JUDGMENT
S.C. Pandey, J.
1. This is an appeal under Section 30 of Workmen’s Compensation Act, 1923 (henceforth ‘the Act’) against the order dated 1.9.1998 passed by the Commissioner, Workmen’s Compensation-cum-Labour Court, Jabalpur (henceforth ‘the Commissioner’) in Case No. 73/89/Fatal.
2. On 28.9.1987, respondent No. 3, Lachhobai filed an application under the provisions of the Act before the Commissioner claiming that her husband Khedu Choudhary was working in the godown of the appellant Ratilal Khoobchand as a labourer. He died on 31.5.1986 at about 7 p.m. when he was in the process of arranging heavy bags of rice and wheat. It was alleged that his death was on account of the fact that one of heavy bags fell on his body and he died due to that accident. It was further claimed that on account of death of Khedu Choudhary during the course of employment and out of the employment, the respondent No. 3 claimant was entitled to compensation amounting to Rs. 60,000.
3. The facts alleged in the application filed before the Commissioner for compensation were denied by the appellant and the respondent No. 4. It was claimed that Khedu Choudhary was not the employee of the appellant. It was also alleged that he did not die during the course of the employment and out of the employment with the appellant. It was further denied that Khedu Choudhary was drawing any wages from the appellant as a result of the employment and, therefore, it was urged that the application for compensation filed by respondent No. 3, Lachhobai before the Commissioner is liable to be dismissed.
4. It appears that initially the respondent No. 3 pleaded that her husband died during the course of employment and out of the employment on 31.5.87. It appears that the statement of the respondent No. 3 was also recorded on 9.2.1989 wherein she stated that her husband died on 31.5.1987. Pursuant to the evidence led by the respondent No. 3, an ex parte order was passed on 13.2.1989 in Case No. 63/Fatal/87 against the appellant Ratilal Khoobchand. In the Case No. 12 of 1988 F(m), the order dated 13.2.1989 was set aside and the further proceedings were started from 21.3.1989 as if no ex parte order remained. Thereafter, after recording evidence of the parties, the Commissioner passed the impugned order dated 1.9.1998.
5. It appears that after the ex parte order dated 13.2.1989 was set aside, an application was made for amendment of the original application stating that in fact the date of death of Khedu Choudhary was not 31.5.1987 but it was 31.5.1986. This amendment was allowed by order dated 16.7.1993 and the amendment was carried out by the counsel for the respondent No. 3 in the original application dated 28.9.87.
6. In this appeal, the first point that has been urged by the learned Counsel for the appellant, is to the effect that the Commissioner has no right to decide the case in view of the notification dated 26.6.1998 whereby all the Assistant Labour Commissioners of the State have been appointed as Commissioners for Workmen’s Compensation in addition to their duties within their respective jurisdiction under the Workmen’s Compensation Act, 1923. It is, therefore, urged that the moment the notification aforesaid was issued, the jurisdiction to decide the case with the Labour Court ended and the order dated 1.9.1998, impugned in this appeal is, therefore, null and void. It was not disputed before this Court that earlier a notification No. 4499-3823-XVI published in M.P. Gazette, Part I, dated 28.8.1964 was issued by the State Government appointing all the Presiding Officers and the Additional Presiding Officers of the Labour Courts constituted under the M.P. Industrial Relations Act, 1960 to be the Commissioners for Workmen’s Compensation for their respective areas of jurisdiction under the Workmen’s Compensation Act, 1923.
7. Learned counsel for the respondent No. 3, however, argued that notification dated 26.6.1998 did not supersede the notification No. 4499-3823-XVI published in M.P. Gazette, Part I, dated 28.8.1964 and, therefore, the impugned order passed by the Commissioner dated 1.9.1998 is not without any jurisdiction. Further, it has been argued that the notification dated 26.6.1998 confers the power of Commissioner for Workmen’s Compensation on the Assistant Labour Commissioner in addition to his duties in his respective jurisdiction to perform the duties under the Workmen’s Compensation Act, 1923. The conferral of this power does not impinge upon the power of the Labour Court. It is further urged that Section 20 read with definition of the Commissioner under the Act makes it clear that more than one officer can act as the Commissioner under the Act.
8. In order to resolve the controversy, it is necessary to consider the definition of the Commissioner as given in the Act. Section 2(1)(b) of the Act defines the Commissioner as follows:
(b) ‘Commissioner’ means a Commissioner for Workmen’s Compensation appointed under Section 20;
This definition is colourless as such and points out to the fact that any officer appointed as Commissioner for Workmen’s Compensation shall be called Commissioner in the Act. Therefore, we have to read Section 20 of the Act in order to find how the Commissioner shall be appointed. Section 20 of the Act reads as under:
20. Appointment of Commissioners.-
(1) 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.
(2) Where more than one Commissioner has been appointed for any area, the State Government may, by general or special order, regulate the distribution of business between them.
(3) Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the inquiry.
(4) Every Commissioner shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of I860).
It is clear from Section 20(1) of the Act that the State Government is authorised to appoint the Commissioner for Workmen’s Compensation by issuing a notification in the Official Gazette, any person, for the area specified in the notification. Section 20(2) of the Act clarifies the position by saying that the State Government has power to appoint more than one Commissioner and it has also power to regulate the distribution of business between them by general or special order. In view of subsections (1) and (2) of Section 20 of the Act, it is clear that for an area more than one Commissioner can be appointed. It may be noted here that under the old Act there was a word ‘local’ in respect of area. Now the word ‘local’ has been omitted by the Act No. 64 of 1962. Therefore, the area which is specified in the notification would be the area for determining the territorial jurisdiction of the Commissioner for Workmen’s Compensation if a notification is issued under Section 20(1) of the Act. It cannot be disputed that for the same area more than one Commissioner can be appointed by the State Government and it can regulate the distribution of business between them by general or special order. Therefore, it can be inferred that the Act itself confers power on the State Government to appoint more than one Commissioner and it could be done. Despite the existence of this power, it has been urged that the notification No. 4499-3823-XVI published in M.P. Gazette, Part I, dated 28.8.1964 has been superseded by the subsequent notification dated 26.6.1998. It is, therefore, necessary to reproduce the notification published on 28.8.1964 which reads as under:
Notification No. 4499-3823-XVI.- In exercise of the powers conferred by Sub-section (1) of Section 20 of the Workmen’s Compensation Act 1923 (VIII of 1923) and in partial modification of this Department Notification No. 6366-4231-XVI, dated 30.8.1962, the State Government hereby appoints all the Presiding Officers and the Additional Presiding Officers of the Labour Courts constituted under the Madhya Pradesh Industrial Relations Act, 1960, to be the Commissioners for Workmen’s Compensation for their respective areas of jurisdiction under the said Act.
(Published in M.P. Rajpatra Part I, dtd. 28.8.1964 page 2100)
The notification dated 26.6.1998 reads as under:
Notification No. F-A (0) 8/96/10-A (1): In exercise of the powers conferred by Section 20 of the Workmen’s Compensation Act, 1923 (8 of 1923) the State Government hereby appoints all the Assistant Labour Commissioners of the State as Commissioners for Workmen’s Compensation, in addition to their own duties and directs that they shall exercise the power and perform the duties under the said Act, in their respective jurisdiction.
It is clear from the wording of the notification dated 26.6.1998 that it does not supersede the earlier notification published on 28.8.1964. It cannot be disputed that both the notifications are part of the Madhya Pradesh Gazette and, therefore, if there are no express words repealing the earlier notification in the subsequent notification, it cannot be held that the earlier notification has been repealed. Nor can there be any repeal as there is no collision between the language of the two notifications. Moreover, Section 20 (2) of the Act itself shows that more than one Commissioner can be appointed for workmen’s compensation for one area.
9. For the reasons stated above, this Court does not find any merit in the contention that the notification dated 26.6.1998 has superseded the notification published on 28.8.1964 and thereby it has deprived the Presiding Officer of a Labour Court to work as Commissioner for Workmen’s Compensation under the earlier notification published on 28.8.1964 in the M.P. Gazette, Part I.
10. The next contention of the learned Counsel for the appellant is that the Commissioner for Workmen’s Compensation should have given opportunity to the appellant to rebut the case of the respondent No. 3, Lachhobai to the effect that Khedu Choudhary died on 31.5.1986.
11. After the amendment in respect of date of accident was allowed on 16.7.1993, the appellant being in a position of the defendant could have amended the written statement if need be and led evidence in rebuttal. It is clear from the statement of Lachhobai that she was examined on 9.7.96. Therefore, the appellant had full opportunity to cross-examine Lachhobai and she was permitted to be cross-examined by the appellant. Similarly, other witnesses were permitted to be cross-examined by the Commissioner and, thereafter, on 23.7.98, the evidence of the appellant was recorded and that of his witness on 13.8.1998. Therefore, one fails to understand what more opportunity could have been given to the appellant by the Commissioner. The opportunity to cross-examine the witness Lachhobai was there. Her earlier statement though could not be used as evidence but could always be used in cross-examination in order to discredit the testimony of the witness and it would be deemed that that opportunity was availed by the appellant by cross-examining the witnesses. In view of this matter, this Court rejects the contention of learned Counsel for the appellant that the appellant should be given further opportunity to lead evidence. On the other hand, the burden of proof remains on the appellant to prove by clear and cogent evidence that Khedu Choudhary died on 31.5.1987 and that the accident occurred on that date when he was not employed by the appellant. It is clear from the evidence of the appellant that all he has said in his evidence is that Khedu Choudhary was not working on 31.5.1987 in his godown and on that date his godown was not open. The another witness Ramesh Kumar Keshar-wani who was examined on 13.8.1998 to support the case of the appellant has been cross-examined whether Khedu Choud-hary died in the year 1986 or 1987. He vaguely stated that Khedu Choudhary died in May-June, 1986 or 1987. Along with the evidence of AW 1, Lachhobai, evidence of AW 2 Madanlal Choudhary and AW 3 Dukhiyabai has been recorded. AW 2, Madanlal Choudhary has stated that Khedu Choudhary died in the year 1986 or 1987. AW 3, Dukhiyabai has stated that Khedu Choudhary died on 31.5.1986. The evidence of AW 1, Lachhobai that Khedu Choudhary died on 31.5.1986 was supported by a certificate Exh. P-1 showing that he was cremated pursuant to the death on 31.5.1986. Therefore, this Court comes to the conclusion that a reasonable opportunity was given to the appellant and rest of the conclusion of the Commissioner regarding the date of death of Khedu Choudhary is a pure question of fact and not a substantial question of law. It depends upon the appreciation of evidence which the Commissioner was entitled to do. There is no substantial question of law that arises.
12. The next contention of the learned Counsel for the appellant is regarding the age of Khedu Choudhary. It has been contended that at the time of death of Khedu Choudhary he was not aged 40 years. On 9.7.1996, during her examination-in-chief, Lachhobai, AW 1 has stated that at the time of death, Khedu Choudhary was aged about 40 years. No cross-examination was directed against the testimony regarding age of Khedu Choudhary in the statement made by this witness after the ex parte order was set aside. Learned counsel for the appellant cannot take advantage of earlier statement made prior to passing of the ex parte order because that statement was not accepted as passed on the basis of ex parte order and a fresh order was passed. Even otherwise, in that statement dated 9.7.1996 too, she has stated that her husband Khedu Choudhary was aged about 40 years and she was married 10 to 15 years back. At the time of her marriage, her husband was aged about 25 years. Taking the age of Khedu Choudhary that he was aged about 25 years at the time of marriage, it appears that Lachhobai would be of 14 years. This too is a question of appreciation of evidence and I do not find that the finding of the Commissioner is perverse giving power to this Court to interfere in this appeal under Section 30 of the Act.
13. The further point that has been argued is regarding the income of Khedu Choudhary. In the statement made by AW 1, Lachhobai on 9.7.1996, it has been stated that her husband used to get Rs. 1,000 per month. This too appears to this Court to be a matter of evidence. No substantial question of law has been raised in this appeal regarding this point.
14. For the aforesaid reasons, this Court finds no merit in this appeal. The appeal is hereby dismissed without costs.