Jammu & Kashmir High Court - Srinagar Bench
State And Others vs Ghulam Mohamad 1992 Klj Page 244 It Has ... on 25 March, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CIA No. 163 of 2009 CMP No. 552 of 2009 State and Others Petitioners Commissioner under Workmans Compensation Act and Others Respondents !Mr. M. A. Chasoo, Advocate ^Mr. J. I. Ganai, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 25/03/2010 :J U D G M E N T:
Section 30 Workmans Compensation Act, 1923, provides for an appeal against the order of the Commissioner under the Act, awarding compensation or disallowing a claim for compensation, in full or in part. Section 30 (1) 3rd Proviso inserted by the Act, 15 of 1933 reads; Provided further that no appeal by an employer under class (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect the appellant has deposited with him the amount payable under the order under appeal against . The respondents herein, who were the claimants before the respondent No. 1, seek to press into service Section 31 (a) 3rd Proviso to assail very maintainability of the appeal against the order passed by respondent No. 1 on 13.8.2009, awarding compensation of Rs. 4,78,842/- to the legal representatives of the deceased workman Late Mohamad Ashraf Dar Son of Ghulam Ahmad Dar Resident of Katipora Tangmarg. The back ground facts are as under:-
Sh. Mohamad Ashraf Dar Son of Ghulam Ahmad Dar Resident of Kotipora Tangmarg a workman with the respondents met a tragic death on 28.2.2007, due to electric shock while repairing electric line at Tangmarg. Mst. Dilshada Akhter Wife of the deceased workmen and her children- respondents 2 to 6 in the present appeal filed a claim for compensation, before the Commissioner under the Act, (Assistant Labour Commissioner, Baramulla) on 9.4.2007. The Commissioner under the Act, after conducting the necessary proceedings in the claim petition, allowed the petition on 13th August 2009 and directed the respondents in the claim petition to pay the aforesaid amount of compensation to the claimants. The award of the Commissioner under Act, dated 13.8.2009, is being assailed in the present appeal. It is argued by the Learned Counsel for the respondents 2 to 6 that the appeal has been filed unmindful of and in violation of Section 30 (1) (a) 3rd proviso and thus is not maintainable. It is insisted that in terms of aforesaid proviso it is mandatory requirement for the employer to deposit the award amount with the Commissioner under the Act, obtain a certificate in this regard from the Commissioner before filing an appeal against the award and further to append the certificate so obtained evidencing deposit of the award amount, with the memorandum of appeal. It is submitted that once the employer has not deposited the award amount with the Commissioner under Act, and thus not obtained the certificate and enclosed it with the memorandum of appeal, the appeal does not satisfy mandate of said provision. It is argued, that subsequent deposit of the award amount with the registry of the Court is of no consequence and can not amount compliance with the requirements of Section 30 (1) (a) 3rd proviso. Learned Counsel for the appellant on the other hand insists, that the requirements of aforesaid provision are fully satisfied by deposit of the awarded amount to with the registry of the Court.
Heard and Considered.
Workmans Compensation Act, is a piece of welfare legislation intended to provide immediate relief to an injured workman or the dependants of a deceased workman who is injured or meets his death by an accident arising out of and in the course of his employment. Section 9 provides that the compensation awarded by the Commissioner under the Act, shall not in any way be capable of being assigned or charged or liable to attachment. Section 4 makes it obligatory for the employer to pay compensation to the injured workman or dependants of the deceased workman within 30 days from the date the compensation has become due, even without waiting for the workman or his legal representatives to file the claim petition. If the employer finds the claimed amount excessive and exorbitant, the employer is to deposit such amount as is acceptable to him. It needs to be pointed out that the compensation becomes due on the date of its accident. The employer can delay payment of compensation beyond 30 days at the risk of his being saddled with the responsibility to pay interest on the compensation amount and even penalty to the extent of 50% of the compensation amount. The Act lays down the scheme for determination of the compensation payable to the injured workman or dependants of the deceased workman which is less time consuming hassle free and is intended to ensure that the claim is dealt with and disposed of with the proper dispatch. Underlying object is that the injured workman or dependants of a deceased workman 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 compensation with the Commissioner under the Act, and the employer is deprived of right to file appeal against the award unless and until the employer in the first instance makes deposit of the compensation amount with the Commissioner under the Act. The purpose again is to ensure that the payment of compensation determined by the Commissioner under the Act, is paid/disbursed to the workman is not thwarted by procedural wrangles and further litigation and very purpose of the Act frustrated. While interpreting any of the provision of the Act, including Section 30, the object and purpose of the Act, is not be lost sight of the legislature while conferring a right of appeal has found it necessary to impose conditions and limitations on the right so statutorily conferred, with the underlying object of the Act, in mind. The statute conferring jurisdiction under certain conditions can not be taken to confer a jurisdiction also in cases which do not conform to such conditions or otherwise fall within their ambit, merely on the basis of analogy. In case of statutory appeal against the award/order of Commissioner under the Act, legislature in its wisdom has found it necessary to lay down requirement for the employer to deposit the award amount before preferring the appeal and has further found it necessary to lay down the mode and manner in which the award amount is to be deposited and the authority with whom it is to be deposit. There is no scope for making room for any departure from the mode and manner of the deposit laid down under the statute. If a statute casts the duty and lays down mode and manner in which duty is to be performed, it is not only necessary to perform the duty or an act, but it is equally necessary to perform the duties in the mode and manner laid down in the statute. In case of appeal against the award of Commissioner under Act, had the legislature not intended that the award amount must be compulsorily deposited with Commissioner under the Act, and a certificate of such deposit from the Commissioner under the act, appended to the memorandum of appeal, the legislature would have very conveniently required the employer to pay the compensation amount to the claimant or deposit the compensation amount with the Appellate Court before preferring the appeal against the award of the Commissioner under the Act. The legislature in order to ensure that the award amount was secured had a number of options available and any of the options including the one of requiring deposit of the award amount with the Appellate Court could have been prescribed. However, legislature has laid down the mode of deposit of the award amount with the authority and identified the authority with whom the deposit is to made in unambiguous words, leaving no scope for any deviation and departure from the mode laid down in Section 30 (a) (1) 3rd proviso. In J&K SFC Vs. Ghulam Mohamad 1992 KLJ page 244 it has been laid down, that a cheque, a bank draft, cash in deposit or any other kind of security is no substitute for the deposit of the amount with the Commissioner under the Act, and the memo of appeal accompanied by a certificate of the Commissioner to that effect. Court held that allowing any mode of deposit of Award money other than one laid down under Section 30 (1) (1) 3rd proviso would amount to rewriting law. In Khet Ram Manohar Lal Vs. Sankar Mandal 1975 Lab. IC 274 the deposit of the award amount in the Government Treasury was held not to be sufficient compliance with Section 30 (a) (1) 3rd proviso, when the certificate of the Commissioner was not in prescribed form. In Firm Amar Nnath Baldev Raj Forest lessees Vs. Des Raj and two others KLJ 1989 page 89, the appeal filed by the employer was accompanied by the cheque of the awarded amount. The court holding the provision requiring filing the certificate of deposit along with the memo of appeal being mandatory and warranting strict compliance observed:-
.It thus clearly indicates that in cases of compensation under the Act, the legislature in its wisdom thought it fit being a social beneficial legislation for the protection and benefits of the weaker class of society the worker who is injured during the course of employment or on account of his death, whose survivors are entitled to claim compensation under the Act, their interest should be safe- guarded by making it imperative on the part of the employer, in case he files an appeal to deposit the awarded amount with the Commissioner and obtain a certificate from him, which should accompany with the memorandum of appeal. If the employer under the circumstances is allowed to choose his own manner of payment by way of enclosing the cheque or leisurely to deposit the amount with the Commissioner after a long lapse of time, the very purpose of the legislation be frustrated by allowing such appeals to entertain without the performance of the mandatory requirement of the proviso. It is the mandate of law, the fulfillment of which is a condition precedent for the entertainment of an appeal as the words no appeal by an employer under clause
(a) shall lie makes it abundantly clear the non compliance of which makes the appeal in -
competent. The principle has been reiterated in 2008 (1) JKJ 339 (SC) where appeal by an insurer not satisfying the requirements of Section 30 (1) (a) 3rd proviso was held not maintainable. Needless, to mention, that insurer steps in the shoe of employer where the insurer has agreed to indemnify the employer in the event of accidental injury or death to its employee and if the appeal filed by the employer is incompetent for non compliance with the requirements of Section 30 (a) (1) 3rd proviso it is equally incompetent when such an appeal in the identical circumstances filed by the insurer. In the present case, the employer has not made the deposit of the award amount with the Commissioner under the Act, and obviously not accompanied the memorandum of appeal by a certificate by Commissioner to the effect that appellant has deposited with him the amount payable under the order in appeal against. There has been thus non-compliance with Section 30 (1)
(a) 3rd proviso . The aforesaid provision, it may be stated at the cost of repetition, provides in unequivocal terms that no appeal by an employer under clause (a) shall lie unless the memorandum is accompanied by such a certificate. The appellant has instead deposited the award amount with the NAZIR of the Court of his own without any permission from the court or a direction in this regard. Mere deposit of the award amount with the NAZIR can not be a substitute for depositing of the award money with the Commissioner and a receipt of the NAZIR cannot be substitute for the certificate of the Commissioner as provided under Section 30 (1) (a) 3rd proviso.
The appeal in the circumstances is not maintainable and liable to be dismissed. The appeal is accordingly dismissed as not maintainable.
(Hasnain Massodi) Judge Srinagar 25.03.2010 Yousf