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2016 DIGILAW 946 (KER)

Reliance General Insurance Co. Ltd. v. Nabeesa

2016-11-04

DAMA SESHADRI NAIDU, P.N.RAVINDRAN

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ORDER : P.N. Ravindran, J. This unnumbered appeal arises from the order passed by the Industrial Tribunal and Employees Compensation Commissioner, Kozhikode, on 29-7-2016, in E.C.C. No. 95 of 2014, which was originally numbered as W.C. No. 8 of 2011 on the file of the Employees Compensation Commissioner, Kannur. Along with the memorandum of appeal, which was presented in this court on 31-10-2016, the appellant had enclosed the original of the receipt dated 3-9-2016 issued by the Industrial Tribunal, Kozhikode, acknowledging deposit of the sum of X 7,29,657. The Registry returned the memorandum of appeal on 31-10-2016 after noticing the following two defects: "(1) Age of respondents is not shown. (2) Certificate of the Commissioner regarding deposit of the amount not produced." 2. Learned counsel appearing for the appellant re-presented the memorandum of appeal on 3-11-2016 after making the following endorsement: "Original receipt showing deposit of the amount is produced. Kindly post before the Bench." The unnumbered appeal has accordingly come up before us today. 3. The objection raised by the Registry is that the third proviso to Section 30(1) of the Employees Compensation Act, 1923 (hereinafter referred to as "the Act" for short) stipulates 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. In the case on hand, the appellant has produced along with the memorandum of appeal, the original of a receipt dated 3-9-2016 evidencing deposit of the sum of Rs. 7,29,657 with the Industrial Tribunal and Employees Compensation Commissioner, Kozhikode. The stand taken by the Registry is that the said receipt does not satisfy the requirement of the third proviso to Section 30(1) of the Act. We arc afraid, the objection raised by the Registry cannot be sustained. 4. Registry has declined to number the appeal for the reason aforesaid, in view of the order passed by a Division Bench of this Court on Thattuparambath Govindan Asari and others v. Tharammal Sureshan and another 2012 (1) K.H.C. 685 and the order passed by yet another Division Bench of this Court on 6-11-2012 on C.M. Appln.No.2704 of 2012 in I.A.No.2684 of 2012 in M.F.A. No. 151 of 2012. 5. 5. In Thattuparambath Govindan Asaris case (supra), along with the appeal memorandum which was presented in this Court on 14-12-2010, the receipt evidencing deposit of the compensation awarded by the Workmen’s Compensation Commissioner was not enclosed. The affidavit filed in support of the application for stay was also not signed. Registry thereupon returned the memorandum of appeal as defective to be re-presented within 15 days. It was re-presented only on 1-12-2011 with a delay of 336 days. When the appeal memorandum was re-presented, the original of the receipt evidencing deposit of the compensation awarded by the Workmen’s Compensation Commissioner was produced. The said receipt would disclose that the amount awarded as compensation was deposited only on 22-11-2011. The application to condone the delay in re-presenting the appeal was heard and allowed by a Division Bench of this Court by order passed on 8-12-2011, subject to payment of Rs. 350/- as costs. The said direction was complied with. 6. Thereafter, when the appeal M.F.A. (W.C.C.) No. 207 of 2011 came up for consideration before a Division Bench of this Court on 19-1-2012, the Division Bench held that as the receipt evidencing deposit was produced in this Court only on 1-12-2011 when the memorandum of appeal was re-presented along with C.M. Appln. No. 2994 of 2011 with a prayer to condone the delay of 336 days in such re-presentation, it cannot be said that the appeal was properly filed when it was initially presented on 14-12-2010. This Court accordingly held that it should be deemed that there was delay in filing the appeal and that the fact that the delay in re-presentation was condoned does not make the appeal maintainable, as it was not otherwise maintainable. In that context, the Division Bench of this Court observed that the third proviso to Section 30(1) of the Act stipulates that no appeal 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 relevant portion of the order passed by the Division Bench reads as follows: "9. The relevant portion of the order passed by the Division Bench reads as follows: "9. In the light of the above, we answer the questions posed in paragraph No. 3 above as follows: (a) The presentation of a memorandum of appeal under Section 30(1) of the Act, without it being accompanied by the Commissioners certificate as to deposit, does not amount to institution of the appeal in terms of the Act. (b) If a memorandum of appeal is filed without it being accompanied by the Commissioners certificate as to deposit, that appeal would be barred by limitation, if the certificate as to deposit is not produced before the period of limitation prescribed for the appeal. (c) The condonation of delay in re-presentation of the memorandum of the appeal along with such certificate does not amount to condonation of delay in instituting the appeal. The appellants have to show sufficient cause for condonation of the delay in institution of the appeal. Such an application could be filed invoking Section 5 of the Limitation Act, 1963 read with Section 30(3) of the Act. 10. Applying the aforesaid, as it now stands, this appeal is barred by limitation and the same is hence liable to be rejected on that ground." 7. The Division Bench however granted to the appellant, an opportunity to file an application to condone the delay in filing the appeal. The records in M.F.A. No. 207 of 2011 disclose that thereafter, C.M. Appln. No. 275 of 2012 to condone the delay of 343 days in filing the appeal was filed. In Thattuparambath Govindan Asaris case (supra) the question whether the certificate contemplated in the third proviso to Section 30(1) of the Act should be in any particular form, did not arise for consideration. 8. In M.F.A. No. 151 of 2012, Registry had noted that the document evidencing deposit is not produced. However, on production of a receipt evidencing deposit on 30-10-2012, the Registry noted "defects cured". The Division Bench, on noticing that the receipt which was available in the records was actually an endorsement purported to have been made by the Labour Commissioner on a letter addressed by the appellant to the Commissioner to the effect that a cheque for Rs. However, on production of a receipt evidencing deposit on 30-10-2012, the Registry noted "defects cured". The Division Bench, on noticing that the receipt which was available in the records was actually an endorsement purported to have been made by the Labour Commissioner on a letter addressed by the appellant to the Commissioner to the effect that a cheque for Rs. 8,36,056/- has been received, held that an endorsement to the effect that the cheque has been received will not be sufficient compliance with the third proviso to Section 30( 1) of the Act. It was held that for an appeal to be entertained under Section 30 of the Act, the memorandum of appeal shall be accompanied by a certificate issued by the Commissioner and that such certificate shall be to the effect that the appellant has deposited the amount payable under the order appealed against. The Division Bench also held that while issuing the certificate, the Commissioner for Workmen’s Compensation has to take into account the dictum laid down by this Court in Thattuparambath Govindan Asaris case (supra). There was a further direction to the Registry to the effect that if a certificate as contemplated in the third proviso to Section 30(1) of the Act is not produced, it shall be noted as a defect. 9. When this unnumbered appeal was taken up for consideration today, Sri George Cherian, learned Senior Advocate appearing for the appellant brought to our notice the decision of the Apex Court in M/s EMM Tex Synthetics v. Om Prakash and another A.I.R. 2008 S.C.W. 2545 and submitted that in the light of the authoritative pronouncement of the Apex Court, the defect noted by the Registry cannot be sustained. Learned counsel submitted that the Apex Court has in M/s EMM Tex Synthetics v. Om Prakash and another (supra) held that substantial compliance with the stipulation regarding deposit occurring in the third proviso to Section 30(1) of the Act alone is necessary and that in the absence of prescription of the form in which the certificate has to be issued, it is enough that a receipt in original, evidencing deposit of the amount awarded by the Workmen’s Compensation Commissioner, is produced. 10. 10. The facts in M/s EMM Tex Synthetics v. Om Prakash and another (supra) are as follows: A learned Single Judge of the High Court of Himachal Pradesh at Simla dismissed an appeal filed under the Act on the ground that the memorandum of appeal was not accompanied by a certificate issued by the Commissioner to show that the appellant had deposited the amount payable under the impugned order. The appellant in that case had however produced a copy of the demand draft that was deposited and the covering letter which accompanied it, on which, receipt of the demand draft for the amount payable under the impugned order was acknowledged. The High Court refused to accept it as a certificate under the Act. Reversing the decision of the learned Single Judge of the High Court of Himachal Pradesh, the Apex Court held that in the absence of any prescription in the Act to the effect that the certificate should be in a particular form, proof of deposit of compensation would be substantial compliance with Section 30 of the Act and therefore, the appeal could not have been thrown out on that technical ground. The relevant portions of the judgment of the Apex Court in M/s EMM Tex Synthetics v. Om Prakash and another (supra) are extracted below: "4. We have heard the learned counsel for the appellant and examined the relevant provisions made under Section 30 of the Act and other materials on record. After a careful examination, we are of the view that in the absence of any specified form of Certificate indicated in the Act or the Rules, it cannot be said that the Certificate produced by the appellant was not in compliance with Section 30 of the Act. It is an admitted fact that the appellant had deposited the awarded amount by way of a Demand Draft duly received by the office of the Commissioner. The Demand Draft was deposited along with a covering letter and the receipt was given on its copy. The High Court had refused to accept it as a Certificate under the Act and therefore, dismissed the appeal. 5. In our view, in the absence of any specified form of Certificate, a proof of deposit of compensation would be a substantial compliance of Section 30 of the Act. Therefore, the appellant could not be thrown out on such a technical ground. 6. 5. In our view, in the absence of any specified form of Certificate, a proof of deposit of compensation would be a substantial compliance of Section 30 of the Act. Therefore, the appellant could not be thrown out on such a technical ground. 6. That being the position, we set aside the Judgment of the High Court and request the High Court to decide the appeal filed under Section 30 of the Act in accordance with law and after giving hearing to the parties, dispose of the same after passing a reasoned order within six months from the date of supply of a copy of this order." 11. The judgment in M/s EMM Tex Synthetics v. Om Prakash and another (supra) was delivered on 25-3-2008. It was without noticing the binding decision of the Apex Court that this Court held in M.F.A. No. 151 of 2012 that a certificate issued by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against, should accompany the memorandum of appeal filed under Section 30 of the Act. As stated earlier, the said question did not directly arise for consideration in Thattuparambath Govindan Asaris case (supra). In the light of the authoritative pronouncement of the Apex Court in M/s EMM Tex Synthetics v. Om Prakash and another (supra), wherein it has been held that substantial compliance with Section 30 of the Act alone is required, we are of the opinion that the Registry cannot insist that in appeals filed under Section 30 of the Act, a certificate issued by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against, should be produced. Registry can, in our opinion, only insist that proof of deposit of the compensation should accompany the memorandum of appeal. It may be by a receipt in original as in the instant case or an acknowledgement of the deposit in some other form, but in such cases, the document containing the original of the acknowledgement should be produced. We accordingly overrule the objection raised by the Registry and direct the Registry to number the appeal.