Fire Balls Securities and Others vs Commissioner, Workmen Compensation, Rewari and Others

Gurmeet Singh Sandhawalia, J.—Challenge in the present writ petition is to the order dated 27.6.2014 (Annexure P-2) passed by the Commissioner, Workmen Compensation under the Employee''s Compensation Act, 1923 (in short ''the Act'') whereby, sum of Rs. 6,62,512/- alongwith interest @ 12% has been held payable by the petitioner and Yes Bank.

Admittedly, under section 30 of the Act, an appeal lies to this Court against the said order. The Registry had also raised an objection regarding the maintainability of the writ petition, which was returned on the ground that the Commissioner had no jurisdiction to pass the said order and, therefore, the writ petition would be maintainable. Counsel for the petitioner has argued on the same line and placed reliance upon various judgments of the Apex Court in Western India Plywood Ltd. v. P. Ashokan 1977 (77) FLR 575 (SC), Atlas Cycle (Haryana) Ltd. Vs. Kitab Singh, , A. Trehan Vs. M/s. Associated Electrical Agencies and another, , Surya Dev Rai Vs. Ram Chander Rai and Others, , State of M.P. and Others Vs. Sanjay Nagayach and Others, .

Section 30 of the Act reads thus:-

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

(a) An order as 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 4-A;]

(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

(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.]"

It is apparent that in the proviso, it is specifically provided that a substantial question of law would give a good ground for filing an appeal. Any argument which is now sought to be raised that the Court had no jurisdiction can be substantially considered by this Court once the appeal is filed.

The judgment in Western India Plywood Ltd.''s case (supra) and A. Trehan''s case (supra) pertain to the bar of the right of the employee to claim compensation under the Workmen''s Compensation Act, 1923 in view of the provisions of Employees State Insurance Act, 1948. As noticed, the said argument can be raised before the Appellate Court after complying with the necessary requirement of section 30 of the Act. In Atlas Cycle''s case (supra) and Surya Dev Rai''s case (supra), the principles of supervisory jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India were laid down pertaining to the limits of jurisdiction while entertaining writ petitions against orders of the Labour Court and has no application to the facts and circumstances of the present case. In the judgment of Sanjay Nagayach''s case (supra), it was held that the alternative remedy of a statutory power would not be a bar under Article 226 of the Constitution wherein in view of the order passed by the Joint Registrar which was arbitrary and in clear violation of the M.P. Co-operative Societies Act, 1960. There is no quarrel with the said proposition as such, however, the petitioners cannot be allowed to deny the claimants the right to the compensation on account of the death of the workman way back on 10.6.2009 and it is only in exceptional cases the Court would be justified in entertaining the petition under Article 226 by bypassing the statutory remedy.

It is apparent that the present writ petition has only been filed to overcome the hurdle of the deposit with the Commissioner of the amount which has now been made payable.

A Division Bench of this Court in Piara Singh Vs. Commissioner, Workmen Compensation and Another, , overruled the judgment of this Court in Baru Ram Vs. Labour Officer and Others , wherein, certain observations were made that the appellate remedy was onerous on account of the deposit of the whole amount. The relevant observations read thus:--

"Consequently, the simple fact that the compensation awarded has to be deposited before an appeal can be entertained, would furnish no ground to entertain the writ petition bypassing the statutory remedy of appeal Moreover, the Workmen''s Compensation Act is a welfare legislation meant to provide speedy remedy to the workmen in case of injuries received by them in the course of their employment. The Legislature in its wisdom has laid down that the workman must get the compensation awarded before the matter is allowed to be taken up in appeal by the employer. The entertainment of the petition under Article 226 of the Constitution would obviously defeat the intent and purpose of the legislation and it would be only in rare and exceptional cases where the order on the face of it shows violation of some statute or inherent lack of jurisdiction that the Court would be justified in entertaining the petition under Article 226 of the Constitution bypassing the statutory remedy. We are, therefore, of the considered opinion that the decision in Baru Ram''s case (supra) was not correctly arrived at and overrule the same."

The Apex Court in City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and Others, , laid down the principles whereby, this Court would exercise its remedy under Article 226 of the Constitution of India. It was specifically held that this Court had to consider whether the petitioner has an alternative and efficacious remedy for the resolution of the dispute. Paragraphs 29 and 30 of that judgment read as under:--

"29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.

The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) Adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) The petition reveals all material facts;

(c) The petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) Person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) Ex facie barred by any laws of limitation;

(f) Grant of relief is against public policy or barred by any valid law; and host of other factors.

The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration or the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law."

The questions which are now sought to be raised can be effectively raised in the appeal which is provided and mandatory under the Act.

In such circumstances, this Court is of the opinion that the present writ petition is not maintainable and accordingly, the present writ petition is dismissed with liberty to the petitioners to seek their alternative remedy as provided under the law.