JUDGMENT
Jagannadha Rao, J.
1. This is an appeal by the two appellants against the order of the Commissioner under the Workmen’s Compensation Act (hereinafter referred to as the Act) in respect of an order of Apportionment of the compensation payable upon the death of the son of the appellants.
2. The appellants are the father and mother of the deceased while the respondent is the wife, the accident occured on 28-3-1977 and a sum of Rs. 18,000/- has now been determined as compensation payable under the Act.
3. Under the impugned order, dated 23rd December, 1978, the Commissioner has apportioned the compensation by giving Rs. 15,000/- to the respondent wife and Rs. 3000/- to the first appellant (the father), but nothing has been awarded to the second appellant (the mother). It is also pointed out by the learned Counsel for the appellants that the respondent filed a civil suit for a partition and obtained a decree in respect of a portion of the immoveable property of two acres belonging to the family. According to him, the position of the appellants, who are aged 75 years and 65 years respectively (as on 1980) is worse than the position of the respondent. Admittedly, the respondent has not borne any children to the deceased.
4. The main grievance of the learned Counsel for the appellants it with regard to the procedure abopted by the Commissioner in making the apportionment under the provisions of Section 3(4) of the Act read with Rules 23(1) and 43 of the A.P. Workmen’s Compensation Rules, 1958 and G.O. Ms. No. 1717, Industries Co-operation and Labour Deptt. dt. 23-8-1955 and G.O. 786 (Labour-4) Department dt. 21-4-1966. According to the learned Counsel, the Commissioner ought not to have called for a report from the Assistant Labour Officer, Karimnagar I, and passed the impugned order without any further notice to the appellants or inquiry.
5. It is true that the award in question has been made sometime in 1978 and this appeal which was preferred by the parents of the deceased in 1980, has come up for disposal in this Court after considerable delay. But even so, having regard to the facts and circumstances of the case, 1 am of the view that this Court should not refrain from interfering with the order of the lower Court, if really the procedure adopted by the Commissioner has been in violation of principles of natural justice or is otherwise not in accordance with law.
6. Section 8 of the Act deals with distribution of compensation Sub-clauses (4) and (5) of Section 8 reads as follows:
(4) On the deposit of any money Under Sub-section (1) (as compensation in respect of a deceased workman) the Commissioner (shall deduct) there from the actual cost of the Workman’s funeral expenses, to an amount not exceeding (fifty rupees) and pay the same to the person by whom such expenses were incurred, and shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependant to appear before him on such date and he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made Under Sub-section (4), be apportioned among the dependants of the deceased workman or any of them in such proportion as the Commissioner, thinks fit or may in the discretion of the Commisioner be alloted to any one dependant.
7. It is clear from the aforesaid provisions that the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. It is also provided in Sub-clause (4) that the Commissioner, if he is satisfied after the enquiry which he may deem necessary that no dependant exists, he shall repay the balance of the money to the employer on application by it, furnish a statement showing in detail all disbursements made. It was provided in Sub-clause (5) that the Commissioner shall apportion the compensation among the dependants of the deceased or any of them in such proportion as he thinks fit, or may, in his discretion, be alloted to any one dependant.
8. Coming to the Rules made in the A.P. Workmen’s Compensation Rules 1958, Part V, the rules starting from Rule 19 to Rule 43 deal with the procedure before the Commissioner. Rule 43 which deals with apportionment of compensation among the dependants, states that the provisions of this part except those contained in Rules 26, 27 and 39 shall, as far as may be apply in the case of any proceedings relating to the apportionment of compensation among dependants of a deceased workman.
9. In the impugned order the Commissioner has referred Rule 23(1) of the Rules. But that Rule states that on receiving an application of the nature referred to in Section 22, the Commissioner may examine the applicant on oath or may send the application to any officer authorised by the State Government in this behalf and direct such officer to examine the applicant and his witnesses and forward the record thereof to the Commissioner. Though Rule 23(1) is by force of the language employed therein, is applicable only to enquiries arising under Section 22, because of the provisions of Rule 43, the said procedure contemplated by Rule 23(1) is also applicable to cases relating to apportionment arising under Section 8(4) of the Act. It is, therefore, clear from Rule 23 in which the procedure is envisaged that it can be made applicable not only for cases arising under Section 22 but also for cases arising under Section 8(2) of the Act. Rule 23 reads as follows:
23. Examination of applicant: (1) On receiving an application of the nature referred to in Section 22, the Commissioner may examine the applicant on oath or may send the application to any officer authorised by the State Government in this behalf and direct such Officer to examine the applicant and his witnesses and forward the record thereof to the Commissioner.
(2) The substance of any examination made Under Sub-rule (I) shall be recorded in the manner provided for the recording of evidence in Section 25.
10. From a reading of the said rule, it is clear that the Commissioner may examine the applicant on oath or may send the application to any officer authorised by the State Government in this behalf and direct such officer to examine the applicant and his witnesses and forward the record to him (the Commissioner). The substance of any examination of the witnesses made under this rule is to be recorded in the manner provided in Section 25 of the Act. Section 23 states that the Commissioner shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds, and such memorandum shall be written and signed by the Commissioner with his own hand and should form part of the record. A combined reading of Rule 23 and Section 25 would show that it is always not necessary for the Commissioner to record evidence, but that it is open to him to direct any other officer authorised by the State Government to examine witnesses and send the record to him.
11. In the face of the above provisions of the Rules and the Act, the contention of the learned Counsel for the appellants that the Commissioner in the present case ought not to have had the enquiry conducted by the Asst. Labour Officer, Karimnagar-I is not correct. Under the provisions aforementioned, it is open to the Commissioner to have the evidence recorded by any other authorised officer and have it sent upto him. This contention of the learned Counsel for the appellants is therefore rejected.
12. The question that then remains is whether a further notice ought to have been given to the appellants after the record of the case was received from the Assistant Labour Officer.
13. The final order passed by the Commissioner does not reveal that any further opportunity was given to the appellants. It is here that the observance of the principles of natural justice arises. When the appellants, as the parents of the deceased have put in a claim before the Commissioner it has necessary for him to give them a reasonable opportunity to know what is contained in the report or record sent by the Assistant Labour Officer to the Commissioner. If the same was not done, there was a clear violation of principles of natural justice.
14. In the present case, the Commissioner has not given any reasons for not awarding any part of the compensation to the mother of the deceased, viz., the 2nd appellant nor has he given any reasons as to why only Rs. 3,000/- was awarded to the father.
15. I am not deciding one way or the other the question as to whether the denial of compensation to the mother of the deceased is just or not and I am not also deciding whether the award of only Rs. 3,000/- to the father is just or not. It should not be understood that this Court has decided that the apportionment is unjust. That is a matter to be redetermined by the Commissioner after following the procedure envisaged in the Act and after giving reasonable notice to all the parties and placing before them the report of the Assistant Labour Officer. Before apportioning the compensation, the Commissioner will certainly bear in mind the provisions of Section 2(1)(d) of the Act which defines “dependant”.
16. Under Sub-clause (iii) (b) of Section 2(1)(d) the parents of the deceased (other than the widowed mother) are entitled to share in the compensation only if they are either wholly or partly dependant on the earnings of the workman at the time of his death. It is, therefore, necessary for the parents to prove before the Commissioner that they were dependants of the deceased at the time of his death, in the manner mentioned in the above provision. For establishing the said fact of dependency, it is necessary that the parents should have been given a reasonable opportunity before the Commissioner, after receipt of the report of the Assistant Labour Officer.
17. In case it is established that the mother of the deceased was not either wholly or partly depending on her son, she will not be entitled to any part of the compensation. But in case it is proved that she was depending on her son either wholly or partly, a portion of the compensation will be payable to her also. Likewise, it will be open to the father to establish the nature and extent of his dependance on his son. For that purpose the other income of the parents from the property as on the date of the death of the deceased may also have to be taken into consideration.
18. Unfortunately the order of the Commissioner is a very cryptic order without assigning reasons and it has become necessary to remit the matter back to the Commissioner even though considerable time has elapsed from the date of the order under appeal. I wish to make it clear that it is not my intention to say anything on the merits of the case or to say that the apportionment already made is wrong. I have only laid down the procedure that had to be followed by the Commissioner. Before making an order of apportionment, the Commissioner has to bear in mind that it is also necessary that he should give reasons as to why he proposes to make any particular mode of apportionment.
19. If the money has already been paid to the respondent, there will be no need to recover it back pending the further enquiry ordered by me in this appeal. Such a question may or may not arise till after the publication of the result of the fresh enquiry which has to be now conducted. Of course, in the event of the Commissioner coming to the same conclusions once again, there will be no need to recover any amount from the respondent. If in case any change is made by awarding further amounts to one or the other or both, of the appellants such a question might arise.
20. Subject to the above observation this appeal is allowed and the matter is remitted back to the Commissioner. No cost.
21. The Commissioner is directed to issue notice to the parties, give them copies of the report of the Assistant Labour Officer and conduct such further enquiry as he deem it necessary or record such further evidence as the parties may like to produce before him and dispose of the matter afresh in accordance with law.