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2022 DIGILAW 108 (JK)

Mohammad Afzal Bhat v. State of J&K

2022-03-15

SANJAY DHAR

body2022
JUDGMENT : Sanjay Dhar, J.-Petitioner has filed the instant writ petition under Article 226 of the Constitution challenging the award dated 30.06.2014 passed by Commissioner under Employees Compensation Act, 1923 (Assistant Labour Commissioner), Ramban (hereinafter referred to as “ALC, Ramban”). 2. It appears that respondent No.3, claiming himself to be a Workman employed by petitioner as a Mate, made an application before ALC, Ramban, alleging therein that on 26.04.2001, he received personal injuries in an accident arising out of and in the course of his employment of the petitioner while loading vehicle No.JK01-9002. Accordingly, a compensation of Rs.3.00/- lacs was claimed by the respondent No.3. It appears that despite service, petitioner did not participate in the proceedings before the ALC, Ramban and an exparte award dated 30.06.2014 came to be passed, whereby respondent No.3 has been held entitled to a compensation of Rs.1,95,219/- along with interest @12% per annum from the date of accident to 10.06.2014 and a penalty amount of Rs.30,000/-, making it total amount of Rs.5,29,760/-. 3. The petitioner has challenged the aforesaid award on various grounds but the main ground which has been raised by petitioner is that ALC, Ramban, did not have jurisdiction to entertain and decide the application of respondent No.3 because the alleged accident had taken place at Athwajan, Srinagar, and without there being any compliance to the provisions contained in Section 21 of the Employees Compensation Act, 1923 (for short the Act of 1923) and the Rules made there-under i.e. Employee’s Compensation (Venue of Proceedings) Rules, 1996 (for brevity “the Rules of 1996”), ALC, Ramban, within whose jurisdiction respondent No.3 is residing, would not get the jurisdiction. It is on this ground that the petitioner has contended that there being a jurisdictional error on the part of ALC, Ramban, as such, the instant writ petition is maintainable. 4. Learned counsels for the respondents have raised a preliminary objection with regard to maintainability of this writ petition contending that the impugned award is appealable in terms of Section 30 of the Act of 1923 and, as such, writ petition against the same is not maintainable. It is contended that the petitioner has deliberately filed the instant writ petition in order to avoid the deposition of award amount before the Commissioner which is a pre-condition for maintainability of an appeal. 5. It is contended that the petitioner has deliberately filed the instant writ petition in order to avoid the deposition of award amount before the Commissioner which is a pre-condition for maintainability of an appeal. 5. I have heard learned counsel for the parties and perused the record including the record of ALC, Ramban. 6. As already noted, the contention of learned counsel for the petitioner is that ALC, Ramban did not have jurisdiction to entertain the application of respondent No.3 as the accident had not taken place with his jurisdiction and without compliance of provisions contained in Section 21 of the Act of 1923, the said Authority would not get jurisdiction. 7. In order to test the merits of the contention raised by the petitioner, it would be apt to refer to Section 21 of the Act of 1923. It reads as under: “21. Venue of proceeding 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 employee 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 15 prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned: Provided further that, where the employee, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or a employee 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 section 8, 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 Commissioner 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 whom 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.” The provisions of Rule 3 of the Rules of 1996 are also on the similar lines. 8. A perusal of the aforesaid provision reveals that an employee can file an application claiming compensation before the Commissioner for the area in which the said employee ordinarily resides, or at a place where the accident has taken place or at a place where the employer has his registered office. 8. A perusal of the aforesaid provision reveals that an employee can file an application claiming compensation before the Commissioner for the area in which the said employee ordinarily resides, or at a place where the accident has taken place or at a place where the employer has his registered office. Proviso to the aforesaid provision provides an exception to the effect that if an accident has taken place within the area where the proceedings have been initiated, same can only be processed before or by the Commissioner other than the Commissioner having jurisdiction over the area in which the accident took place but not without his giving a notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned. 9. In the instant case, admittedly, the accident had taken place beyond the jurisdiction of ALC, Ramban, within whose jurisdiction petitioner was ordinarily residing. Therefore, as per Proviso to Section 21 of the Act of 1923, ALC, Ramban, was obliged to give a notice in the prescribed form to the Commissioner Workmen’s Compensation, Srinagar, and the Government. 10. A perusal of the record of the ALC, Ramban, reveals that vide order dated 11.09.2012, notice in terms of Proviso to Section 21 of the Act of 1923 has been directed to be issued and in subsequent interim order dated 10.12.2012, it is recorded that the requisite notice has been issued on 02.11.2012. There is a presumption of correctness to the proceedings of a Judicial or Quasi-judicial Authority. Thus, it can safely be stated that the requisite notice has been issued by ALC, Ramban. The record suggests that the requirements of Proviso to Section 21 of the Act of 1923 stand satisfied in the instant case, though not at initial stage of entertaining the application but during the currency of the proceedings before recording evidence of the respondent No.3 and subsequent passing of the impugned award. 11. Even otherwise, the Supreme Court in the case of Morgina Begum vs. Managing Director, Hanuman Plantation Ltd. (2007) 11 SCC 616 , has, while interpreting the provisions of Section 21 of the Act of 1923, held that a claimant can apply before the Commissioner having jurisdiction over the area where the claimant ordinarily resides and it is not necessary to prefer a claim petition at a place where the accident has taken place. The relevant observations of the Supreme Court are reproduced as under: “…..Hence, we are of the opinion that the view taken by both these High Courts is correct. A claimant can apply before the Commissioner having jurisdiction over the area where the claimant resides, and it is not always necessary to prefer a claim petition where the accident has taken place. This is for the facility of the workmen and advances the cause of welfare of the workmen. Therefore, the view taken by the Gauhati High Court in the impugned order that the claim petition could only be filed at the place where the accident had taken place, cannot be sustained. Section 21(1)(b) read with its proviso is a beneficial legislation for the welfare of the workmen and by the above, interpretation, it will advance the cause of the workmen. Therefore, we are of the opinion that the view taken by the Gauhati High Court in the impugned order cannot be sustained and accordingly we set aside the impugned order.” 12. From the foregoing enunciation of law on the subject and having regard to the fact that there has been substantial compliance to the provisions contained in Proviso to Section 21 of the Act of 1923 in this case, it can safely be said that ALC, Ramban, was vested with the jurisdiction to entertain and decide the claim petition of respondent No.3. 13. Once this Court has come to a conclusion that ALC, Ramban, did possess jurisdiction to entertain and decide the claim petition of respondent No.3, the questions arises whether in these circumstances the writ petition is maintainable having regard to the fact that Section 30 of the Act of 1923 provides for a right of statutory appeal against an award passed by a Commissioner under Workmen’s Compensation Act. 14. The Supreme Court in a recent case of M/S Radha Krishen Industries vs. State of Himachal Pradesh, after noticing the law on the subject culled out principles for maintainability of a writ petition in the presence of an alternative remedy. 14. The Supreme Court in a recent case of M/S Radha Krishen Industries vs. State of Himachal Pradesh, after noticing the law on the subject culled out principles for maintainability of a writ petition in the presence of an alternative remedy. Para 27 of the judgment is relevant to the context and the same is reproduced as under: “27 The principles of law which emerge are that: (i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 15. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 15. From the above quoted ratio laid down by the Supreme Court, it is clear that when a right is created by a Statute, which itself prescribes a remedy or procedure for enforcing the right or liability, resort must be had to that particular Statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. 16. In the instant case, the petitioner has a statutory remedy of appeal under Section 30 of the Act of 1923 against the impugned award and without exhausting the said remedy, just to avoid the deposition of awarded amount, the petitioner cannot maintain the writ petition. As held hereinbefore, the impugned award is not without jurisdiction and, as such, the case of petitioner does not come within the exceptions to the rule of alternative remedy. 17. For the foregoing reasons, the petition is held to be not maintainable and is dismissed as such, leaving it open to the petitioner to avail the remedy of appeal against the impugned award, if so desired.