Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 137 (JK)

Mohammed Hussain Mir v. State & Ors.

2012-03-30

MUZAFFAR HUSSAIN ATTAR

body2012
1. Respondent no. 3 filed application under the provisions of Workmen's Compensation Act, 1923 (for short" Act of 1923") against the writ petitioner before the Commissioner under Workmen's Compensation Act (Assistant Labour Commissioner) Kashtwar, on the ground that on 9th June, 2007 he was engaged by the writ petitioner along with other workers for extracting stones at village Thethmola Uri and one boulder hit his right hand which resulted in causing severe injuries and ultimately all the fingers of his right hand were amputated. It was also stated that the respondent no. 3 was being paid Rs, 4, 500/- as wages per month and was 20 years of age at the time the accident took place. On filing of the application under the Act of 1923 for grant of compensation, notice was issued to the writ petitioner through registered post. The registered envelop was returned with the report that the writ petitioner has refused to accept the same. Ex parte proceedings were initiated against the writ petitioner and respondent no. 3 was directed to lead evidence in support of his claim. After the evidence was produced before the Commissioner, the Commissioner passed an award in favour of the respondent no. 3 and against the writ petitioner, wherein respondent no. 3 was held entitled to receive compensation for an amount of Rs. 1,88,755/- plus Rs. 18,875/- as interest @ 12% per annum. The petitioner was directed to pay award amount of Rs. 2, 07,630/- in accordance with mandate contained in Section 4 of the Act of 1923 and to deposit the award amount with the Commissioner within thirty days from the date of announcement of the award. It was also provided that on failure of complying with the said direction, additional penalty as also interest shall be imposed. It is this award, which is called in question in this writ petition. 2. On notice issued, respondents have filed objections/reply affidavit. 3. Mr. Syed Manzoor, learned counsel for the writ petitioner, submitted that the impugned award is without jurisdiction, inasmuch as, the private respondent no. 3 was not a workman in terms of Section 2(n) of the Act of 1923 and in this behalf invited the attention of the Court to impugned award, wherein it is mentioned that respondent no. 3 was engaged as worker. 3 was not a workman in terms of Section 2(n) of the Act of 1923 and in this behalf invited the attention of the Court to impugned award, wherein it is mentioned that respondent no. 3 was engaged as worker. Learned counsel in support of his contention referred to and relied upon case titled Central Mine Planning and Design Institute ltd. v. Ramu Pasi & Anr, reported in AIR 2006 SC 678 . Learned counsel also referred to Section 21 of the Act of 1923, which is taken note of; "Venue of proceedings and Transfer- (1) Where any matter under this 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) The accident took place which resulted in the injury; or (b) The workman or in case of his death, the dependant claiming the compensation ordinarily resides; 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 jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government concerned. Provided further that, where the workmen, 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 residents or carries on business or the registered office of the company is situate, as the case may be. (1-A) if a Commissioner, other than the Commissioner with whom any money has been deposited under Sec. 8 proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or money remaining with the latter and on receipt of such a request, he shall comply with the same.] (2) If a Commissioner is satisfied [that any matter arising out of any proceedings pending before him] can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may, subject to rules made under this Act, order such matter to be transferred to such other Commissioner either for report or for disposal, and if, he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hand or invested by him for the benefit Ipf any party to the proceedings; Provided that the Commissioner shall not, where any party to the proceedings has appeared before him, make any order of transfer relating to the distribution among dependants of a lump sum without giving such party an opportunity of being heard; (3) The Commissioner go whom any matter is so transferred shall, subject to rules made under this Act, inquire thereto and, if the matter was transferred for report, return his report thereon or, if the matter was transferred for disposal, continue the proceeding as if they had originally commenced before him. (4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-section (2), the Commissioner by whom it was referred, shall decide the matter referred in conformity with such report. (4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-section (2), the Commissioner by whom it was referred, shall decide the matter referred in conformity with such report. (5) The State Government may transfer any matter from any Commissioner appointed by it to any other Commissioner appointed by it.]" Learned counsel submitted that Commissioner, Kishtwar had no jurisdiction to entertain the petition and deal with it without complying with first proviso of the aforesaid section, which provide 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 giving him notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned. Learned counsel submitted that writ of Certiorari has to be issued, where Court acts illegally and there is error on the face of record. Learned counsel further submitted, if authority usurps jurisdiction, the record is to be corrected by Certiorari. Learned counsel in this behalf referred to and relied upon case titled State of Madhya Pradesh, Appellant v. Babu Lal and Others, Respondents, reported in AIR 1977 SC 1718 . Learned counsel submitted that it has been specifically pleaded in the writ petition that respondent no. 3 was not engaged by the writ petitioner and that the Commissioner at Kishtwar lacked jurisdiction to entertain the application. Learned counsel also referred to and relied upon case titled Ram Deen Maurya (DR.), Appellant, v. State of Uttar Pradesh and Others, Respondents, reported in (2009) 6 SCC 735 and submitted that provison of law which is mandatory in nature has to be construed strictly. Learned counsel finally submitted that on these grounds, the writ petition deserve to be allowed. 4. Mr. N.A. Beigh, learned appearing counsel for respondent 3 submitted that this writ petition is not maintainable for the reason that against the award passed by the Commissioner under the Act of 1923, appeal under Section 30 thereof should have been filed by the aggrieved person. Learned counsel submitted that the appeal can be entertained by the High Court only when substantial question of law is involved and not otherwise. Learned counsel submitted that the appeal can be entertained by the High Court only when substantial question of law is involved and not otherwise. Learned counsel also submitted that lack of territorial jurisdiction to deal with the matter does not render the award illegal or without jurisdiction for the reason that the Commissioner was, otherwise, possessed of jurisdiction to deal with the case. Learned counsel in this behalf referred to and relied upon case titled Mantoo Sarkar v. Oriental Insurance Co. Ltd. & Anr. Reported in AIR, 2009 SC 1022. Learned counsel accordingly prayed for dismissal of the writ petition. 5. Mr. Hilal Akber Lone, learned DAG, submitted that the impugned award is legal and does not call for any interference and prayed for dismissal of the writ petition. 6. The Act of 1923 is a beneficial legislation. This Act has been engineered and designed to secure and protect the interest of worker class and that class which belongs to lowest strata of the society. The benefits flowing from the Act of 1923 have to be allowed and to be denied only in exceptional circumstances. 7. The submission made by learned counsel for the writ petitioner that the respondent no. 3 could not file the application before the Commissioner, for the reason that he was casual worker and not covered by Section 2 (n) of the Act of 1923, as also in view of the law laid down by the Hon'ble Supreme Court in Ramu Pasi's case, cannot be accepted for the reason that the judgment has been handed down by the Hon'ble Supreme Court on 8th December, 2005 and the Section 2 (n) which defined workman and which was referred to and relied upon in the said judgment has been omitted from the statute book by Workmen's Compensation (Amended) Act 2000, (Act No. 46 of 2000). The basis on which, the judgment is passed having been taken away by the amendment of legislature would not, thus, help the writ petitioner in sustaining his plea that the respondent-Commissioner could not entertain the claim of the respondent no. 3. Even otherwise respondent no. 3 was not a casual worker but was a worker as is reflected in the impugned award. 8. Be that as it may, as the definition of workmen has been amended, the judgment citied at bar would be of no help to the petitioner. 3. Even otherwise respondent no. 3 was not a casual worker but was a worker as is reflected in the impugned award. 8. Be that as it may, as the definition of workmen has been amended, the judgment citied at bar would be of no help to the petitioner. The second contention raised by the learned counsel for the petitioner that because of non compliance of the first proviso to Section 21 of the Act of 1923, the Commissioner at Kishtwar had no jurisdiction to deal with the case, again can not be accepted for following twin reasons; a. The issue raised is a primarily issue of fact. It is not specifically pleaded in the writ petition that the Commissioner at Kishtwar did not send any notice as countenanced by the aforementioned proviso, so the submission can not be entertained. The plea raised at the time of hearing, thus, can not be entertained; b. First Proviso of Section 21 does not oust the jurisdiction of the Commissioner at Kishtwar. The Commissioner at Kishtwar in terms of Section 21 (b) is possessed of the jurisdiction to deal with such type of claims. In the event application is filed before the Commissioner who is lacking territorial jurisdiction to hear the same, but is otherwise possessed of jurisdiction to entertain and deal with the same, it can not be said that he lacked inherent jurisdiction to entertain and decide the application. As already pointed out the Act of 1923 is beneficial legislature. The intendment flowing from the said Act has to be given full play and claim of a person who belongs to lowest strata of society can not be defeated so lightly. 9. For the above stated reasons this petition being meritless is dismissed alongwith all connected CMP(s). Interim direction, if any, shall stand vacated.