Andhra HC (Pre-Telangana)
Mahendra Kumar vs Real Feb. Autonagar on 10 April, 1996
Equivalent citations: II(1998)ACC457, 1998ACJ232, [1997(75)FLR658], (1998)IIILLJ1018AP
Author: Avinash Somakant Bhate
Bench: Avinash Somakant Bhate
ORDER S. Parvatha Rao, J.
1. The Letters Patent Appeal is preferred questioning the order of the learned single Judge dated March 13, 1992 in C.M.P. Nos. 4553 and 6078 of 1991 making absolute the interim stay granted on April 2, 1991 in C.M.P. No. 4553 of 1991 in C.M.A. No. 464 of 1991 with certain modifications by directing the appellant in the C. M.A. to deposit 50% of the compensation before the competent authority, i.e. the Commissioner of Workmen's Compensation, within two weeks and making it clear that in the event of appellant failing to deposit the said amount, the interim stay would stand vacated and also that on such deposit being made, the workman, i.e. the second respondent in the C.M.A., would be at liberty to withdraw the same without furnishing security. From this, it is obvious that C.M.A. No. 464 of 1991 has been preferred by the employer without complying with the requirements of the third proviso to Sub-section (1) of Section 30 of the Workmen's Compensation Act, 1923 ('the Act' for short) which requires as follows :
"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 hint the amount payable under the order appealed against"
The said proviso is in emphatic negative language - "no appeal... ... shall lie unless ..." .There can be no doubt that the requirement that the memorandum of appeal should be accompanied by a certificate specified therein is a mandatory requirement and, in view of the emphatic negative language of the proviso, an appeal by an employer under the said Clause (a) by presenting a memorandum of appeal unaccompanied by such a certificate will be incompetent. In Ohene Moore v. Akesseh Tayee, AIR 1935 PC 5, the Judicial Committee of the Privy Council was considering the effect of the provision which required that "leave to appeal from... ... Tribunal shall not be granted unless and until the appellant shall either have paid the costs in such Tribunal or shall have deposited therein or in the Court to which the appeal is being taken a sum of money sufficient to satisfy such costs." The Privy Council found that the statutory condition upon which alone leave to appeal could be given was not fulfilled. The question arose whether that requirement could be treated as a mere technicality. Answering the said question in the negative, Lord Atkin, speaking for the Judicial Committee, observed as follows :
"After all, it is to be remembered that all appeals in this country and elsewhere exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them. ... ... It is quite true hat their Lordships, as every other Court, attempt to do substantial justice and to avoid technicalities; but their Lordships, like any other Court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction."
In Commissioner of Income-tax v. Filmistan Ltd., , the Supreme Court considered the effect of the proviso to Sub-section (1) of Section 30 of the Income-tax Act, 1922, which was as follows :
"Provided that no appeal shall lie against an order under Sub-section (1) of Section 46 unless the tax has been paid."
In that case a memorandum of appeal was filed and subsequently tax was paid, but within the time allowed for preferring the appeal. The contention raised before the Supreme Court was that the words 'no appeal shall lie' meant that there was no right of appeal till the tax was paid and therefore if the tax had not been paid, the memorandum of appeal could not be filed and if filed it was merely a waste paper. Rejecting that contention the Supreme Court held as follows at p. 1135 of AIR :
"In our opinion the meaning of the words 'no appeal shall lie' in the proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal will not be held to be properly filed until the tax has been paid".
In Vijay Prakash D. Mehta v. Collector of Customs, , the Supreme Court has held that the right to appeal is a statutory right and it can be circumscribed by the conditions in the grant and that "if the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant". In the present case, admittedly, memorandum of appeal was not accompanied by any certificate by the Commissioner; nor was any requisite certificate by the Commissioner filed by the employer within the time allowed to prefer the appeal. Therefore, the C.M.A. preferred by the employer under Section 30 of the Act even if the order appealed against is treated as one under Clause (a), is incompetent.
2. In view of the above position, when the L.P.A. came up for admission before us on April 8, 1996, we questioned the maintainability of the C.M.A. itself. The learned counsel appearing for the workman, i.e. the appellant in the Letters Patent Appeal, also raised the contention that the C.M.A. was incompetent because the order appealed against did not fall under any of the orders specified in Sub-section (1) of Section 30 as it was an order dismissing a petition to "set aside the ex parte order" dated October 30, 1990 awarding compensation of Rs. 41,596/- to the appellant in the L.P.A. on account of the injuries said to have been sustained by him in an accident in the course of employment. Under those circumstances, the learned counsel on both sides agreed that the C.M.A. itself should be posted for final hearing along with the L.P.A. and consequently we directed the C.M.A. to be posted along with the L.P.A., and that is how the C.M.A. has come up before us.
3. We find that the objection to the maintainability of the C.M.A. is well taken. The C. M.A. is preferred against the order dated January 31, 1991 in W.C. Case No. 102 of 1989 which laconically states:
"The respondent No. 2 is informed that his request for setting aside of ex parte order is rejected and his petition is dismissed."
This order is not an appealable order because it does not fall under any of the categories of orders specified in the clauses of Sub-section (1) of Section 30 of the Act. G. Venkatarama Sastry, J., of this Court held in E. Ramaswamy v. Smt. Jahurunnisa Begum, Judgment dated November 2, 1972 in C.M.A. No. 497 of 1971, that :
"Though the appeal lies against an original order fixing the compensation, an appeal is not contemplated against an order in an application to set aside an ex parte order awarding compensation, filed under Rule 13 of Order 9, C.P.C".
That was a matter which arose under the Act. That appeal was also sought to be preferred under Section 30 of the Act. There is also the decision of a learned single Judge of the Madras High Court in M.K. Govind Singh v. The Additional Commissioner for Workmen's Compensation, (1972-I-LLJ-430). That was in a writ petition preferred by the employer questioning "a non-speaking order" of the Additional Commissioner for Workmen's Compensation dismissing the employer's petition under Order 9, Rule 13 for setting aside an ex pane order of that Commissioner awarding compensation to the employee. One of the contentions raised in the writ petition was that the Additional Commissioner for Workmen's Compensation was a Court which was subordinate to the High Court and that therefore no writ under Article 226 would lie and that the only remedy available to the employer could be by way of a revision petition under Section 115 of the Code of Civil Procedure. In rejecting that contention Justice Ramaprasada Rao of the Madras High Court held that Section 30 of the Act provided appeals to the High Court from certain specified orders of the Commissioner functioning under the Act and that the various sub-clauses in Section 30 did not include an order under which the Commissioner refused to set side an ex parte order. He further observed as follows :
"In the instant case, Order 9 of the Code of Civil Procedure is made applicable to the proceedings before the Commissioner. Section 30 does not provide for an appeal against an order passed by the Commissioner while dealing with an application under Order 9, Civil Procedure Code. It, therefore, follows that such an order is not an appealable order."
We are in full agreement with that view. In the result, the present C.M.A. is dismissed as incompetent. No, costs.
4. L.P.A. No. 45 of 1996 has now become infructuous and therefore is dismissed. No costs.
5. Before we pan, we have to place on record our appreciation of the assistance rendered to us by Mr. P. Sri Raghu Ram, the learned counsel for the appellant C.M.A. No. 464 of 1991.