Chief Engineer Power Dev. Deptt. And Ors vs Mst. Fazi And Ors on 2 February, 2023

[Cites 8, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Chief Engineer Power Dev. Deptt. And Ors vs Mst. Fazi And Ors on 2 February, 2023

1. The instant petition is filed under Article 227 of the Constitution assailing an award amounting to Rs. 10, 17, 693/- (ten lacs seventeen thousand six hundred ninety three) with an interest @ 12% dated 21-11- 2020 passed in case tiled as "Mst. Fazi and Ors. Vs. Chief Engineer Power Dev. Deptt. and Ors." by respondent no. 5 on a claim petition filed by respondents 1 to 4 herein owing to the death of the son of the respondent no. 1 herein namely Fayaz Ahmad Dar in and during the course of his employment of the petitioners herein.

2. The impugned award is being assailed inter alia on the grounds that the respondent no. 5 lacked jurisdiction either to entertain the claim petition filed by the respondents 1 to 4 under and in terms of Employees Compensation Act, 1923 (for short Act of 1923) or else to pass an award thereof.

3. It is further being urged in the grounds that the plea raised by the petitioners before the respondent no. 5 that the deceased was not a workmen under and in terms of the provisions of the Act of 1923 was not considered by the respondent no. 5 and, as such, the impugned award passed by respondent no. 5 is illegal, violative of rules and regulations as also settled principles of law being gross violation of the provisions of the Act.

It is also being urged that besides the plea that the deceased was not a workmen, the petitioners herein had also contended before respondent no. 5 that the deceased died due to his own negligence and, as such, the petitioners were not liable to pay any compensation thereof to the legal heirs of the deceased and also that the matter of death of the deceased had been compromised by the petitioners with the respondent no. 1 and as such there was no occasion or question for respondent no. 1 to have filed claim petition under the provisions of the Act of 1923. The said pleas are also stated to have been overlooked by the respondent no. 5 while passing the impugned award.

4. Objections to the petition have not been filed. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the petitioner while making his submissions reiterated the contentions raised and grounds urged in the petition and would thus seek setting aside of the impugned award.

6. Per contra counsel for the respondents while opposing the submissions made by the counsel for the petitioner would raise preliminary maiden objections qua the maintainability of the petition that the same is not maintainable in view of presence of the statutory remedy of appeal enshrined in Section 30 of the Act of 1923.

7. Before proceeding to address to the issues raised in the writ petition it would be appropriate to refer to Section 30 of the Act of 1923 hereunder which reads as follows:

"30 Appeals. (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--

(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;

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[(aa) an order awarding interest or penalty under section 4A;]

(b) an order refusing to allow redemption of a half-monthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased 273 [employee], or disallowing any claim of a person alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than [ten thousand rupees] or such higher amount as the Central Government may, by notification in the Official Gazette, specify]:

Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:

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[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 him the amount payable under the order appealed against.] (2) The period of limitation for an appeal under this section shall be sixty days.

(3) The provisions of section 5 of 276 [the Limitation Act, 1963 (36 of 1963)], shall be applicable to appeals under this section."

Thus the scheme of Section 30 supra of the Act itself is very clear contemplating that an appeal against an order awarding compensation and against order awarding interest on penalty to be entertained only if substantial question of law is involved and in case of an appeal filed by the employer, the appeal is required to be accompanied by a certificate of Commissioner that the employer has deposited with him amount payable under order appealed against.

8. Keeping in mind the aforesaid provision of law and reverting back to the case in hand admittedly the claimants/respondents 1 to 4 herein filed the claim petition before respondent no. 5 under and in terms of the Act of 1923 and in response thereto the petitioners herein being respondents therein the claim petition filed reply to the claim petition urging the same pleas as are being urged in the instant petition. Record would reveal that respondent no. 5 on the basis of the pleadings of the parties framed following issues on 21st December, 2019;

(a) Whether the deceased was a workmen within the meaning of the Act or not;

(b) If yes who is liable to pay compensation

9. Perusal of the record of the proceedings before the respondent no. 5 would reveal that after framing of the aforesaid issues, the respondent no. 5 directed the respondents 1 to 4 herein to lead evidence in support of their claim petition. The respondents 1 to 4 herein produced three witnesses in support of the claim petition proving therein that the deceased was workmen within the meaning of the Act having died in and during the course of employment rendering respondents/petitioners herein liable to pay compensation to them.

10. Perusal of the record of respondent no. 5 further tends to show that upon closure of the evidence of the respondents 1 to 4 herein, the respondent no. 5 herein provided an opportunity on 11-03-2020 to the respondents/petitioners herein to lead evidence in support of the case set up by them in their objections.

11. A further perusal of the record of the proceedings of the respondent no. 5 would tend to show that after 11th March, 2020, the respondents/petitioners herein absented themselves and did not lead any evidence either in rebuttal to the evidence lead by the respondents 1 to 4 herein or else in support of the case set up by them in the objections filed in opposition to the claim petition.

12. Perusal of the record would reveal that the respondent no. 5 upon failure of the respondents/petitioners herein proceeded ex-parte against the respondents/petitioners herein on 26-09-2020 and thereafter posted the case for Judgment and consequently passed the impugned award on 21- 11-2020.

13. Be that as it may, and before proceeding further in the matter it is significant to note here that the Workmen Compensation Act, 1923 is a piece of welfare legislation intended to provide an injured workmen or the dependants of the deceased workmen who is injured or meets his death by an accident arising out of an or in the course of his employment. Section 9 of the Act lays down a scheme for determination of compensation payable to the injured work of the dependants of deceased workmen which is less time consuming, hassel free and intended to ensure that the claim petition is dealt with and disposed of with proper due dispatch. Underlying object of the Act is that the injured workmen or the dependants of the deceased workmen should not be left high and dry without any source to fall back upon. It is as part of the said object, that the employer against whom an award is made is required to deposit the same with the Commissioner under the Act and employer is deprived of right to file appeal against the award unless and until the employee in the first instance makes deposit of the compensation amount with the Commissioner under the Act. The purpose under the Act again in short that the payment of compensation determined by the Commissioner is paid/disbursed to the workmen and is not halted by procedural wrangles and further litigation frustrating the very purpose of the Act.

14. Keeping in mind the aforesaid scheme of the Act, indisputably Section 30 of the Act provides for a remedy of appeal against an award passed by the Commissioner subject to the fulfillment of the conditions enumerated and provided therein.

15. Admittedly the petitioners in the instant petition though aggrieved of the impugned award on multiple grounds have chosen to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution while by-passing the said statutory remedy of appeal that too without spelling out any cogent and credible reason in the petition thereof. In presence of the said statutory remedy of appeal as also having regard to the nature of issues raised in the petition by the petitioners, in particular, the question of status of the deceased as being not a workmen having been appropriately dealt with and adjudicated upon by the respondent no. 5 in the light of the pleadings and evidence lead by the respondents 1 to 4 based on facts inasmuch as in view of failure of the petitioners herein to lead evidence in rebuttal to the evidence lead by the respondents 1 to 4 herein before respondent no. 5 as also the case set up by the petitioners before respondent no. 5, the question of exercise of supervisory jurisdiction under Article 227 of the Constitution cannot said to be warranted by any sense of imagination in the facts and circumstances of the case more so, in view of the parameters laid down by the Apex Court in various Judgments including the one titled as "Shalini Shayam Shetty and Anr. Vs. Rajendra Shankar Pati"

reported in 2010 (8) SCC 3291 wherein at clause (C) (H) and (O) following has been provided;

(c) "High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it.

Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

16. The petition in view of the aforesaid facts and circumstances is grossly misconceived and, as such, entails dismissal. Accordingly petition is dismissed without any costs.

(JAVED IQBAL WANI) JUDGE SRINAGAR 02.02.2023 Sakeena Whether Order is approved for reporting? Yes

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Jammu & Kashmir High Court - Srinagar Bench