Gauhati High Court
Officer Commanding vs Sitram Banda And Anr. on 1 December, 2006
Equivalent citations: (2007)2GLR158
Author: I.A. Ansari
Bench: I.A. Ansari, U.B. Saha
JUDGMENT I.A. Ansari, J.
1. By order, dated 17.8.2001, passed in WP(C) No. 1198/2001, a learned Single Judge of this court dismissed the writ petition filed, under Articles 226 and 227 of the Constitution of India, by the appellant herein questioning the legality and validity of the order, dated 27.7.2001, passed by the Commissioner, Workmen's Compensation Act (in short, "the Act") in Claim Case No. 38 of 2000, awarding a sum of Rs. 1,17,644.00, with interest @ 12% per annum, the ground of dismissal of the writ petition being that the award, in question, is appealable under Section 30 of the Act.
2. We have heard Mr. N. Ibotombi, learned Central Government Counsel, appearing on behalf of the appellant, and Mr. H. Dijen, learned Counsel for the workman-respondent No. 1. I have also heard Mr. S. Nepolean, learned Counsel, appearing on behalf of the respondent No. 2.
3. Before we turn to the question as to whether the writ petition was maintainable or not, it is necessary to take note of the material facts, which are not in dispute. These facts, in brief, are thus : When the respondent No. 1 herein was working as a Mazdoor under the appellant herein, he sustained, on 24.5.1998, injury to his right eye and was admitted into RIMS, Imphal. During the course of treatment, an artificial eyeball was implanted in place of the injured eye of the workman and he was discharged from the hospital. At the time of his discharge from the hospital, a Medical Certificate was issued by the Department of Ophthalmology, RIMS, to the effect that the workman's vision of the right eye is 'nil' and that his disability was to the extent of 40%. The appellant herein, as the employer, assessed, on 15.2.2000, that the workman was entitled to receive, in all, a sum of Rs. 78,430 as compensation and deposited the said amount with the Commissioner, Workmen's Compensation, on 21.6.2000. Having received this amount on 12.7.2000, the workman made an application under Section 19 of the Act to the Commissioner, Workmen's Compensation, seeking compensation for the personal injuries sustained by him resulting into his disablement. By the impugned award, dated 27.7.2001, the Commissioner granted compensation to the workman as indicated hereinabove.
4. On a careful examination of the materials on record including the impugned award, we find that the workman sought for compensation for the disablement, which he had suffered as a result of the injuries sustained by him in the accident, which, according to the workman arose, on 25.4.1998, out of, and in course of, his employment. Such an application, undoubtedly, falls within the ambit of Section 19 of the Act. A Commissioner under the Act, is empowered to deal with such an application. Situated, thus, there can be no escape from the conclusion that in the case at hand, the Commissioner had the jurisdiction to pass appropriate order determining the amount of compensation payable to the workman. Hence, if the Commissioner has made any error or if the award suffers from any incorrectness or illegality, it will still be an award passed by an authority, which had the jurisdiction to deal with, and decide, the application made under Section 19 of the Act. When an authority or a court has jurisdiction, but decides the matter incorrectly or wrongly, the remedy does not lie in challenging such a decision by way of a writ petition under Articles 226 and/or 227 of the Constitution if an alternative remedy in the form of a statutory appeal is available to the aggrieved person. However, when an authority has no jurisdiction and still entertains an application or passes an order on such an application, such an order can be challenged under Articles 226 and/ or 227 of the Constitution as an order passed without jurisdiction even if a statutory right of appeal, in such a case, is available to the aggrieved party.
5. In the present case, award, having given by the Commissioner under Section 19 is, undoubtedly, appealable under Section 30 of the Act. When the statutory right of appeal was available to the appellant, as the employer, he could not have maintained an application under Articles 226 and/or 227 of the Constitution of India and the learned Single Judge committed no error in dismissing the writ petition as not maintainable.
6. Though a reference has been made by Mr. Ibotombi, learned central Government counsel for the appellant, to the case of Manager, Borsapori Tea Estate v. Addl. Dy. Commissioner, Golaghat and Anr. reported in [1995] 1 GLT 120, for the purpose of persuading us to hold that the writ petition was maintainable, what needs to be pointed out is that the decision, in Manager, Borsapori Tea Estate (supra), derives its authority from the decision in Ram and Shyam Company v. State of Haryana and Ors. . In Ram and Shyam Company (supra), the authority concerned was found to have acted wholly without jurisdiction and it was in the context of the peculiar facts and circumstances of the case that the Apex Court observed,
6. Shock and surprise was visible on the face of each one in the Court. Shock was induced by the fact that public property was squandered away for a song by persons in power who hold the position of trust. Surprise was how judicial intervention can serve larger public interest. One would require multilayered blindfold to reject the appeal of the appellant on any tenuous ground so that the respondent may enjoy and aggrandize his unjust enrichment. On this point we say no more.
7. Having observed what has been indicated above, the Apex Court held:
Ordinarily It is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly started that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the court. Where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.
8. To the facts of the case at hand, the decision in Ram and Shyam Company (supra), has no application inasmuch as the award given by the Commissioner, is an award, which the Commissioner had the jurisdiction to pass. Whether, while rendering the award, the Commissioner has committed any illegality or not can be challenged and examined in appeal, which the appellant herein can prefer under Section 30 of the Act.
9. In the case of Manager, Borsapori Tea Estate (supra), the workman had challenged the legality of the order of his employer retiring him from employment and also for not granting him medical leave. As both these grievances were not amenable to the jurisdiction of the Commissioner, Workmen's Compensation, a Division Bench of this court held that the Commissioner had acted without jurisdiction and an order passed by the Commissioner, under the Workmen's Compensation Act, on such an application is amenable to the writ jurisdiction of the High Court. The present one is a case, wherein the Commissioner, Workmen's Compensation Act, had the jurisdiction to pass order determining compensation. To the case at hand, therefore, the decisions relied upon, on behalf of the appellant, have no application.
10. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed.
11. Before parting with this appeal, we, however, make it clear that the dismissal of this writ appeal shall not constitute a bar for the appellant to exercise his right of making appeal in terms of Section 30 of the Act.
12. No order as to costs.