1. Heard Mr. Amresh Sinha, learned Counsel for the petitioner and Mr. Siddarth holding brief of Mr. Alok Sharma appearing for respondent No. 2 as well as Mr. S.S. Nigam, learned Counsel for respondent Nos. 3 and 4.

2. By this petition, the petitioner has sought relief for quashing the orders dated 20th December, 2003 and 20th January, 2004 passed by Workmens Compensation Commissioner, Meerut in W.C. Case No. 14 of 1998, contained in Annexure Nos. 10 and 12 respectively to this petition. A further relief in the nature of mandamus directing the respondents not to recover the amount from the petitioner on the basis of judgment and order dated 20th December, 2003 passed by Workmens Compensation Commissioner, Meerut is also sought for.

3. The aforesaid reliefs are rest on the allegations that respondent No. 2 filed a claim petition in respect of injuries sustained by him during the course of his employment with the respondent No. 3 (M/s. Dewan Tyer Ltd.) on 22nd November, 1996. The respondent No. 2 (M/s. Dewan Tyres Ltd. Partapur, Meerut) contested the claim by filing written statement. Prior to filing of its written statement an application dated 28th January, 1998 was filed by respondent No. 3 denying the employment of claimant respondent with it directly and alleged that the claimant might have been engaged by M/s. Gupta and Company, Ganj Bazar, Sadar, Meerut, contractor, as such M/s. Gupta and Company and the insurer of the employees of the Gupta and Company/the petitioners company may be impleaded as parties in the said claim petition resulting which Gupta and Company was impleaded as respondent No. 2 and petitioner/Oriental Insurance Company was impleaded as respondent No. 3 in the said claim petition. It is stated that the Workmens Commissioner without service of summons upon the petitioners company allowed the claim petitionvide his ex parte judgment and order dated 8th May, 2001 against the petitioner and awarded a sum of Rs. 1,06,267.60 as compensation to the workman along with 12% simple annual interest thereon from the date of accident to the date of such payment payable by the petitioner. Feeling aggrieved against the said judgment and order dated 8th May, 2001 the petitioner moved an application on 25th June, 2001 for recall of the said order, thereupon the Workmens Compensation Commissioner, Meerutvide his judgment and order dated 3rd May, 2002 recalled the judgment and order dated 8th May, 2001 and held that the petitioners company shall be liable to pay only 60% of awarded amount of compensation along with 12% simple annual interest thereon and remaining 40% of awarded amount of compensation with 12% simple annual interest thereon shall be paid by Gupta and Company respondent No. 2 of the claim petition (respondent No. 4 of the writ petition). It is also stated that petitioner has paid aforesaid 60% compensation along with interest thereon to the workman.

4. It is stated that after said order dated 3rd May, 2002 an application dated 3rd June, 2002 was filed on behalf of the respondent No. 4 of writ petition (respondent No. 3 of claim petition) to recall the order dated 3rd May, 2002, thereupon the Workmens Compensation Commissionervide his judgment and order dated 20th December, 2003 has recalled his earlier order dated 3rd May, 2002 and restored/confirmed his another earlier order dated 8th May, 2001. A true copy of the aforesaid order dated 20th December, 2003 passed by Workmens Compensation Commissioner is on record as Annexure-10 to the writ petition. It is further stated that the order dated 20th December, 2003 was passed without any notice to the petitioners company and was ex parte as such an application dated 15th January, 2004 was filed on behalf of the petitioners company to recall the order dated 20th December, 2003 and to exempt the petitioners company from payment of any amount as directed by the order dated 20th December, 2003. The Workmens Compensation Commissioner has rejected the application dated 15th January, 2004vide his order dated 20th January, 2004, a copy of which is on record as Annexure 12 to the writ petition. These two orders dated 20th December, 2003 and 20th January, 2004 are under challenge before this Court through instant writ petition.

5. It is submitted that the order dated 20th January, 2004 is cryptic, and without any reason, therefore, is liable to be set aside. Further submission of learned Counsel for the petitioner is that the order dated 3rd May, 2002 passed by Workmens Compensation Commissioner was fully justified and there was no justification to set aside the aforesaid order by subsequent order dated 20th December, 2003 whereby he has virtually reviewed his earlier order dated 3rd May, 2002 and shifted entire liability for payment of the compensation upon the petitioner Insurance Company. There is conspicuous absence of power of review with the Workmens Compensation Commissioner in the Workmens Compensation Act, 1923 as such impugned orders are wholly arbitrary, illegal and are not sustainable in the eye of law.

6. I have considered the submissions of learned Counsel for the parties and also perused the record.

7. From the perusal of record it appears thatvide judgment and order dated 8th May, 2001 passed in W.C. Case No. 14 of 1998, Jaiveer Singh v. M/s. Dewan Tyres Ltd. & Others, the Workmens Compensation Commissioner has awarded a sum of Rs. 1,06,257.60 as compensation to the workman-respondent No. 2/Jaiveer Singh along with 12% interest thereon from the date of accident to the date of payment. In the aforesaid order the Workmens Compensation Commissioner has held that the employees of Gupta and Company (respondent No. 4 of the writ petition) were insured with the petitioners company as finding the injuries during the course of employment of respondent Nos. 3 and 4, the entire liability to pay compensation was fastened to the petitioner. Thereupon, it appears that on an application moved on behalf of petitioner that the order dated 8th May, 2001 passed by Workmens Compensation Commissioner was ex parte against the petitioner, after hearing the parties, the order dated 3rd May, 2002 was passed by Workmens Compensation Commissioner whereby the liability for payment of compensation was apportioned by him and 60% amount of compensation along with interest thereon was directed to be paid by the Insurance/petitioners Company and 40% of remaining amount of compensation with interest thereon was liable to be paid by the employer/respondent. Feeling aggrieved by the aforesaid order passed by Workmens Compensation Commissioner the respondent No. 4 namely M/s. Gupta and Company has filed an application before Workmens Compensation Commissioner, upon which the order dated 3rd May, 2002 was recalled and the earlier order dated 8th May, 2001 was restored by Workmens Compensation Commissionervide his Judgment and Order dated 20th December, 2003. Against this order the petitioner has moved application which has been rejected by Workmens Compensation Commissionervide his order dated 20th January, 2004 on the ground that the judgment has already been passed in the matter, therefore, there is no justification for such application moved by the petitioner.

8. Although learned Counsel for the petitioner has submitted that the order dated 20th December, 2003 was passed by Workmens Compensation Commissioner without hearing the petitioner and he has no jurisdiction to review his earlier order on merit but he could not point out anything as to what submission he could have made about the legality of apportionment of compensation done by the Workmens Compensation Commissioner whereby 60% of the compensation along with interest thereon was held to be payable by the petitioner Insurance Company and remaining 10% amount of the compensation along with interest thereon was held to be paid by employer Gupta and Company (Respondent No. 4), in case he would have been given opportunity of hearing before the Workmens Compensation Commissioner before the impugned order dated 20th December, 2003 was passed by Commissioner, as such in absence of any legal basis of such apportionment of said compensation between the employer of workman and Insurance Company, even if the opportunity would have been given to the petitioner by Workmens Compensation Commissioner, in my opinion, the petitioner could not improve his case before the Workmens Compensation Commissioner in wake of indisputable factual and legal position of the case. Therefore, it is not necessary for this Court in exercise of writ jurisdiction under Article 226 of the Constitution to set aside the aforesaid orders merely on the ground that the aforesaid orders were passed without hearing to the petitioner. In my opinion, affording such opportunity of hearing to the petitioner again before the Commissioner in view of law laid down by Apex Court in M.C. Mehta v. Union of India and Others, VI (1999) SLT 177=AIR 1999 SC 2583 [LQ/SC/1999/645] , Canara Bank and Others v. Sri Debasis Das and Others, III (2003) SLT 729=JT 2003 (3) SC 183 [LQ/SC/2003/367] and Canara Bank v. V.K. Awasthi, III (2005) SLT 461=JT 2005 (4) SC 40 [LQ/SC/2005/425] , would be useless formality without any useful purpose.

9. Since there was no legal foundation for apportionment of compensation between the employer and Insurance Company when the employee has been admittedly insured by the employer with the petitioners/Insurance Company, in such situation the liability for making payment of such compensation was of the Insurance Company, therefore, merely by subsequent order passed on 20th December, 2003 by Commissioner the earlier order dated 3rd May, 2002 was set aside and the order dated 8th May, 2001 was restored, the impugned order dated 20th December, 2003 cannot be found faulty. I am of the considered opinion that in case, the order dated 20th December, 2003 is set aside, in that event of the matter an illegal order dated 3rd May, 2002 would be restored, as such in such situation, this Court can refuse to exercise extraordinary writ jurisdiction to restore an illegal order passed by Workmens Compensation Commissioner. The aforesaid view taken by me also finds support from the decision of Honble Apex Court rendered in Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 [LQ/SC/1965/259] and Mohammad Swalleh v. Third Addl. District Judge, Meerut, AIR 1988 SC 94 [LQ/SC/1987/742] , wherein the Apex Court has held that the Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law.

10. Accordingly I do not find any good ground to interfere in the impugned orders passed by Workmens Compensation Commissioner. Thus the writ petition stands dismissed.