1. This case has been referred to us by the Commissioner for Workmen's Compensation, Bengal, for our opinion. The facts are that on 30th November 1934, the employers, Messrs. James Finlay & Co. Ltd., deposited with the Commissioner a sum of Rs. 1387-8-0 as compensation payable to the dependants of the deceased workman, Rahim Bux. On 23rd March 1935 the Commissioner made a distribution under Section 8(5) of the Act and apportioned the money as follows : to the widowed mother, Rasulan, Rs. 300, to the widow of the deceased, Gulbahar, Rs. 300 to the minor son of the deceased, Muhammad Sahaban, then 2 1/4 years old, the balance of Rs. 787-8-0. The sums awarded to the widowed mother and to the widow were paid to them in full in May 1935. The sum awarded to the minor son, Sahaban, was invested by the Commissioner in the Post Office Savings Bank under Section 8(7). In 1936, the Commissioner ascertained that the widowed mother and the minor son, Sahaban, were dead. The only surviving dependant was the widow, Gulbahar. Shortly afterwards the Commissioner received petitions from Syed Mia and Serajul Huq, who were Sahaban's deceased father's brothers, who claimed as heirs of the deceased minor Sahaban 5/6 of the money lying with the Commissioner in the name of Sahaban. On 12th November 1936, the Commissioner for Workmen's Compensation considered these claims and also the rights of the widow. His order was as follows:
Perused the report of the Sub-Deputy Magistrate, Sandwip. Defendants 1 and 3, that is, the minor son and the mother of the deceased are reported to be dead. The widow only exists. She is reported to have remarried, but I do not consider her remarriage as any reason at all for depriving her of the residuum of the money. The balance left here in the name of Sahaban is accordingly awarded to her (Gulbahar). The Post Office Savings Bank account for Sahaban may be closed and a new acoount opened in the name of Gulbahar.
2. Accordingly Rs. 815-14-11 was withdrawn from the account of the the deceased minor son and was invested under Section 8(7) in the Post Office Savings Bank in a fresh account in the name of the widow Gulbahar. In May 1938, Rs. 40 out of this was paid to Gulbahar at her request in order to enable her to pay expenses in connexion with the purchase of land. In the meantime after the Commissioner's order of variation of the award mentioned by which he rejected the claim of the minor son Sahaban's uncles, Syed Mia and Serajul Huq, the said Syed Mia and Serajul Huq instituted a suit in forma pauperis (i.e., Suit No. 164 of 1937) against Gulbahar in the Court of the Munsif at Sandwip in the district of Noakhali, the parties being residents of that locality. On 11th January 1938, that Court passed a compromise decree by which the Court ordered that the plaintiffs Syed Mia and Serajul Huq were entitled to two-thirds of the amount of Rs. 787-8-0 and that Gulbahar, that is, the deceased's widow, was entitled to the remaining one-third. The Government would be entitled to recover Rs. 59-10-0 for court-fees in the pauper suit from the shares of the plaintiffs and the defendant. These proceedings in the Court of the Munsif at Sandwip took place entirely behind the back of the Commissioner who knew nothing about them till he received a letter on 29th June 1938, from the Collector of Noakhali who stated that he intended to realise the Government dues of Rs. 59-10-0 on account of court-fees in the pauper suit. In the meantime Gulbahar alleged that the compromise decree was obtained by fraud. Then there was correspondence about the matter with the result that six questions of law have been put to us by the Commissioner for Workmen's Compensation, Bengal under Section 27 of the Act for our decision by way of opinion.
3. The first of these questions is:
Is the order of the Commissioner dated 12th November 1936, under Section 8(8) of the Act by which he varied the original order of distribution in favour of the sole surviving dependent Gulbahar (deceased workman's widow) good in law on its merits?
4. In my opinion it was. The deceased's mother was dead. The deceased's minor son had died. The result was that the circumstances of the widow were varied. Whether she had married again or not does not matter; she may be a widow again. What does matter is that when her son died she could no longer look forward to his support in the future if she should need it. In my opinion her circumstances had varied. The minor son also was dead. The question arose what shall be done with his share of the compensation? Such an alteration of the circumstances is, in my view, a variation of the circumstances within the meaning of Section 8(8) of the Act, and the Commissioner was entitled to make an order varying the former order of the allocation of compensation in order to meet the new circumstances that had arisen. It seems to me that the order that he made was fair and equitable. It gave the compensation which Sahaban was entitled to to his mother, who was the remaining dependent of the deceased workman. In my opinion it was a perfectly good and valid order.
5. The next question the Commissioner asks is "Was that order appealable"? There was no appeal from it and, as far as I can see, no question of law was involved. It was a question entirely within the Commissioner's discretion and no appeal could under the circumstances have been brought. The result is that the order was good in law. The next question the Commissioner asks is:
If that order is good in law, was a civil suit by the uncles of the deceased dependent (minor son) Sahaban in the Court of the Munsif of Sandwip In Noakhali barred by Section 19(2), Workmen's Compensation Act?
6. Section 19 (2) provides:
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.
7. This suit which was brought in the Court of the Munsif at Sandwip was brought to obtain distribution of the money which had formerly been allotted under the Act to Sahaban. Under Section 8(8) of the Act the Commissioner for workmen's compensation was the proper authority to make a redistribution. Consequently the Civil Court of the Munsif in Noakhali had no jurisdiction to deal with the matter at all.
8. The next question is:
If the suit was so barred, is the decree dated 11th January 1938 passed by the Court of the Munsif a nullity?
9. The answer is that it is invalid. As far as the Commissioner of Workmen's Compensation is concerned, it is of no effect. The fifth question is "if that decree is a nullity, can the plaintiffs (uncles of Sahaban) or the Collector of Noakhali execute the decree"? The answer is plainly 'no.'
10. The last question is:
Should payments be made to the sole surviving dependent Gulbahar at the discretion of the Commissioner in accordance with the Workmen's Compensation Act?
11. There can only be one answer to that which is 'yes.' We direct that the costs of Gulbahar be paid by the Commissioner out of the fund to which she is entitled, and we assess the costs in this ease at two gold mohurs.
B.K. Mukherjea, J.
12. I agree.