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2016 DIGILAW 596 (JK)

Oriental Insurance Company Limited v. Pyar Singh

2016-11-21

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : 1. These L.P. appeals are preferred against the common order dated 26.09.2016 made in OWP No. 689/2013 and OWP No. 711/2013 by the Writ Court, wherein the writ petitions filed by the appellant-Insurance Company challenging the award passed by the Commissioner under the Workmen Compensation Act, 1923 (renamed as Employees Compensation Act, 1923 by Amendment Act, 2000) ordering compensation of Rs. 6,45,800/- and Rs. 4,67,101/- respectively along with interest @ 12% per annum, were dismissed. 2. The Writ Court dismissed the writ petitions by holding that there is an efficacious alternate remedy available to the appellant by way of filing appeal under Section 30 of the Employees Compensation Act, 1923 and based on the earlier decision of this Court reported in 2002 ACJ 282 (United India Insurance Company Ltd. V. Deputy Labour Commissioner and others), the Writ Court disinclined to entertain the writ petitions. 3. The order passed in the writ petitions is challenged in both the L.P. Appeals principally on the ground that even if alternate remedy is .available, the writ petition is maintainable and the discretion is vested with the High Court to entertain or not to entertain the writ petition and the writ court ought to have entertained the writ petitions on the facts of the cases. 4. Learned counsel appearing – for the appellant IS not disputing the fact that respondent No.1 has approached the Commissioner under the Employees Compensation Act, 1923 (herein after to be referred as “the Act”) (Assistant Labour Commissioner, Doda), who is the Commissioner under the Act by filing claim petition and an award has been passed by the said authority after recording factual findings and as against the said award appeal is maintainable under Section 30 of the Act before the High Court. Section 30 of the Act reads thus:— “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-section (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 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 The period of limitation for an appeal under this section shall be sixty days (3) The provisions of section 5 of the Limitation Act 1963 (36 of 1963) shall be applicable to appeals under this section.” 5. It is to be noticed at this juncture that if an award passed by the Commissioner under the Employees Compensation Act is challenged, there is a pre-requisite to deposit the entire amount at the time of filing of appeal and the receipt/certificate of deposit shall be filed alongwith memorandum of grounds of appeal. It is to be noticed at this juncture that if an award passed by the Commissioner under the Employees Compensation Act is challenged, there is a pre-requisite to deposit the entire amount at the time of filing of appeal and the receipt/certificate of deposit shall be filed alongwith memorandum of grounds of appeal. Further, there must be a substantial question of law for entertaining appeal under section 30 of the Act and there is a limitation prescribed under the said Section for filing appeal. OWP No. 711/2013 was filed by the appellant on 09.05.2013 i.e. after a period of over 17 months and OWP No. 689/2013 was filed by the appellant on 1305 2013 i.e. after a period of over 10 months, i.e. beyond the limitation provided by the Act. Further the award amount with intent had not been deposited. 6. One of us, NPV-CJ had an occasion to consider the similar issue as a judge of Madras High Court in the decision reported as 2006 (4) MLJ 1653 (District Forest Officer, Madurai Division, Madurai v. P. Ganesan (dies) and Ors.) and held that the writ petition filed against the award of the Commissioner granting compensation under the Employees Compensation Act, 1923 cannot be entertained and appeal alone has to be preferred by the employer or any person aggrieved by the award. The deposit of the awarded amount cannot be bypassed as it is a statutory requirement by permitting the appellant to file writ petition challenging the award. It is a well settled proposition of law that if the statute provides remedy of appeal, party to the proceedings can prefer appeal only and it cannot Insist that without filing appeal it will only file writ petition and the same shall be entertained. 7. In the decision reported in 2010(7) Supreme 1059 [Board of Wakf, West Bengal v. Anis Fatma Begum and Anr.] a question arose that if there is any dispute/question OF other matter relating to Wakf or Wakf property, Hon’ble the Supreme Court held the parties have to necessarily approach the Wakf Tribunal under the Wakf Act and they cannot approach the civil court or the High Court under Article 226 of the Constitution of India. In the decision reported in AIR 2011 SC 3423 [Bihar State Electricity Board and Anr. In the decision reported in AIR 2011 SC 3423 [Bihar State Electricity Board and Anr. V. Ramdeo Prasad Singh and Ors.], a question arose as to whether a workmen as defined in the Industrial Disputes Act can challenge the order of dismissal by filing a suit and pray for his re-instatement. The Hon’ble Supreme Court held that if a dispute is an Industrial Dispute relating to the enforcement of a right or obligation created under the Act, the only remedy available is to get the same adjudicated under the Act i.e. by raising Industrial Dispute in the said case the Hon’ble Supreme Court held that the suit filed by the workman questioning dismissal and seeking re-instatement was not maintainable. In the decision reported in 2011 (2) SCC 575 [Transport and Dock Workers Union and others v. Mumbai Port Trust and another] entertaining the writ petition in spite of availability of alternate remedy under the Industrial Disputes Act by the High Court was not appreciated by Hon’ble the Supreme Court and in para 14 it is held thus:— “14. In our opinion the writ petition filed by the appellants should have been dismissed by the High Court on the ground of existence of an alternative remedy under the Industrial Disputes Act. It is well settled that writ Jurisdiction is discretionary jurisdiction and the discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. In this case there was a clear alternative remedy available to the appellants by raising an Industrial dispute and hence we fail to understand why the High Court entertained the writ petition It seems to us that some High Courts by adopting an over liberal approach are unnecessarily adding to their load of arrears instead or observing judicial discipline in following settled legal principles......” In the decision reported in 2011 (2) SCC 782 [Kanaiyalal Lalchand Sachdev and Ors. v. State of Maharashtra and Ors.], the maintainability of writ petition, if an alternate remedy is available, which is efficacious-was considered and in para 23 Hon’ble Supreme Court held thus:— “23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. v. State of Maharashtra and Ors.], the maintainability of writ petition, if an alternate remedy is available, which is efficacious-was considered and in para 23 Hon’ble Supreme Court held thus:— “23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an remedy is available to any aggrieved person [See Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC 524 Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 and SB1 v. Allied Chemical Laboratories (2006) 9 SCC 252 ]. In the decision reported in 2014 (1) SCC 329 (GAIL (India) Ltd. v. Gujrat State Petroleum Corporation Ltd.], Hon’ble the Supreme Court held that if the remedy of arbitration is available, the High Court should not have entertained the writ petition under Article 226 of the Constitution of India and should have relegated the respondent in the said case to avail the remedy of arbitration and arbitral tribunal could have decided the complicated dispute between the parties by availing the services of the experts. In the decision reported in AIR 2015 SC 2465 [Union of India and Ors. v. Major General Shri Kant Sharma and Anr.] entertaining of writ petition by the High Court against the order passed by the Armed Forces Tribunal inspite of the specific provision for filing appeal before Hon’ble the Supreme Court under Section 30 of the Armed Forces Tribunal Act was considered and it was held that entertaining writ petition was improper and the remedy open to the person aggrieved is only to approach Hon’ble the Supreme Court. In para 34 the principles were summarized as under:— “34. The aforesaid decisions rendered by this Court can be summarised as follows:— The power of judicial-review vested in the High Court under Article 226 is one of the1Tclsic essential features of the Constitution, and any legislation including Armed Forces Act, 2007 cannot override or curtail Jurisdiction of the High Court under Article 226 of the Constitution of India (Refer L Chandra and S.N. Mukherjee). (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer Mafatlal Industries Ltd.). (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer Nivedita Sharma) (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is-available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance (Refer: Nivedita Sharma).” 8. In the light of the above settled proposition of law as declared by Hon’ble the Supreme Court, the order of the Writ Court dismissing the writ petitions granting liberty to the appellant to avail alternate remedy of filing appeal is Just and proper and requires no interference. 9. These L.P. appeals are dismissed. No costs.