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M/S CHAWLA TECHNO CONSTRUCTION CO. LTD. THRU' DIRECTOR & ANR versus STATE OF U.P. THRU' PRINCIPAL SECY. & ORS.

High Court of Judicature at Allahabad

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M/S Chawla Techno Construction Co. Ltd. Thru' Director & Anr v. State Of U.P. Thru' Principal Secy. & Ors. - WRIT - C No. 37491 of 2005 [2006] RD-AH 31 (1 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 52

Civil Misc. Writ Petition No. 37491 of 2005

M/s Chawla Techno Construction Ltd.

and another

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J.

M/s Chawal Techno Constructions Ltd. Has approached this Court questioning the validity of the order passed by respondent no. 2 Workmen's Compensation Commissioner and Assistant Labour Commissioner, Allahabad awarding compensation of tune of Rs. 2,44,008/- (two lacs forty four thousand and eight only) with interest @ 8% from the date of caused accident date 16.08.2002 till the date of payment.

Brief facts of the case giving rise to he instant writ petition is that petitioner is a company registered under the Companies Act and is engaged in building construction. Respondent no. 3 was engaged as Carpenter on 16.08.2002, at the time of collapse of shuttering on account of which Sant lal suffers from serious injuries. Petitioners have contended that purely on humanitarian ground he was admitted in hospital. Petitioner incurred expend of Rs. 4,77,869.00/- towards treatment. Thereafter after improvement of health of  respondent no. 3, he without any information left his work place. It has been contended that thereafter he preferred a claim under the Workmen Compensation Act 1923  before Workman Compensation Commissioner, Allahabad. Petitioners have contended that the said application dated 02.04.2004 being moved, written statement was filed on 22.07.2004 and therein categorical pleas was taken that Workman Compensation Commissioner, Allahabad  has not authority or jurisdiction to entertain the matter. Thereafter impugned order in question has been passed. Against which present writ petition has been filed.

Short counter affidavit has been filed in the present case and it has been contended that  Workman Compensation Commissioner, Allahabad Workman Compensation Commissioner,  Court Allahabad has jurisdiction to entertain the claim of compassionate and further petitioner has statutory remedy to prefer appeal  under Section 30 of the Workman Compensation Act and in order to avoid the deposit payment with the Commissioner, the petitioner has by passed the statutory remedy of filing appeal and has approached this Court.

Short rejoinder affidavit has been filed and therein it has been contended that Workman Compensation Commissioner, Allahabad has no authority or jurisdiction to deal with the matter that alternative remedy of appeal is not absolute bar. Order impugned is without jurisdiction and principles of natural justice has been violated.

After pleading mentioned above have been exchanged present writ petition has been taken up for final disposal with the consent of the parties. Original Record from the Office of Workman Compensation Commissioner, Allahabad has also been summoned and same is before this Court at the point of time when present writ petition has been taken up.

Sri Santosh Kumar Srivastava, Advocate, has assailed the validity of order passed by Workman Compensation Commissioner, Allahabad on the ground that as per Section 21 of Workmen's Compensation Act 1923 the Commissioner has no authority or jurisdiction even to process  without giving notice in the manner prescribed under Central Government to the Commission having jurisdiction over the area and the State Government concerned and in the present case undispeately that place of accident is not at all territorial jurisdiction of Workman Compensation  Commissioner, Allahabad and no notice has been given in the manner prescribed to the Commissioner having jurisdiction over the area and the State Government concerned, as such entire proceedings void and not in consonance and the assumption of jurisdiction is totally unwarranted.

Sri D.K. Srivastava, Advocate on the other hand submitted that Workman Compensation  Commissioner has full authority or jurisdiction to entertain the writ petition and he has rightly entertain the same as petitioner has remedy of appeal and refuse to exercise it discretions in the matter and writ petition is liable to be dismissed.

In order to appreciate respective arguments which has been advanced Section 21 and 30 of the Workmen's Compensation Act 1923 and the Workmen's Compensation (Venue of Proceedings) Rules 1996 are being looked into and has been quoted below:

Section 21:- Venue of proceedings and transfer -(1) where any matter under the Act is to be done by or before a Commissioner the same shall, subject to the provisions of this Act and to any rules made hereunder be done by or before the Commissioner for the area in which-

(a) the accident took place which resulted in the injury or

(b) the workman or in case of his death the dependent claiming the compensation ordinarily resides or

(c ) the employer has his registered office;

provided that no matter shall be processed before or by a Commissioner other than the Commissioner having jurisdiction over the area which is the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned.

Provided further that where the workman, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or a workman in a motor vehicle  or a company, meets with the accident outside India any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship, aircraft or motor vehicle resides or carries on business or the registered office of the company is situate as the case may be.

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

(a) an order 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 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 other 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

A bare perusal of provisions quoted above would go to show that under Section 21 sub Rule (1) has been in corporated in respect of Venue  of the proceedings and transfer  of the proceedings. Section 21 started that where any matter under the Act is to be done by or before a Commissioner the same shall, subject to the provisions of this Act and to any rules made hereunder be done by or before the Commissioner for the area in which (a) accident took place which resulted in the injury or (b) the workman or in case of his death the dependent claiming the compensation ordinarily resides or

(c ) the employer has his registered office. This particular section proviso has been provided that no matter shall be processed before or by a Commissioner other than the Commissioner having jurisdiction over the area which is the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned. Workmen's Compensation (Venue of Proceedings) Rules 1996 Form  and in exercise of power provided under sub section (1) of Section 21 Central Government provides  that an application under Section 19 or Section 21 shall be processed before or by a Commissioner for the area in which accident to take which resulted in injury, the workman or in case of his death the dependent claiming the compensation ordinarily resides or (c ) the employer has his registered office. This particular proviso by providing that no matter shall be possessed before the Commissioner then Commissioner having jurisdiction over the area in which accident took place without his giving notice in Form-A to the Commissioner having jurisdiction over the area and the State Government concerned. Sub-section 3 of Section 21 further provided that Commissioner under sub Section (1)(b) and (c ) may initiate proceedings afresh or he may continue the previous proceedings initiated under Section 21 (1) (a) as if the same or any of its part had been taken before him if he satisfied that the interest of the parties shall not be prejudiced. Thus as per this Rule orderly it is the Commissioner having jurisdiction over the area in which the  accident has take place has the authority to proceed however after giving notice in Form A to the Commissioner having jurisdiction in whose area workmen or the dependent in case death claiming the compensation ordinarily resides or the employer has his registered.

Now touch stone of the provisions quoted above fact of the case is to be seen that undisputed position is that accident has taken place at Delhi and petitioner has no permanent abroad at Delhi and after accident petitioner has shifted his native place at Allahabad and thus, petitioner by all means can be treated as permanent to ordinarily resides in the district Allahabad and has authority to move an application at Allahabad in that even moving of application at Allahabad it self enjoined upon the Commissioner Workmen to send information to the Commissioner of the State having jurisdiction over the area State government concerned namely at Delhi.

In the present case original record has been produced before Workmen Compensation Commissioner and Sri Shaliesh Kumar, Assistant Labour Commissioner was present in the Court and made statement that at no point of time any notice or information on Form A was given to the Commissioner having jurisdiction having over the area and the State Government whereas factual position is clear then net effect of the same is that workmen had no authority or jurisdiction to process the application without giving notice in Form A, Commissioner of the State concerned. Thus process of application itself was fertile exercise and has no consequence  and no action taken pursuant thereto consequences would not be consequent and as Commissioner would lacking territorial jurisdiction  to deal with the matter in term of the provision as contained under proviso of Section 21 of the aforementioned Act and provisions of the Rule 3 of the Rules.

Consequently order passed by workmen Compensation Commissioner is sustainable and same is hereby quashed. However at the stage Sub-section 2 of Rules 30 also necessary to be looked into, inasmuch as, merely distinguishing the interest of party cannot be termed to be defeated. Said rule empowered the Commissioner under Section 21(1)(b) or (c ) may initiate the proceedings afresh or may continue the previous proceedings initiated under Section 21 (1) (a) as if the same or any of its part had been taken before him if he is satisfied that the interest of the  party shall not be prejudiced. Remedy of the authority after giving notice in Form-A to the  Commissioner having jurisdiction over the area and the State  Government concerned  and Commissioner is fully empowered to initiate proceeding from any stage and the only guideline  which is occupied that interest of the party shall not be prejudice.

Now coming the alternative remedy is to be seen. Alternative remedy is to be treated to be absolute power of disposal when order is without jurisdiction and principles of natural justice has not been complied with. Now expenditure proceeding are being seen it has been notice that workmen Compensation Commissioner would have no authority or jurisdiction even process has been taken that any notice on Form A was given to the Commissioner having jurisdiction over the area and the State Government concerned and no notice has been given as such entire process was totally without jurisdiction one it has been held that it has been without jurisdiction and original record has been produced and concerned officer made statement that no notice served then it would be appropriate to relegate the the petitioner of alternative remedy.

Consequently present writ petition succeeds and allowed . However passing of this order will not prevent the Workmen Compensation Commissioner to proceed with the matter after giving notice on Form A.

15.09.2005

Dhruv          


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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