Jammu & Kashmir High Court
J & K Sfc And Anr. vs Ghulam Mohd. on 8 May, 1992
Equivalent citations: 1993ACJ736, (1999)IIILLJ463J&K
JUDGMENT B.A. Khan, J.
1. Maintainability of this appeal is under cloud. Mr. M.P. Gupta, learned counsel for respondent, submits that the appeal falls short of a statutory requirement as it is not accompanied by a certificate from the Commissioner, certifying that appellants have deposited the amount awarded with him and, as such, the same does not lie in terms of 3rd proviso of Section 30 of the Workmen's Compensation Act (hereinafter called 'the Act'). The relevant provision reads as under :
"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."
Relying upon Commissioner of Income Tax v. Filmistan Ltd., AIR 1961 SC 1134, it was held by this Court in C.I.M.A. No.61 of 1985 that memorandum of appeal presented but not accompanied by the requisite certificate from the Commissioner would be taken to be validly; presented on the date Commissioner's certificate is placed on record, subject of course to the plea of bar of limitation. In other words, if memo of appeal is presented without the certificate and such certificate is brought on record subsequently but within the period of limitation prescribed for filing the appeal it would be considered validly presented and in order. But if the certificate is filed after the expiry of the period of limitation and there is no prayer by the appellant for extension of time by showing sufficient cause, it would run the risk of being rejected as barred by time.
2. The memo of appeal in the present case, directed against the award dated February 5, 1991, was presented on April 5, 1991. It was admittedly not accompanied by the all important certificates. On the contrary, it was accompanied by a cheque for the awarded amount. On April 17, 1991, this Court directed the amount to be deposited in cash before the DR which appears to have been done on April 26, 1991.
3. The matter, therefore, raises some interesting questions and it falls for determination whether the cheque appended with the memo of appeal could be a valid substitute for the Commissioner's certificate and whether the amount deposited pursuant to Court direction, though subject to just exceptions, can be held a substantial compliance of the requirement, prescribed in proviso 3 of Section 30 of the Act.
4. On a true interpretation of the proviso the answer should always be in the negative and this is so for a variety of reasons. It need be hardly emphasised that the relevant provision requires a memo of appeal to be accompanied by a certificate from the Commissioner, certifying that the appellant had deposited the awarded amount with him. The provision admits of no ambiguity and legislature has been loud and clear in laying down the requirement and in using the word 'shall', to lend it a mandatory character. The statutory requirement, therefore, is a certificate from the Commissioner and nothing less. It is not a cheque, a bank draft, cash in deposit or any kind of security for that matter. In the ultimate analysis all these may serve the same purpose as the certificate, but since the legislature has intended it to be that way, it can be in no other way.
5. I have, therefore, no doubt in my mind that nothing short of a Commissioner's certificate can meet the statutory requirement and all other modes of security resorted to constitute no valid substitute. Holding otherwise would amount to rewriting the Statute which is not the domain of this Court.
6. Would it make any difference if any other form of security/guarantee is furnished at the instance and under the orders of the Court? In my opinion, it does not alter the position any way for the simple reason that it is not the domain of Courts to add, alter or modify a provision of the Statute. Therefore, it should be taken to make no difference if some other mode is adopted by the appellants with the permission of the Court.
7. Given regard to this legal position, I am convinced that the appellant has failed to meet the requirements of proviso 3 of Section 30 of the Act and as the memo of appeal is not accompanied by a certificate from the Commissioner, even till date, this appeal cannot be treated to have been validly filed and, as such, would not lie.
8. Even if a liberal view was taken and the awarded amount deposited in this Court on April 26, 1991 construed to satisfy the requirements of the provision aforesaid, even then, this appeal would be taken to have been validly presented on April 26, 1991, about 20 days after the expiry of period of limitation. Since there is no application for condonation of delay or seeking extension in time based on any sufficient cause, the appeal would fail on this count also as it would be barred by time.
9. For the reasons given, I dismiss this appeal, uphold the award impugned and direct the DR to release the awarded amount in favour of the claimant after he is summoned in person and identified by his counsel. Record be returned.