
the act. A Commissioner under Workmen's Compensation Act is not a Civil Court.
Compensation Commissioner is empowered to assess the percentage of disablement of an
employee.

Thus the act is to serve the purpose of dealing with the grievances of employees.

REFERENCES
 http://www.hrinfo.in/2011/04/iv-powers-of-compensation-commissioner.html

 https://www.slideshare.net › JayashreePrabhu › workmens-compensation-act

 https://hrylabour.gov.in › staticdocs › labourActpdfdocs › Workmen


 https://indiacode.nic.in › bitstream › the-employees-compensation-act_1923