Sh. Baru Ram vs The Labour Officer acting as Commissioner under the Workmen's Compensation Act, Sonepat and others

J.M. Tandon, J.—Sadhu Ram respondent filed a claim petition (P. 1) for compensation on behalf of his minor son Roshan Lal (13) respondent alleging that the latter was employed with Baru Ram petitioner at his sugarcane crusher in village Chulkara. Tehsil and District Sonepat On March 11, 1974, Roshan Lal respondent while working on the sugarcane crusher in the employment of the petitioner met with an accident His hand was crushed in the crusher and the crushed hand was separated from the body. He prayed that his minor son Roshan Lal be got paid compensation by the petitioner who is the owner of the sugarcane crusher In pursuance of this claim petition the Commissioner under Workmen''s Compensation Act issued notice (P 2) to the petitioner for April 23, 1974 The petitioner submitted his written statement (P. 3) and contested the claim raised on behalf of Roshan Lal respondent. The petitioner stated in his written statement that Roshan Lal was not employed at his sugarcane crusher and that he was merely a volunteer who was watching the crusher for pleasure and enjoyment sake when he met with an accident. He further stated that the sugarcane crusher was not being run by him and that there was no contract employment between him and Roshan Lal. The parties were allowe to adduce evidence. The Commissioner vide order dated May 1, 1975 (P. 4) accepted the claim petition and directed the petitioner to pay Rs. 11800/-, including Rs, 3780/- by way of penalty under section 4 A of the Workmen''s Compensation Act (hereafter the Act) and Rs. 460/- by way of interest to Roshan Lal respondent. The petitioner has assailed the order P. 4 in the present writ petition.

The learned counsel for the respondent has argued that the writ petition is liable to be dismissed on the ground that an alterna five remedy of appeal under section 30 of the Act is available to the petitioner. The learned counsel for the petitioner has contended that this writ petition could not be dismissed on this ground because in the event of the petitioner Sling an appeal it is incumbent upon him to deposit the amount of compensation awarded to Roshan Lal respondent. Reliance has been placed on Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, . It has been held on Himmatlal Harilal Mehta''s case (supra) that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party has come to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Moreover, the remedy provided by the Act is of an onerous and burden some character and before the appellant can avail of it he has to deposit the whole amount of the tax, such a provision can hardly be described as an adequate alternative remedy. The ratio of this authority is applicable to the case under consideration and the writ petition cannot be dismissed on the ground that the petitioner can avail of alternative remedy of appeal under section 30 of the Act.

The learned counsel for the petitioner has argued that the Commissioner had not recorded a firm finding that Roshan Lal respondent met with an accident arising out of and in the course of his employment or the accident bad a nexus with his employment. In the absence of such a finding no foundation has been laid for awarding compensation to Roshan Lal. The impugned oreer P. 4 is liable to be set aside on this ground. The contention is without merit. The case of Roshan Lal before the Commissioner was that he was employed by the petitioner at his sugarcane crusher The petitioner denied this fact According to the petitioner, Roshan Lal met with an accident with the sugarcane crusher when he was just sitting there of his own. The Commissioner after recording the evidence led by the parties observed as under:--

All the P.Ws. have supported the case of the applicant saying that Roshan Lal was employed at Rs. 100/- P.M. with Baru son of Munshi at his cane crusher. The cause of accident while Roshan Lal lost his left arm through his shoulder has also been proved I have also seen the shoulder of Roshan. He has actually lost his left arm. The P.Ws. also stated that this case was also discussed in the village Panchayat where Baru admitted to make the payment of compensation of Rs. 10,000/- to Roshan Lal. 4. It is implicit in the order of the Commissioner that the petitioner had employed Roshan Lal respondent at his sugarcane crusher It is admitted that the accident in which Roshan Lal respondent lost his arm did take place with the sugarcane crusher. The Commissioner thereby held that Roshan Lal met with an accident with a sugarcane crusher and lost his arm during the course of his employment It is, therefore difficult to hold that no foundation was Lid by the Commissioner for awarding compensation to Roshan Lal.

The learned counsel for the petitioner has contended that there was no justification for the Commissioner to award Rs. 3,780/- to Roshan Lal respondent by way of penalty under section 4-A. The argument proceeds that no notice under section 10-A of the Act was given by the Commissioner to the petitioner to pay the compensation The Commissioner could order payment of penalty under section 4. A of the Act if the compensation had not been paid when it fell due. The compensation would have fallen due if the Commissioner had given a notice to the petitioner for payment of compensation under section 10-A of the Act Reliance has been placed on Khillo Chandramma v. Messrs Hindustan Construction Company Ltd. 1971 Lah. I.C. 135. It has been held in Khillo Chandramma''s case (surpa) that the expression "as soon as it falls due" means within 30 days from the date of service of the notice under sub-section (1) of section 10-A. Roshan Lal met with an accident He lost his arm. His father put in a claim petition. A notice of the claim petition was given to the petitioner. The petitioner did not pay the compensation to Roshan Lal within 30 days and instead contested the claim petition Keeping in view the circumstances of the case it would be reasonable to hold that there was sufficient compliance in terms of section 10-A of the Act and the petitioner having failed to pay the compensation, the Commissioner was justified in imposing penalty in terms of section 4-A of the Act.

The last contention of the learned counsel for the petitioner is that sub section (3) of section 4 A of the Act is ultra vires the Constitution inasmuch as it gives arbitrary and unguided power to the Commissioner in the matter of imposing penalty. This contention is also without merit The scheme of the Act as also its provisions provide sufficient guidelines for exercise of power in the matter of imposing penalty under sub-section (3) of section 4-A of the Act. This provision, therefore, cannot be held to be ultra vires the constitution.

In the result, the writ petition fails and is dismissed with costs. Counsel''s fee Rs. 300/-