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Allahabad High Court · body

2005 DIGILAW 1819 (ALL)

CHAWLA TECHNO CONSTRUCTION LTD v. STATE OF U P

2005-09-15

V.K.SHUKLA

body2005
V. K. SHUKLA, J. M/s. Chawal a Techno Constructions Ltd. Has approached this Court questioning the validity of the order passed by respondent No. 2 Workmens Compensation Commissioner/assistant Labour Commissioner, Allahabad awarding compensation to the tune of Rs. 2,44,008/- (two lacs forty four thousand and eight only) with interest of 8% from the accident date 16-8-2002 till the date of payment. 2. Brief facts of the case giving rise to instant writ petition is that petitioner is a company registered under the Companies Act and is engaged in activity of building construction. Respondent No. 3 Sant Lal was engaged as Carpenter. On 16-8-2002, shuttering collapsed on account of which Sant Lal suffered from serious injuries. Petitioners have contended that purely on humanitarion ground Sant Lal was admitted in hospital wherein petitioner incurred expenditure of Rs. 4,77,869. 00/- towards treatment. Thereafter, after improvement of health of Sant Lal without any information left his work place. It has been contended that thereafter Sant Lal preferred claim under the Workmen Compensation Act, 1923 before Workman Compensation Commissioner, Allahabad. Petitioners have contended that on the said application dated 2-4-2004 being moved, written statement was filed on 22-7-2004 and therein categorical plea was taken to the effect that Workman Compensation Commissioner, Allahabad had no authority or jurisdiction to entertain the matter. Thereafter, impugned order in question has been passed. Against which present writ petition has been filed. 3. Short counter-affidavit has been filed in the present case and it has been contended that Workman Compensation Commissioner, Allahabad/assistant Labour Commissioner, Allahabad has jurisdiction and authority to entertain the claim and further as petitioner has statutory remedy of preferring appeal under Section 30 of the Workmen Compensation Act, 1923 and in order to avoid the deposit of payment with the Commissioner, the petitioner has tried to by pass the statutory remedy of filing appeal and has approached this Court. 4. Short rejoinder affidavit has been filed and therein it has been contended that Workman Compensation Commissioner, Allahabad has no authority or jurisdiction to deal with the matter and that alternative remedy of appeal is not an absolute bar as order impugned is without jurisdiction and principles of natural justice has been violated with impunity. 5. After pleadings mentioned above have been exchanged present writ petition has been taken up for final disposal with the consent of the parties. 5. After pleadings mentioned above have been exchanged present writ petition has been taken up for final disposal with the consent of the parties. Original record from the Office of Workman Compensation Commissioner, Allahabad has also been summoned and same is before this Court at the point of time when present writ petition has been taken up. 6. Sri Santosh Kumar Srivastava, Advocate, assailed the validity of the order passed by Workman Compensation Commissioner, Allahabad on the ground that as per Section 21 of Workmens Compensation Act, 1923 the Commissioner has no authority or jurisdiction even to process the application of claim without giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned and in the present case undisputably place of accident is not at all within territorial jurisdiction of Workman Compensation Commissioner, Allahabad and as no notice has been given in the manner prescribed to the Commissioner having jurisdiction over the area and the State Government concerned, as such entire proceedings are void and not at all in consonance with the statutory provisions, as such and the assumption of jurisdiction is totally unwarranted. 7. Sri D. K. Srivastava, Advocate on the other hand submitted that Workman Compensation Commissioner has full authority and jurisdiction to entertain claim application and he has rightly entertained the same and in present case petitioner has statutory remedy of appeal and as such this Court should refuse to exercise it discretion in favour of petitioner and writ petition is liable to be dismissed. 8. 8. In order to appreciate respective arguments which has been advanced Sections 21 and 30 of the Workmens Compensation Act, 1923 and the Workmens Compensation (Venue of Proceedings) Rules, 1996 are being looked into and are being quoted below: Section 21: - Venue of proceedings and transfer.- (1) where any matter under the Act is to be done by or before a Commissioner the same shall, subject to the provisions of this Act and to any rules made thereunder be done by or before the Commissioner for the area in which - (a) the accident took place which resulted in the injury or (b) the workman or in case of his death the dependent claiming the compensation ordinarily resides (c) the employer has his registered office; or Provided that no matter shall be processed before or by a Commissioner other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned. Provided further that where the workman, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or a workman in a motor vehicle or a company, meets with the accident outside India any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship, aircraft or motor vehicle resides or carries on business or the registered office of the company is situate as the case may be. Section 30 - Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner namely - (a) an order 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. Section 30 - Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner namely - (a) an order 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. (aa) an order awarding interest or penalty under Section 4-A. (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 workman or disallowing any claim of a person alleging himself to be such dependent; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of Section 12; or (e) an other 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 to 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. (2) The period of limitation for an appeal under this section shall be sixty days shall be applicable to appeals under this section. (3) The period of Section 5 of the [the Limitation Act, 1963] (36 of 1963) shall be applicable to appeal under this section, WORKMENs COMPENSATION (VENUE OF PROCEEDINGS) RULES, 1996 In pursuance of the provisions contained in sub-section (1) of Section 21 of the Workmens Compensation Act, 1923 (Act 8 of 1923) the Central Government hereby makes the following rules namely: - (1) Short title.- (1) These rules may be called the Workmens Compensation (Venue of Proceedings) Rules, 1996. (2) These rules shall come into force from the 1st day of October, 1996. 2. Definitions - in these rules, (a) "the Act" Means the Workmens Compensation Act, 1923. (b) "form" means a form appended to these rules. (c) "commissioner" means a Commissioner appointed under Section 20. 3. Processing of an application - (1) An application under Section 19 or Section 22 shall be processed before or by a Commissioner for the area in which - (a) the accident took place with resulted in the injury, or (b) the workmen or in case of his death the dependants claiming the compensation ordinarily reside or (c) the employer has his registered office ; Provided that no matter shall be processed before or by a Commissioner other than the Commissioner having the jurisdiction over the area in which the accident took place without his giving notice in Form-A to the Commissioner having jurisdiction over the area and the State Government concerned. (2) The Commissioner under Section 22 (1) (b) or (c) may initiate proceedings afresh or he may continue the previous proceedings initiated under Section 21 (1) (a) as if the" same or any its part had been taken before him if he is satisfied that in interest of the parties shall not thereby be prejudiced. FORM-a [see Rule 3] Notice Where a claim for compensation has been made by. . . . . . . . . (applicant) against. . . . . . . . . and the said applicant has claimed that he is entitled to file an application under clause (b) or (c) of Section 21 (1) of the Workmens Compensation Act, 1923: and whereas the undersigned is satisfied that the said applicant is entitled to file the aforesaid claim; Now, therefore, the Commissioner for Workmens Compensation. . . . . . . . . . . . . . . . . /government of. . . . . . . . . . . . . . is hereby given notice that the undersigned purposes to settle and claim of the applicant as provided under Act. Dated. . . . . . . . . . . . . . . 19 Commissioner 9. . . . . . . . . /government of. . . . . . . . . . . . . . is hereby given notice that the undersigned purposes to settle and claim of the applicant as provided under Act. Dated. . . . . . . . . . . . . . . 19 Commissioner 9. A bare perusal of provisions quoted above would go to show that under Section 21 detailed procedure to be adopted and adhered to in respect of venue of the proceedings and transfer of the proceedings has been dealt with. Section 21 provides that where any matter under the Act is to be done by or before a Commissioner the same shall, subject to the provisions of this Act and to any rules made hereunder be done by or before the Commissioner for the area in which (a) accident took place which resulted in the injury or (b) the workman or in case of his death the dependent claiming the compensation ordinarily resides or (c) the employer has his registered office. This particular Section 21 has a proviso wherein it has been provided that matter shall be processed before or by a Commissioner other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned. Workmens Compensation (Venue of Proceedings) Rules, 1996 has been framed by Central Government in exercise of power under sub- section (1) of Section 21 Workmens Compensation, Act, 1923 provide that an application under Section 19 or Section 21 shall be processed before or by a Commissioner for the area in which (a) accident took place which resulted in injury, or (b) the workman or in case of his death the dependent claiming the compensation ordinarily resides or (c) the employer has his registered office. This particular Rule 3 has a proviso which provides that no matter shall be processed before or by the Commissioner other than Commissioner haying jurisdiction over the area in which accident took place without his giving notice in Form-A to the Commissioner having jurisdiction over the area and the State Government concerned. This particular Rule 3 has a proviso which provides that no matter shall be processed before or by the Commissioner other than Commissioner haying jurisdiction over the area in which accident took place without his giving notice in Form-A to the Commissioner having jurisdiction over the area and the State Government concerned. Sub-Rule 2 of Rule 3 further provides that Commissioner under Section 21 (1) (b) or (c) may initiate proceedings afresh or he may continue the previous proceedings" initiated under Section 21 (1) (a) as if the same or any of its part had been taken before him if he satisfied that the interest of the parties thereby shall not be prejudiced. Thus, as per this Rule ordinarily it is the Commissioner having jurisdiction over the area in which the accident has taken place the authority to proceed with the claim petitioner under Section 21 (1) (a), however after giving notice in Form-A to the Commissioner having jurisdiction in whose area accident has taken place and the State Government, Commissioner in whose jurisdiction workmen or the dependent in case of death claiming the compensation ordinarily resides or the employer has his registered office can process the application and deal with the same. 10. Now on the touch stone of the provisions quoted above fact of the present case is to be seen. Undisputed position is that accident has taken place at Delhi and petitioner has no permanent abode at Delhi and after accident has taken place petitioner has shifted to his native place at Allahabad and thus, petitioner by all on account of his permanently staying at Allahabad can be treated as permanent to ordinarily resident of District Allahabad, which is much more than ordinarily resides and as such petitioner has to move an application at Allahabad. However, in the event of moving of application at Allahabad. An obligation was cast upon the Commissioner to send information in Form-A to the Commissioner having jurisdiction over the area where accident took place and State Government concerned at Delhi. 11. In the present case original record has been produced and Sri Shaliesh Kumar, Assistant Labour Commissioner who has been present in the Court, made statement that at no point of time any notice or information in Form-A was given to the Commissioner having jurisdiction over the area where accident took place and to the State Government. 11. In the present case original record has been produced and Sri Shaliesh Kumar, Assistant Labour Commissioner who has been present in the Court, made statement that at no point of time any notice or information in Form-A was given to the Commissioner having jurisdiction over the area where accident took place and to the State Government. Even record does not suggest that any attempt was made to send information in Form-A before proceeding to assume jurisdiction, and thus not effect of the same is that Commissioner had no authority or jurisdiction to process the application without giving notice in Form-A, to the Commissioner of the area where accident has taken place and the State concerned. Thus, processing of application itself was a futile exercise and Commissioner lacked territorial jurisdiction to deal with the matter in terms of the provision as contained in the proviso of Section 21 of the aforementioned Act and proviso to the Rule 3 of the Rules. 12. Now coming to the plea of alternative remedy which has been raised on behalf of respondents is to be seen. Section 30 of the Act provides for remedy of appeal and this fact is undisputed that against the order impugned, appeal can be filed. Filing of appeal requires fulfilment of various preconditions, and one such condition is deposit of entire amount with the Commissioner. Here at the point of time when writ petition had been filed this Court entertained the writ petition, and original record was also summoned to test the question of jurisdiction, (i) Alternative remedy is not to be treated as an, absolute bar when order itself is without jurisdiction and when principles of natural justice has not been complied with. See Whirlpool Corporation v. Registrar of Trade Marks. 1988 (8) SCC 1. Present proceedings discussed above clearly shows that Commissioner would have no authority or jurisdiction even to process the application, without giving notice in Form-A to the Commissioner having jurisdiction over the area in which accident took place and the State Government concerned and as no notice has been given as such entire proceedings are totally without jurisdiction. Present proceedings discussed above clearly shows that Commissioner would have no authority or jurisdiction even to process the application, without giving notice in Form-A to the Commissioner having jurisdiction over the area in which accident took place and the State Government concerned and as no notice has been given as such entire proceedings are totally without jurisdiction. Once it has been held that proceedings are without jurisdiction and original record has been produced and concerned officer has made statement that no notice was served as required then in the facts of present case it would be inappropriate to relegate the petitioner to the Forum of alternative remedy. 13. Consequently order passed by Workmen Compensation Commissioner dated 7-4-2005 is hereby quashed. However, at this stage Sub-Rule 2 of Rule 30 is also necessary to be looked into, inasmuch as, said rule empower the Commissioner under Section 21 (1) (b) or (c) to initiate the proceedings afresh or may continue the previous proceedings initiated under Section 21 (1) (a) as if the same or any of its part had been taken before him if he is satisfied that the interest of the party shall not thereby be prejudiced. Thus, after giving notice in Form-A to the Commissioner having jurisdiction over the area, in which accident took place and the State Government concerned the Commissioner is fully empowered to initiate proceeding from any stage and the only guideline which has to be kept in mind that interest of the parties shall not be prejudiced. 14. Consequently, present writ petition succeeds and is allowed. However passing of this order will not prevent the Workmen Compensation Commissioner, Allahabad to proceed with the matter after giving notice in Form-A to the Commissioner having jurisdiction over the area where accident took place and the State Government and keeping in view the provisions as contained under Sub-Rule 2 of Rule 3 of the Rules. No orders as to cost. Petition allowed. .