Firm Amar Nath Baldev Raj Forest Lessees vs Des Raj & two Ors.

This Miscellaneous First Appeal is filed under Section 30 of the Workmen's Compensation Act, 1923 (here in after called the Act) against the

award of Rs. 23,320/ given in favour of respondents 1 & 2 by Commissioner Workmen's Compensation (Assistant Labour Commissioner), Dode

in File No : 4D/78 on May 27.1982.

Sadhu Ram S/6 Dogu x R/O Jodhpur, Tehshil Doda, a Workman empolyed by the present appellant met with, a fatal accident on December

21,1977 at 5 P. M at Kandhi while doing Mahan for his employer & died at Kishtwar Hospital due to those fatal injuries. The deceased left

behind him the widow Smt Mangti & two minor sons the present respondents 1 & 2. During the pendency of the claim petition before the

commissioner, Mangti died and the respondents 1 & 2 were represented through their next friend Lakhmi Ram through whom they are

Represented here as respondents. The learned Commissioner after notice to the employer/appellant & the Conservator of Forests, Chenab Circle

Jammu found that the deceased Workman died during the course of his employment & hence the survivors are entitled to the principal amount of

compensation of Rs. 18,500/with interest at the rate of 6 present per annum, which worked put to Rs. 4810/ with effect from January 22, 1978 till

the date to award.

The appellant/employer being aggrieved against the said award dated May 27, 1982 filed this appeal before this Court on 20, 1982

accompanied with a Cheque of 23, 310/ of Union Bank on India dated July 15, 1982 payable to Depute Registrar, High Court Jammu. On

issuance of notice of the appeal a, well as of the C. M. P. No, 155 of 1982 to the respondents, respondents 1 & 2 attacked/the maintainability of

the appeal on the plea that the appeal is not accompanied with the Certificate of the payment of the awarded amount under the provisions of

proviso 3 of subsection (1) of section 30 of the Act &o that the appeal is barred by limitation, because it cannot be deemed to be a proper

presentation unless accompanied with the certificate as required.

Faced with the above said objection as to (limitation and the maintainability of the appeal, appellant on December 9, 1983 filed an application

praying for the condonation of delay is making the deposit with the Assistant Labour Commissioner, accompanied with the certificate of payment

of an amount of Rs. 93,310; dated December 6, 1983). In paragraph 6 of the application for condonation of delay, the only reason shown is to the

following effect :

That the appellant had been throughout under genuine impression and believing upon the same deposited the cheque aforementioned in the

Appellate Court. There was no intention to avoid deposit of the aforementioned sum before the competent authority and it is a sufficient cause of

depositing the aforementioned amount with the Assistant Labour Commissioner, Doda. The appellant has to specially arrange a person to go to

Doda & deposit the amount with the Assistant Labour Commissioner, Doda while the appellant is headquartered at Jammu.

In paragraph 7 a prayer is, therefore, made that the"" period between July 20, 1982 to December 6, 1983 be condoned and the cheque deposited

in the Court to be returned.

The short question which arises for determination in the present appeal is whether under the circumstances enumerated above, the delay in

depositing the amount with the Commissioner can be condoned and the appeal can be held to be competent without filing the Certificate of

payment alongwith the appeal.

Learned counsel for the appellant by arguing at length tried to persuade us by showing that by accompanying the cheque of the awarded amount

with the appeal, which is filed within time, as the period of limitation as prescribed under section 30 of the Act is sixty days, it is sufficient

compliance and later on by depositing of the amount with the Commissioner & on production of the certificate the formality having been complied

with, delay deserves to be condoned. The argument is controverted by the learned counsel for the respondents by showing that proviso 3 of

subsec. (1) of section. 30 of the Act compulsorily requires that a Certificate must accompany with the appeal & no appeal by an employer under

clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate.

To appreciate the argument, reproduction of the provision will be useful :

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

(a) an order awarding as compensation a lumpsum whether by way of redemption of a halfmonthly payment or otherwise of disallowing a claim in

full or in part for a lumpsum;

XXX "" XXXX XXX

XXX XXXX XXX

XXX XXXX XXX

XXX XXXX XXX

Then the third proviso provides as foliowsv:

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 1 him the amount payable under the order appealed against.""'

The above proviso is added by Act No; 15 of 1933. 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 safeguarded by making it imperative on the part of the employer, in case he files an appeal to deposit the awarded amount with the

Commissioner & 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 a"" the words

no appeal by an employer under clause (a) shall lie makes if abundantly clear the noncompliance of which makes the appeal in computer order to

get the benefit of section 5 of the Limitation Act, it is not sufficient merely to show that the appellant was under a genuine impression and believing

upon the deposited cheque ""with the appeal or that he never intended to avoid to deposit the awarded anfount and filed the certificate by

depositing the amount after a long lapse of about is years, it cannot be either termed as bonafide or sufficient cause within the meaning of section 5

of the Limitation Act therefore, find that there Is no sufficient cause available to the petitions/appellant to get the delay condoned in depositing the

amount and filing the certificate, which admittedly did not accompany the Memo of Appeal, which is in clear violation of proviso 3 to subsection

(1) of section 30 of the Act. The provision of filing the certificate alongwith the Memo of appeal being mandatory, strict f compliance is necessary.

The application for condonation of delay is therefore, rejected.

As a result of rejection of the application for condonation of delay, the present appeal in the absence of the accompanying certificate as required

under proviso 3 to subsection (1) of section 30 of the Act, which is a mandatory requirement, the appeal becomes' incompetent and the defect is

not cured by presentation of the cheque with the Memo of appeal in the High Court. We have already taken a similar view in Civil 1st Misc.

Appeal No: 81 of 1982 (Executive Engineer, Flood Control Division, Akhnoor Versus Smt. Swarna Devi & others) and for the noncompliance of

the proviso for t not filing the certificate alongwith the appeal dismissed the appeal as not maintainable by order dated December 29,1986. The

appeal therefore, fails being incompetent and not maintainable, |this also disposes of CM P, No, 155 of 1982 and the interim order passed, on July

27,1982 stands vacated. Under the circumstances, there shall be no order as to costs.