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2019 DIGILAW 517 (HP)

Ravi Sharma v. Bhupinder Dutt Sharma

2019-04-30

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this petition filed under Article 227 of the Constitution of India, the petitioner assails order passed by Commissioner Employee''s Compensation, Court No.2, Shimla in Claim Application No. 3/2 of 2015 decided on 26.2.2018, vide which application filed by claimants therein under Section 22 of the Employee''s Compensation Act, 1923 (in short ''the Act'') as amended upto date read with Rule 20 of the Workmen''s Compensation Rules, 1924 stood partially allowed in the following terms:- "As a sequel to the aforesaid discussion, the application is partly allowed. The applicants are held entitled for compensation to the tune of Rs. 9,00,880/-alongwith interest @ 12% per annum from 23.11.2014 till date from the respondent No.1. The respondent No.1 is also liable to pay funeral charges to the tune of Rs. 5,000/- to the applicants. Both applicants shall get half share each from compensation amount. The award is passed accordingly. File after its due completion be consigned to the record room." 2. Said order passed under Section 22 of the Act though is appealable under Section 30 thereof, yet the petitioner has chosen to assail the said order under Article 227 of the Constitution of India. 3. On being asked as to how the petition is maintainable, as there was a statutory remedy available against the order impugned before this Court itself, the answer of learned counsel for the petitioner is that as the judgment passed by the Authority below is not inconsonance with the law laid down by Hon''ble Supreme Court in Firdaus vs. Oriental Insurance co. Ltd. and others, 2018 (Vol.1) Him L.R. (SC) 29, therefore, as the same is a perverse order, it can directly be challenged under Article 227 of the Constitution of India before this Court in view of the law laid down by Hon''ble Supreme Court in Ajay Singh and another vs. State of Chhattisgarh and another, (2017) 3 SCC 330 . Ltd. and others, 2018 (Vol.1) Him L.R. (SC) 29, therefore, as the same is a perverse order, it can directly be challenged under Article 227 of the Constitution of India before this Court in view of the law laid down by Hon''ble Supreme Court in Ajay Singh and another vs. State of Chhattisgarh and another, (2017) 3 SCC 330 . Learned counsel has also argued that other reason as to why the petitioner has not filed an appeal as envisaged under Section 30 of the Act against the order impugned is that in case the petitioner invokes the remedy as is provided under Section 30 of the Act then he has to mandatorily along with the memorandum of appeal submit a certificate by the Commissioner to the effect that appellant has deposited before him the amount payable under the order appealed against. 4. Having heard learned counsel for the petitioner, this Court is of the view that the present petition is not maintainable. 5. The impugned order has been passed by learned Commissioner under Employee''s Compensation Act, 1923, which is a Special Act and a beneficial piece of legislation. Said Act is both substantive as well as a procedural statute. Not only order of the Commissioner passed under Section 22 of the Act is appealable, appeal against the same lies to the High Court itself. This statutory provision cannot be permitted to be circumvented by permitting the petitioner to assail the order passed under Section 22 of the Act by filing a petition under Article 227 of the Constitution of India. The submission of learned counsel for the petitioner that the petition is maintainable under Article 227 of the Constitution of India, as the order passed by authorities is not inconsonance with law passed by Hon''ble Supreme Court is without merit as it does not confers upon the petitioner any right to circumvent the statutory remedy. The argument that the order impugned is not inconsonance with the law laid down by Hon''ble Supreme Court can be a good ground for setting aside the same by appellate Court, but the same cannot be a ground to circumvent the provision of appeal. The argument that the order impugned is not inconsonance with the law laid down by Hon''ble Supreme Court can be a good ground for setting aside the same by appellate Court, but the same cannot be a ground to circumvent the provision of appeal. The judgment relied upon by learned counsel for the petitioner i.e. Ajay Singh and another vs. State of Chhattisgarh and another (Supra) does not per se lays down the law that where there is a statutory remedy available and that too by way of appeal to the High Court itself, the party can circumvent the same and assail the order under Article 227 of the Constitution of India. 6. Incidentally in the present case the appeal as already mentioned above lies to the High Court itself. Therefore, it cannot be the case of the petitioner that the statutory remedy available is not a speedy and/or an efficacious remedy. The intent of the petitioner is very clear. He does not wants to deposit the awarded amount which the appellant has to mandatorily deposit before filing an appeal under Section 30 of the Act and it is for this reason that the petitioner has filed present petition under Article 227 of the Constitution of India. 7. The power of supervision conferred upon the High Court is to be exercised sparingly. The same is to be exercised by the High Court in a case where the Court below or the Tribunal below has, inter alia, committed judicial impropriety or has committed a jurisdictional error. This is not the allegation of the petitioner. He is plainly aggrieved by the findings which stand returned by the Commissioner on the basis of pleadings on record. For that, the remedy is not by filing a petition under Article 227 of the Constitution of India, but the same is by invoking the provisions of Section 30 of the Act. Thus as there is no merit in the present petition, the same is dismissed. No order as to cost.