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2003 DIGILAW 166 (AP)

Excise Superitnendent v. Kundena Bhagyamma

2003-01-31

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD the Government Pleader for Land Ceiling representing the appellants and Sri K. Narasimhachari representing the first respondent-claimant. ( 2 ) THE appeal is filed by the Excise Superintendent, Mahaboobnagar, against the order of the Commissioner for Workmen s Compensation passed in Case No. WC/356/1996 (F) dated 4-5-1998 under Section 32 of the Workmen s Compensation Act, 1963, herein after referred to as "the Act" in short for convenience. This C. M. A was filed on 26-10-1998. It is not in dispute that the deposit of amount was not made at the time of instituting the appeal and the certificate by the Commissioner to the effect that the appellant has deposited the suit amount also had not been enclosed along with the appeal. As can be seen from the record, the C. M. A came up for admission and was admitted on 2-2-1999. No doubt, the learned counsel representing the Government had explained certain circumstances under which the mistake occurred. But, the fact remains that the amount was deposited on 9-10-2002. Subsequent thereof on 24-1-2003 it was represented that there was urgency in the matter since the claimant was trying to withdraw the amount. ( 3 ) HENCE on 24-1-2003 this Court passed the following Order:"heard both the learned Counsel. Learned Counsel for the Petitioner/appellant had submitted that the amount was deposited after the matter was admitted. Sri Narasimhachari, K. had raised a preliminary objection relating to the maintainability of the appeal itself, on the ground that making deposit is a condition precedent and the appeal should be accompanied by a certificate issued by the competent authority. However, learned counsel for the petitioner/appellant submitted that there is urgency in the matter and there is likelihood of the amount being withdrawn by the 1st respondent- claimant in the meanwhile. In view of the facts and circumstances of the case, there shall be interim stay of disbursement of amount only for a period of two weeks. Notice. Post next Thursday i. e. 30-1-2003 ". ( 4 ) THAT is how, the matter had come up before this Court on 31-1-2003. The learned Government Pleader for Land Ceiling had placed strong reliance on a Division Bench judgment of this Court reported in NEW INDIA ASSURANCE COMPANY LIMITED Vs. Notice. Post next Thursday i. e. 30-1-2003 ". ( 4 ) THAT is how, the matter had come up before this Court on 31-1-2003. The learned Government Pleader for Land Ceiling had placed strong reliance on a Division Bench judgment of this Court reported in NEW INDIA ASSURANCE COMPANY LIMITED Vs. A. SENAPATHI REDDY and had contended that pre-condition of availing the appeal remedy is only a curable defect and hence the appeal can be entertained even if the compensation is paid subsequent to the filing of the appeal. The learned Government Pleader had taken me through the said judgment in general and had referred to paragraph 3 of the judgment in particular in this regard. The Learned Government Pleader had further made elaborate submissions relating to other merits and demerits of the matter, which I am not inclined to touch at this stage. ( 5 ) PER contra, Sri K. Narasimhachari representing the first respondent-claimant had submitted that at any stretch of imagination this view expressed by the Division Bench in the decision referred to supra can not be said to be laying down the correct law in view of the language employed in the third proviso to Section 30 (1) of the Act. The learned Counsel also had placed strong reliance on another decision of the Division Bench of this Court in G. VENKATESWARA RAO Vs. DIVL. MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED and contended that in view of the said judgment an appeal preferred without deposit of compensation amount payable under the order of the Commissioner appealed against and without accompanying a certificate of Commissioner to that effect as required by the third proviso to Section 30 (1) of the Act is not maintainable. The learned counsel had further cited two decisions in G. R. SANE Vs. D. S. SONAVANA and COMPANY and in NANDY Vs. G. M. E. I. RAILWAY to support his contention. Apart from these decisions, the learned counsel also had brought to my notice the judgment of learned single Judge of this Court in which the party therein is a party to the decision of Division Bench first cited supra decided on 11-6-2001. Section 30 (1) of the Act reads as hereunder:-"30. G. M. E. I. RAILWAY to support his contention. Apart from these decisions, the learned counsel also had brought to my notice the judgment of learned single Judge of this Court in which the party therein is a party to the decision of Division Bench first cited supra decided on 11-6-2001. Section 30 (1) of the Act reads as hereunder:-"30. APPEALS:- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely--- (a) an order as awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (a) an order awarding interest or penalty under Section 4a; (b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-sec. (2) of Section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions; Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees: Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties: provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against;" ( 6 ) IT is needless to say that the language to the proviso is in mandatory form and, however, the two Division Benches referred to supra had expressed conflicting views. It is brought to my notice another decision of the Division Bench in MAHENDRA KUMAR Vs. REAL FAB. AUTONAGAR. It is brought to my notice another decision of the Division Bench in MAHENDRA KUMAR Vs. REAL FAB. AUTONAGAR. No doubt, the learned Government Pleader for Land Ceiling had submitted that the decision of the Division Bench in NEW INDIA ASSURANCE COMPANY LIMITED Vs. A. SENAPATHI REDDY (1 supra) being the latest decision, this Court is bound to follow. The counsel for the first respondent-claimant had, however, submitted that in view of the fact the latter decision being clearly contrary to the very language employed in the statute, the prior decisions of the Division Benches referred to supra alone need be followed. No doubt, Sri K. Narasimhachari also contended that in fact the appellant while getting the matter admitted had played fraud on the Court without bringing this fact to the notice of the Court. ( 7 ) IN view of the general importance of the question involved and in the light of the conflicting decisions of the Division Bench referred to supra, I am inclined to refer the question to be answered by the appropriate competent Division Bench whether the appeal under Section 30 (1) of the Workmen s Compensation Act be maintained without complying with the mandatory conditions specified in the third proviso to Sub- Section (1) of Section 30 of the said Act. In view of the fact that interim stay of disbursement of amount is only for a period of two weeks it is extended now for a further period of four weeks only enabling both the parties to advance their contentions before the appropriate Division Bench. Opportunity is also given to the first respondent-claimant to move the concerned Division Bench for getting the matter disposed of at an early date for the purpose of disbursement of the amount. ( 8 ) IN the light of the facts and circumstances of the case, the office is directed to place this matter before the Honourable the Chief Justice for the purpose of fixing an early date for hearing of the appeal on the question referred to supra in view of the urgency involved in the matter forthwith.