Tara Mallick v. Executive Engineer(Electrical), Berhampur Electrical Divn.
2014-09-01
A.K.RATH, AMITAVA ROY
body2014
DigiLaw.ai
Judgment Heard Mr. B. Mohanty, learned counsel for the appellant and Mr. A. Das, learned counsel for the respondent Nos. 1 & 2. 2. The subject matter of assailment in the instant appeal is the judgment and order dated 22.08.2012 passed in W.P.(C) No. 31909 of 2011 and FAO No. 595 of 2011 analogously disposing of the same. 3. Facts in brief are that the son of the appellant herein, on 24.05.2011, while working under a contractor, had died out of electric shock in front of OSRTC Garage of Bijipur Church Road. She (appellant) as claimant, filed W.C. Case No. 38 of 2011 under the Workmen’s Compensation Act, 1923 (for short, hereinafter referred to as “the Act”) before the Commissioner for Employees Compensation, Berhampur, Ganjam, furnishing her present and permanent address as “At/PO-Kankia, P.S. Golanthara, District-Ganjam”. She (appellant) also simultaneously filed another application, being W.C. Case No. 253-D of 2011, under the Act before the Commissioner for Workmen’s Compensation-cum-Asst. Labour Commissioner, Cuttack on 22.6.2011 disclosing her residence to be at Bali Sahi, Cuttack under Madhupatna Police Station. 4. In her statement on oath in W.C. Case No. 38 of 2011, she stated that she had not filed any case in any other forum on the same cause of action. Be that as it may, by order dated 18.07.2011 the W.C. Case No. 253-D of 2011 was disposed of awarding a sum of Rs. 3,27,100/-. Being aggrieved the respondent herein filed FAO No. 595 of 2011 before this Court. In the said proceeding, a cross-objection was also filed by the contractor concerned. 5. Vis-à-vis the accident, it was asserted on behalf of the respondents herein that on 24.05.2011 an unknown person climbed the electric pole in front of the OSRTC Garage without taking line clearance and thus suffered electric shock, whereupon, getting the message, the power supply was disconnected. That due to electric shock, the person concerned had died was admitted. It was urged as well that by withholding material facts, another application was filed before the Commissioner for Workmen’s Compensation-cum-Asst. Labour Commissioner, Cuttack and that without issuing a notice in the latter proceeding, compensation was awarded by an ex-parte judgment and order dated 18.07.2011. That the applicant (mother of the deceased) was not a resident of Cuttack was highlighted. 6.
It was urged as well that by withholding material facts, another application was filed before the Commissioner for Workmen’s Compensation-cum-Asst. Labour Commissioner, Cuttack and that without issuing a notice in the latter proceeding, compensation was awarded by an ex-parte judgment and order dated 18.07.2011. That the applicant (mother of the deceased) was not a resident of Cuttack was highlighted. 6. The learned Single Judge, having regard to the relevant facts, by order dated 3.7.2012 directed the Inspector-in-Charge, Madhupatna Police Station to enquire into the matter and furnish a report, more particularly, on the aspect as to whether the appellant (applicant) was a resident of Bali Sahi in the district of Cuttack or not. In the report, which was submitted, it was stated in categorical terms that she was not a resident of Bali Sahi under Madhupatna Police Station in the district of Cuttack. 7. Learned Single Judge, noticing this disclosure and also the fact that she had not appeared before the Commissioner for Workmen’s Compensation-cum-Asst. Labour Commissioner, Cuttack, in the exercise of jurisdiction under Article 227 of the Constitution of India set aside the order dated 18.07.2011 passed in W.C. Case No. 253-D of 2011 and dropped the said proceeding. Thereby, it was further directed that the proceeding in W.C. Case No. 38 of 2011 pending before the Commissioner for Employees Compensation, Berhampur, Ganjam would continue and left the parties to adduce their evidence and advance pleas to prove their cases before the said forum. Accordingly, the writ petition as well as the FAO was allowed and the statutory deposit made by the respondents herein was ordered to be refunded with accrued interest on proper application. 8. Whereas, with reference to Section 21 of the Act, Mr. B. Mohanty, learned counsel for the appellant has argued that both the proceedings at Berhampur and Cuttack were maintainable, Mr. A. Das, learned counsel for the respondent has argued to the contrary contending that such a course amounts to abuse of process of law and ought to be discouraged. It has also been submitted that in the attendant facts and circumstances, as on the same cause of action two parallel proceedings had been initiated at two different forums, the learned Single Judge had rightly quashed the W.C. Case No. 253-D of 2011 in the Court of Commissioner for Workmen’s Compensation-cum-Asst.
It has also been submitted that in the attendant facts and circumstances, as on the same cause of action two parallel proceedings had been initiated at two different forums, the learned Single Judge had rightly quashed the W.C. Case No. 253-D of 2011 in the Court of Commissioner for Workmen’s Compensation-cum-Asst. Labour Commissioner, Cuttack, as the fact finding enquiry revealed that the appellant (claimant) was not a resident of Bali Sahi within the district of Cuttack. 9. Upon hearing the learned counsel for the parties and on consideration of the materials available on record, we are of the considered opinion that no case has been made out for interference with the impugned judgment and order. Though Section 21 of the Act identifies the venue of a proceedings thereunder, it is apparent there from that those are to be availed in the alternative and not together. Further, the report submitted by the Inspector-in-Charge of Madhupatna Police Station has disclosed in categorical terms that the mother of the deceased (claimant) was not a resident of Bali Sahi in the district of Cuttack at the relevant point of time. 10. In this view of the matter, on a cumulative consideration of all materials available, we are of the considered view that the learned Single Judge has rightly dropped the W.C. Case No. 253-D of 2011 instituted in the Court of Commissioner for Workmen’s Compensation-cum-Asst. Labour Commissioner, Cuttack and had annulled the order dated 18.07.2011 passed therein. We find ourselves in complete agreement with the direction issued for continuance of W.C. Case No. 38 of 2011 pending in the court of Commissioner for Employees Compensation, Berhampur, Ganjam and disposal thereof in accordance with law. The appeal thus fails and is dismissed.