Kerala High Court
Subi vs Employees Compensation Commissioner on 28 January, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941
WP(C).No.34760 OF 2019(T)
PETITIONER :
SUBI,
AGED 43 YEARS
W/O.LATE PAILY, AIRATTEL HOUSE, AYODE,
P.O.POOVANCHIRA, THRISSUR DISTRICT,
PIN-680652.
BY ADVS.
SRI.A.R.NIMOD
SRI.M.A.AUGUSTINE
RESPONDENTS :
1 EMPLOYEES COMPENSATION COMMISSIONER,
THRISSUR.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY TO DEPARTMENT OF LABOUR,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.
3 KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY,
VYDHUTHI BHVAN, PATTOM,
THIRUVANANTHAPURAM-695004.
R3 BY SRI. ASOK M.CHERIYAN, SC, KSEB
SRI N SATHISH, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.34760 OF 2019(T) 2
JUDGMENT
Paily @ Wilson, the husband of the petitioner herein, was a workman employed under the Pattikad Electrical Section under the 3rd respondent. He was electrocuted on 29.11.2003 in the course of his employment while he was switching off a link line at Kannara. Crime No.294 of 2003 was registered at the Peechi Police Station in relation to the incident.
2. When the amount due to the legal heirs were not disbursed, the petitioner herein along with her minor children and her mother-in-law filed W.C.C.No.97 of 2004 before the Commissioner for Workmen's Compensation under Section 22 of the Workmen's Compensation Act, 1923 (for short, 'the Act'). Though notice was issued, the respondents did not appear. They were set ex parte and after recording evidence, the petition was allowed by order dated 20.12.2005 directing the 3 rd respondent to pay a sum of Rs.3,94,120/- (Rupees Three Lakhs Ninety Four Thousand One Hundred and Twenty only) together with simple interest at the rate of 12% per annum from the date of accident, i.e., on 29.11.2003, till the date of deposit and also to pay funeral expenses of Rs.2,500/-. WP(C).No.34760 OF 2019(T) 3
3. The grievance of the petitioner is that though the order was passed more than 1½ decades back, the 3 rd respondent have not satisfied Ext.P2 award. She has thus approached this Court seeking the following reliefs:
(i) issue a writ in the nature of mandamus directing the 1st respondent to order revenue recovery as per Ext.P1 award and Ext.P3 and P4 applications; and
(ii) issue a writ in the nature of mandamus directing 2 nd to take necessary steps to retrieve the files of WCC 97/2004 from office of Deputy Labour Commissioner, Thrissur; and
(iii) issue a writ in the nature of mandamus directing 3 rd respondent to take necessary steps to satisfy Ext.P2 award along with interest; and
4. Sri. Nimod A.R., the learned counsel appearing for the petitioner submits that there is no justification on the part of the 3 rd respondent in refusing to comply with the award which was passed way back in 2005. According to the learned counsel, her husband had died in the course of his employment with the 3 rd respondent while he was trying to switch off a link line in order to avoid a greater tragedy. He was working under the 3 rd respondent for the better period of 13 years. He would further contend that as per the WP(C).No.34760 OF 2019(T) 4 provisions of the Act an appeal had to be preferred within sixty days and no appeal has been preferred till date. Unless a substantial question of law is involved, the appeal is not even entertainable. It is further contended that the petitioner herein had approached the 1 st respondent seeking to initiate revenue recovery proceedings and filed Ext.P3 petition on 25.11.2011. However, no steps were taken. Later, the petitioner approached the newly notified Employment Compensation Commissioner seeking to initiate execution proceedings but she was told that the entire files pertaining to W.C.C. No.97 of 2004 are missing. She had no other option to approach the Commissioner and file Ext.P4 execution petition on 28.03.2018 yet again. However, she was told that the entire files are missing and hence, the likelihood of the petitioner obtaining compensation for the untimely death of her husband is remote.
5. This Court by order dated 18.12.2019 had directed the 3rd respondent to inform this Court about the steps taken by them for deposit of compensation determined by the Commissioner for Workmen's Compensation.
6. It is submitted by Sri. N. Satheesh, the learned counsel appearing for the 3rd respondent, that the 3rd respondent has filed an WP(C).No.34760 OF 2019(T) 5 application to set aside the ex parte order before the Employees Compensation Commissioner in the year 2018 and the same is pending.
7. I have considered the submissions advanced. I find from Ext.P2 that the order granting compensation for the death of the husband of the petitioner was rendered as early as on 20.12.2005. Even according to the 3rd respondent, the application seeking to set aside the ex parte order was preferred only in the year 2018. At this juncture, it would be apposite to refer to Section 30 of the Workmen's Compensation Act, 1923 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; [(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 workman, 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 WP(C).No.34760 OF 2019(T) 6
(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 three hundred rupees:
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:
[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 [the Limitation Act, 1963 (36 of 1963)], shall be applicable to appeals under this section.
8. On a reading of Section 30, it is evident appeal had to be preferred before the High Court within a period of 60 days. An appeal is not maintainable unless a substantial question of law is involved. Furthermore, the amount which is payable under the order WP(C).No.34760 OF 2019(T) 7 appealed against is also to be deposited and the certificate by the Commissioner has to be obtained.
9. Having gone through the entire records which are made available to this Court, I find no justification on the part of the 3rd respondent in failing to comply with Ext.P2 award. The attempt, it appears, is to protract the matter and deprive the lady and her children the benefits that they should have obtained in the year 2005 itself. Filing of an application in the year 2018 to set aside an order passed in the year 2005 is just another ploy to delay the inevitable. The amount ordered by the Commissioner to be paid to the legal heirs of the deceased workman is not a bounty, but the same is the amount awarded to the family by way of compensation for the immeasurable loss sustained by them. The petitioner cannot be asked to run from pillar to post to realize the amount granted to her by a statutory Tribunal. Considering the entire facts, I am of the view that this is a fit case wherein directions are to be issued to the 3rd respondent to satisfy Ext.P2 award with interest.
In the result, this Writ Petition is allowed. The 3rd respondent shall satisfy Ext.P2 award together with interest as ordered from the date on which it fell due. The amount shall be disbursed WP(C).No.34760 OF 2019(T) 8 expeditiously, at any rate, within a period of sixty days from the date of receipt of a copy of this judgment.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE NS WP(C).No.34760 OF 2019(T) 9 APPENDIX PETITIONER(S) EXHIBITS:
EXHIBIT P1 COPY OF THE APPLICATION FOR COMPENSATION NO.W.C.C.97/2004.
EXHIBIT P2 COPY OF THE AWARD, DATED 20.12.2005.
EXHIBIT P3 COPY OF THE PETITION DATED 25.11.2011.
EXHIBIT P4 COPY OF THE EXECUTION PETITION FILED DATED 28.03.2018 RESPONDENT(S) EXHIBITS : NIL