Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 01.07.2024 vs Mst. Fazi on 12 July, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA 93/2023
Reserved on: 01.07.2024
Pronounced on: 12.07.2024
1 Chief Engineer Power Development Department KPCDL Srinagar
2 Executive Engineer Electric Maintenance Division Awantipura
3 Assistant Executive Engineer PDD KPDCL Tral.
Appellants(s)
Through: - Mr. Alla-u-din Ganai AAG with
Ms. Shaila Shamim Advocate.
Vs.
1 Mst. Fazi, mother
2.Mst Zareefa, widow
3. Iram Jan, minor daughter
4. Uzair Ahmad minor son
of deceased workman Fayaz Ahmad Dar,
all residents of Satoora Tehsil Aripal Tral Pulwama
5. Commissioner under Employees Compenation Act, 1923
(ALC) Pulwama
...Respondent(s)
Through: - Mr. Younis Bhat Advocate.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR,JUDGE
HON'BLE MR JUSTICE M.A.CHOWDHARY, JUDGE
JUDGMENT
Sanjeev J 1 This intra-Court appeal by the appellants is directed against an order and judgment dated 02.02.2023 passed by a learned Single Judge of this Court in CM(M) No. 105/2021 titled 'Chief Engineer Power Development Corporation, Srinagar and others vs. Mst. Fazi and others' whereby the learned Single Judge has dismissed 2 the petition filed by the appellantspurportedly under Article 227 of the Constitution of India assailing an award dated 21.11.2020 passed by the Commissioner under Employees Compensation Act, 1923, (ALC), Pulwama ['the Commissioner'] in case titled 'Mst Fazi and others vs Chief Engineer Power Development Corporation and others'. 2 The petition filed to assail the impugned order has been dismissed by the Single Judge of this Court,primarily,on the ground that in the face of availability of statutory remedy of appeal provided under Section 30 of the Employees Compensation Act, 1923 ['the Act'], petition under Article 227 of the Constitution of India is not maintainable and that the appellants skirted the statutory remedy of appeal to avoid pre-deposit envisaged under Section 30 of the Act. The Single Judge relied upon the judgment of Hon'ble Supreme Court in the case of Shalini Shayam Shetty and another vs. Rajendra Shankar Pati, 2010 (8) SCC 3291 and concluded that mereerrors of law and fact cannot be interfered with by the High Court in exercise of power of superintendence vested in it under Article 227 of the Constitution of India.
3 The impugned judgment by the learned Single Judge is challenged by the appellants, inter alia, on the ground that the learned Single Judge failed to appreciate that the deceased employee, namely Fayaz Ahmed Dar was not a 'workman' as defined under the Act and, therefore, the Commissioner lacked jurisdiction to entertain the application of his legal heirs under Section 22 of the Act. The impugned judgment is also assailed on the ground that aspecific defence taken by the appellants before the Commissioner that 3 respondents No. 1 to 4 (the legal heirs of the deceased employee) had been adequately compensated by payment of Rs.5.00 lacs from Janta Insurance and by providing employment under SRO 43 of 1994. Other benefits like welfare fund of Rs.10,000/-, G.P. Fund of Rs.3,74,360/- and leave salary for an amount of Rs.2,07,000/- were also granted to family of the deceased. The Single Judge did not consider this aspect of the matter and erroneously upheld the impugned award passed by the Commissioner.
4 Per contra, learned counsel appearing for respondents 1 to 4 raised a preliminary objection with regard to maintainability of the appeal under Clause 12 of Letters Patent against an order and judgment passed by the Single Judge in exercise of power of superintendece vested by Article 227 of the Constitution of India. The learned counsel for respondents 1 to 4 also supported the judgment of the Single Judge and submitted that the Single Judge was correct in dismissing the petition of the appellants filed under Article 227 of the Constitution of India in the face of availability of statutory remedy provided under Section 30 of the Act. He argued that the petition under Article227 of the Constitution of India was filed by the appellants only to avoid pre- deposit of the awarded amount which is sine qua non for filing a appeal under Section 30 of the Act. Regarding amount of Rs.5.00 lacs received under Janta Insurance, it is submitted that the Janta Insurance Policy is a personal accident policy whereby an employee is insured on payment of premium which is deducted from his salary. The aforesaid amount of insurance, it is contended, is payable even if the deceased employee would not have died during and in the course of his duties. 4 5 Having heard learned counsel for the parties and perused the material on record, we are of the considered opinionthat the judgment passed by the Single Judge is perfectly legal and the view taken is unexceptionable.
6 Before we advert to factual matrix of the case, we deem it appropriate to deal with the preliminary objection to themaintainability ofthe appeal raised by leaned counsel appearing for respondents 1 to 4. 7 Intra-Court appeal in this Court is governed by clause 12 of the Letters Patent which, for facility of reference, is set out below:
"12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of powers of superintendence) of one judge of the said High Court or one judge of any Division Court and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one judge or the said High Court or one judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High court where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of the judges of the said High Court or of such Division court shall be to Us, Ours heirs or successors and be heard by our Board of Judicial Advisors for report to us".
8 From a plain reading of the provision i.e clause 12 of the Letters Patent, in particular the highlighted portionthereof, it becomes abundantly clear that intra-Court appeal is not maintainable, inter alia, against an order passed or made by the Single Judge in exercise of power of superintendence.
59 Indisputably, Article 227 of the Constitution of India confers upon the High Court power of superintendence, both judicial as well as administrative. In the case on hand, the appellants had specifically invoked the power of superintendence vested in this Court under Article 227 of the Constitution of India. From the very cause title of the petition and the prayer made, it is abundantly clear that the appellants consciously invoked the jurisdiction of learned Single Bench vested in it under Article 227 of the Constitution. The appellants hadnot sought a writ of certiorari for quashing the impugned order, but had desired setting aside of the award of the Commissioner by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The Single Bench also considered the prayer of the appellantsin the exercise of jurisdiction under Article 227 of the Constitution of India. That being the admitted position, it does not lie in the month of the appellants to contend that the petition filed before the Single Bench purportedly under Article 227 of the Constitution of India could be treated as a petition under Article 226 of the Constitution of India.
10 We are aware that nomenclature of the petition is not a determining factor to conclude as to whether a particular petition filed is under Article 227 or Article 226 of the Constitution of India. The pleadings in the petition, nature of order passed by the Single Bench, character and contour of the order, directionsissued etc., are some of the factors which are required to be considered before determining as to whether a particular petition would fall under Article 226 or Article 227 of the Constitution of India.
611 It is no more debatable that the Tribunals like the Commissioner under Employees Compensation Act, 1923 are amenable to the writ jurisdiction of the High Court as well as the supervisoryjurisdiction vested in the High Court under Article 227 of the Constitution of India. The aggrieved party has a discretion in the matter and may invoke one of the two remedies having regard to the fact that both jurisdictions are exercised on different parameters. The jurisdiction vested in this Court under Article 226 of the Constitution of India is wider than the jurisdiction vested under Article 227 of the Constitution of India. The appellants in their wisdom invoked the jurisdiction of this Court vested in it by Article 227 of the Constitution of India alleging that the Commissioner had exceeded its jurisdiction by granting the application under Section 22 of the Act despite the fact that the deceased was not a 'workman' and also that the legal heirs of the deceased employee had already been adequately compensated. 12 Viewed thus, we are ofthe considered opinion that not only the appellants invoked the power of superintendence vested in this Court under Article 227 of the Constitution of India, but the learned Single Bench also exercised the said jurisdiction and dismissed the petition filed by the appellants. The order impugned having been passed under Article 227 of the Constitution of India, which is the power of superintendence of the High Court over the Courts and Tribunals subordinate to it, is not amenable to appeal under clause 12 of the Letters Patent. The preliminary objection raised by learned counsel appearing for respondents 1 to 4, thus, succeeds. 7 13 That apart, even if we were to assume that the order impugned passed by the Single Bench is in exercise of writ jurisdiction vested in the High Court under Article 226 of Constitution of India, yet we find no case for interference with the well reasoned judgment of the Single Bench.
14 Indisputably, Section 30 of the Act provides remedy of appeal against an order awarding compensation and such appeal shall lie only if a substantial question of law is involved in the appeal and the amount in dispute in the appeal has been deposited with the Commissioner and a certificate issued by such Commissioner accompanies the appeal. The appellantswas aware of the statutory provisions and with a view to skirt pre-deposit fileda petition under Article 227 of the Constitution of India instead of statutory appeal under Section 30 of the Act. As is rightly held by the Single Bench that the petition under Article 227 of the Constitution of India before this Court was preferred only with a view to avoiding deposit of amount payable under the order appealed against.
15 On being confronted with the aforesaid position, learned counsel appearing for the appellantss could not make out a case to justify filing of petition under Article 227 of the Constitution of India instead of a statutory appeal provided under Section 30 of the Act. The observations made by the Supreme Court in the case of Shalini Shayam Shetty and another (supra) which are reproduced in the impugned judgment passed by the Single Bench are a complete answer to the submissions made by learned counsel for the appellantss. 8 16 It is trite that the High Court cannot, on the mere drop of hat, exercise its powers of superintendence under Article 227 of the Constitution of India and interfere with the orders of the Tribunals or Courts inferior to it. The High Court cannot, in exercise of its power, convert itself into a Court of appeal over the orders passed by the Courts or Tribunals subordinate to it.Where the statute provides an alternative statutory remedy for redressal, that would also operate as a restrain on the exercise of this power by the High Court. An employer cannot keep aside provisions of Section 30 which provide remedy of appeal to the person aggrieved by the order of the Commissioner awarding compensation and resort to Article 227 of the Constitution of India to invoke the power of superintendence of the High Court to set aside such award passed by the Commissioner under the Act. The Employees Compensation Act, 1923 is a piece of welfare legislation intended to provide for compensation to an injured workman or the dependants of deceased workman who suffers injuries or meets his death as the case may be in an accident arising out of and in the course of his employment. Ordinarily, an award passed by the Commissioner under the Act ought to be complied with by the employer and the awarded amount immediately disbursed. However, in rare cases where thereis substantial question of law involved, the aggrieved employer can prefer an appeal under Section 30 of the Act. The Legislature, in its wisdom, has, with a view to securing the awarded amount, has provided that deposit of the amount payable under the award appealed against before the Commissioner would be sine qua non for entertaining such appeal. The employer is not given a discretion to skirt the provisions of Section 30 of the Act and with a view to avoid pre- 9 deposit required thereunder, file a petition under Article 227 of the Constitution of India and seek setting aside of the impugned award asa matter of right.
17 It would be relevant at this point of time to place reliance upon a judgment of the Supreme Court in the case ofSales Tax Officer Jodhpur and another vs M/S Shiv Rattan G. Mohatta, 1966 AIR 142wherein a similar issue was dealt with in the following terms:
"We are of the opinion that the High Court should have declined to entertain the petition. No exceptional circumstances exist in this case to warrant the exercise of the extraordinary jurisdiction under Article 226. It has not been the object of Article 226 to convert High Courts into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore exempt from tax. It was urged on behalf of the assessee that they would have had to deposit sales tax, while filing an appeal. Even if this is so, does this mean that in every case in which the assessee has to deposit sales tax, he can bypass the remedies provided by the Sales Tax Act?. Surely not. There must be something more in a case to warrant the entertainment of a petition under Article 226, something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of pulpable injustice to the assesseeto force him to adopt the remedies provided by the Act."
18 In view of the above legal position, it is beyond pale of any controversy that the simple fact that the compensation awarded has to be deposited before an appeal under section 30 of the Act can be entertained, would furnish no ground to entertain a petition under Article 227 of the Constitution bypassing a statutory remedy of appeal. 19 Though we have already held that neither the petition under Article 227 of the Constitution before the Single Bench, nor the 10 appeal against the order passed by the Single Bench in the exercise of power of superintendence vested in it under Article 227 is maintainable under clause 12 of the Letters Patent, yet we will also like to deal with the only defence sought to be projected by the appellants to deny payment of compensation to respondents 1 to 4i.e the amount of Rs.5.00 lacs paid to dependents of deceased employee under Janta Group Insurance Policy. Although the appellants have not placed on record a copy of the insurance policy, yet we have found such insurance policy containing certain terms and conditions available on the official website of the UT of Jammu and Kashmir. The Janta Group Insurance policy is a personal accident insurance plan that covers death, permanent disability, loss of limbs or sight in eyes etc. due to an accident. The sum assured under the policy per employee is against the payment of a yearly premium which is deducted from the salary of the insured employee. There is no contribution as such made by the Government. That being the position, any amount payable under such policy cannot be setoff from the awarded amount which is payable to an injured employee or the dependents of deceased employee under the Act. 20 A Single Bench of this Court has elaborately considered this issue in the case of Naseera Nazir and others vs. Executive Engineer, 1997 SLJ 328and held that payments like ex-gratia, if any, received by the dependents of the deceased do not absolve the employer from itsliability under the Act. It is, thus, trite that the amountslike gratuity, ex-gratia payment, payment under personal accident insurance etc., are the benefits that are payable to the 11 dependents of the deceased workman who has died even otherwise than in an accident happening out of and in the course of his employment. Such payments which are made to dependentsof the deceased employee under Service Rules or the policies of insurance taken by such employee cannot be setoff against the compensation payable to the dependents of such deceased employee under the provisions of the Act. The plea of the appellants that a sum of Rs. 5.00 lacs which was received by the dependents of deceased employee on account of Janta Group Insurance Policy and employment of one of dependents on compassionate basis etc. ought to have been setoff by the Commissioner while awarding compensation to the respondents is without any substance and deserves to be rejected outrightly. 21 Viewed from any angle, we find no merit in the submissions made by learned counsel for the appellants and hold this appeal wholly not maintainable. Dismissedas such. Parties to bear their own costs.
(M.A.CHOWDHARY) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar
12.07.2024
Sanjeev
Whether the order is speaking: Yes
Whether the order is reportable: Yes
MIR ARIF MANZOOR
I attest to the accuracy and
authenticity of this document
15.07.24