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2012 DIGILAW 15 (JK)

Ali Mohammad Mir v. State of J&K & Ors.

2012-01-31

HASNAIN MASSODI

body2012
1. Mohammad Shafi Padhar S/o Mahamadoo Padhar R/o Chaknarwah, Tehsil Banihal, District Doda,- respondent No.3 herein, on 24th June 2003 filed an application under section 21 Workmen's Compensation Act, 1923, before Commissioner Under Workmen's Compensation Act, (Assistant Labour Commissioner) Doda, pleading therein that he while under employment of the present petitioner, sustained multiple injuries, resulting in fracture to his right arm and right radius bones when he was unloading firewood from Truck No. JK01C 5070 — owned by the petitioner at Athwajan Pantha Chowk, Srinagar. The respondent No.3 insisted that the multiple injuries were sustained during course of employment making his employer petitioner herein liable to pay compensation to the Respondent No.3 under Workman's Compensation Act 1923. 2. The Commissioner on receipt of the application issued notices under registered cover to the present petitioner. The petitioner failed to appear and contest the application and was set ex-parte on 29.10.2003. 3. The Commissioner recorded evidence in exparte and on perusal of the evidence, awarded an amount of Rs.1,82,500/- with cost assessed at Rs.530/- to the respondent No.3. The award amount was to carry interest @ 12% per annum in the event it was not deposited within 30 days from the date of award i.e 23.2.2005. The Petitioner failed to make the payment constraining the petitioner to approach Special Tehsildar, Recoveries, Srinagar, with an application for recovery of award amount with cost and interest in accordance with the rules. The Special Tehsildar, Srinagar, on 15.5.2006 issued an arrest warrant against the petitioner and directed the matter to come up on 12.8.2006. 4. The petitioner instead of paying the award amount with interest and cost, has opted to approach this Court with the instant petition seeing quashment of award dated 23.2.2005, and the warrant issued by Special Tehsildar, Recoveries, Srinagar- respondent No.2 on the grounds set out in the petition. The respondents have not filed their reply. 5. Heard and considered. 6. Section 21 Workmen's Compensation Act 1923 deals with the venue of proceedings under the Act. It reads as under: 21. 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 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. (1A) If a Commissioner, other than the Commissioner with whom any money has been deposited under sections, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or moneys remaining with the latter and on receipt of such a request, he shall comply with the same. (1A) If a Commissioner, other than the Commissioner with whom any money has been deposited under sections, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or moneys 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 Commission 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 hands or invested by him for the benefit of 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 to whom any matter is so transferred shall, subject to rules made under this Act, inquire there into and, if the matter was transferred for report, return his report thereon or, if the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him. (4) On receipt of a report from a Commissioner to who 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] 7. The Central Government in exercise of powers under section 21 sub section (1) of the Workmen's Compensation Act has made Workmen's Compensation (venue of proceedings) Rules 1996 notified vide (A) G.S.R 451 (E) dated 25.9.1996. It would be advantageous to reproduce herein Rule 3 of the aforementioned Rules. Rule 3. The Central Government in exercise of powers under section 21 sub section (1) of the Workmen's Compensation Act has made Workmen's Compensation (venue of proceedings) Rules 1996 notified vide (A) G.S.R 451 (E) dated 25.9.1996. It would be advantageous to reproduce herein Rule 3 of the aforementioned Rules. Rule 3. Processing of an application — (1) An application under Sec. 19 or Sec.22 shall be processed before or by a Commissioner for the area in which (a) the accident took place which 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: Provide 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 Sec. 21 (1) (b) of (c) may initiate proceedings afresh or he may continue the previous proceedings initiated under Sec. 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 parties shall not thereby be prejudiced. 8. A conjoint reading of section 21 Workmen's Compensation Act 1923, Rule 3 of Workman's Compensation (venue of proceeding) Rules, 1996 reveals that jurisdiction to deal with all application for award of compensation under the Act lies with the Commissioner for the area in which the accident has taken place or where the workmen or in case of his death, the dependent claiming the compensation ----reside or where the employer has his registered office. However, while as the Commissioner having jurisdiction over the area in which the accident has taken place has unqualified and unconditional jurisdiction to deal with the application for award of compensation under the Act, such jurisdiction is not so unqualified and unconditional as regards the Commissioner for the area in which workman or in case of his death, the dependents claiming the compensation ordinarily resides or the employer has his registered office. It follows that where the application for award of compensation is made by a workman or in case of his death by his dependent before the Commissioner where such workman or the dependent as the case may be, ordinarily resides or where the employer has his registered office and chooses not to file such application before the Commissioner for the area in which the accident has taken place which resulted in injury, the Commissioner before whom the application is presented is duty bound to give notice before he processes the application in the form A prescribed under the Rules of 1996 to the Commissioner of the area wiv'iin which accident has taken place. 9. In the present case the Commissioner Workmen's Compensation Act, (Assistant Labour Commissioner) Doda, admittedly had no jurisdiction over the area were the accident had taken place. It was the Commissioner under Workmen's Compensation Act (Assistant Labour Commissioner) Srinagar, who had jurisdiction over the area i.e Athwajan, Panthachowk, where the accident according to Respondent No.3 had taken place. Respondent No.1, in the circumstances, before the application filed by the Respondent No.3, was processed, ought to have in terms of section 21 (1) proviso, given notice in form "A" of Workmen's Compensation (Venue of Proceedings) Rules, 1996, to the Commissioner Workmen's Compensation Act (Assistant Labour Commissioner) Srinagar and the State Government. Perusal of record available on file reveals that notice in the prescribed format was not given to the Commissioner Workmen's Compensation (Assistant Labour Commissioner) Srinagar, or to the State Government. 10. The respondent No.1, in the circumstance, having failed to follow the procedure laid down under section 21(1) proviso Workmen's Compensation Act 1923 and Rule 3 Workmen's Compensation (Venue of Proceedings) Rules 1996, lacked jurisdiction to entertain and deal with the application of respondent No.3 for award of compensation. The order impugned in the petition, resultantly, is outcome of an irregular exercise of jurisdiction and liable to be set aside in exercise of jurisdiction under article 226 Constitution of India read with section 103 Constitution of J&K. it needs no emphasis that an order of the Commissioner under Workmen's Compensation Act, or for that matter of any judicial authority made without jurisdiction or in irregular exercise of jurisdiction, is amenable to the writ jurisdiction of the Court. 11. So viewed, the petition is allowed and the impugned order dated 23.2.2005 passed by Respondent No.1, is quashed. 11. So viewed, the petition is allowed and the impugned order dated 23.2.2005 passed by Respondent No.1, is quashed. However, having regard to the purpose and the object of the Workmen's Compensation Act, 1923,- a welfare legislation the respondent No.1 is directed to issue notice in form "A" of Workmen's Compensation (Venue of Proceedings) Rules, 1996, to the Commissioner under Workmen's Compensation Act, (Assistant Labour Commissioner) Srinagar, i.e. the Commissioner having jurisdiction over the area were the accident took place and the State Government and thereafter proceed in the matter unmindful of intervening delay, if any, that may come in the way of the petitioner to get his grievance redressed. Disposed of.