Madhukar S/O Kothiram Game And Anr vs The Managing Director Ankur Seeds ...
2021 Latest Caselaw 14970 Bom

216-LPA-29-13                                                                       1/7


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

                    LETTERS PATENT APPEAL NO.29 OF 2013
                                    WITH
            CROSS OBJECTION ST. NOS.4657 OF 2013 AND 10453 OF 2013
                                      IN
                       WRIT PETITION NO.3705 OF 2012



1. Madhukar s/o Kothiram Game,
   Aged aabout 73 years,
   Occ. Nil

2. Vithabai w/o Madhukar Game,
   Aged about 67 years, Occ. Nil
   Both residents of Ward No.2,
   Post Kelwad, Tah. Saoner,
   Dist. Nagpur                                         ... Appellants

-vs-

The Managing Director,
Ankur Seeds Private Ltd.
New Cotton Market Layout,
Nagpur                                                  ... Respondent


Shri Vishal Anand, Advocate for appellants.
Shri J. L. Bhoot, Advocate for respondent.

                 CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.

DATE : October 13, 2021

Oral Judgment : (Per : A. S. Chandurkar, J.)

The question that arises for consideration in this Letters Patent

Appeal is whether an appeal under Section 30(1)(a) of the Employees

Compensation Act, 1923 would lie against rejection of the claim for

compensation on the ground that such claim is barred by limitation ?

216-LPA-29-13 2/7

2. The appellants initiated proceedings under Section 22 of the

Employees Compensation Act, 1923 (for short, the Act of 1923) seeking

compensation on account of the demise of their son in an accident while he

was proceeding for duty at the respondent-Firm. These proceedings were

filed on 25/08/2009 and the respondent opposed the aforesaid proceedings

principally on the ground that same were barred by limitation as they were

filed beyond the prescribed period of two years. The learned Commissioner

recorded a finding that the accident in question had occurred on

07/06/2004, notice was issued by the appellants on 29/07/2009 and the

claim for compensation under Section 22 of the Act of 1923 was filed on

25/08/2009. The proceedings were thus barred by limitation as prescribed

by Section 10 of the Act of 1923. Incidentally the learned Commissioner also

recorded findings on the evidence led by the parties that the appellants

were dependent on the deceased and further that the accident in question

arose out of and during the course of employment. In view of the finding

that the proceedings were filed beyond limitation, the application for grant of

compensation came to be dismissed by the learned Commissioner on

13/10/2011.

3. The appellants filed writ petition under Articles 226 and 227 of

the Constitution of India for challenging the aforesaid order. The learned

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Single Judge by order dated 20/10/2012 held that since the claim for

compensation was disallowed, an appeal under Section 30(1)(c) of the Act of

1923 would be maintainable. On that ground the writ petition came to be

dismissed. Being aggrieved the appellants have filed the present Letters

Patent Appeal under Clause 15 of the Letters Patent.

4. Shri Vishal Anand, learned counsel for the appellants submits that

since there has been no adjudication on merits of the claim for compensation

as filed under Section 22 of the Act of 1923, no appeal would be

maintainable under Section 30(1) of the Act of 1923. According to him since

the application was dismissed on the ground of bar of limitation, no

substantial question of law as contemplated by Section 30(1) would arise for

adjudication. Hence the only remedy available was of filing a writ petition

and the same ought to have been entertained on merits. To substantiate this

contention the learned counsel placed reliance on the decision in Golla

Rajanna and ors. vs. Divisonal Manager and anr. (2017) 1 SCC 45 . It was thus

submitted that the writ petition ought to be restored and heard on merits.

5. Per contra, Shri J. L. Bhoot, learned counsel for the respondent

supported the order passed by the learned Single Judge. According to him

however an appeal would lie under Section 30(1)(a) of the Act of 1923 since

the claim for compensation was disallowed. No case was made out by the

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appellants for preferring the writ petition despite availability of an alternate

remedy of statutory appeal under Section 30(1) of the Act of 1923. He also

referred to the cross-objection filed by the respondent by which the findings

recorded by the learned Commissioner in the proceedings were sought to be

challenged. In support of his submissions learned counsel has placed

reliance on the decisions in Chandrashekhar Azad vs. Workmen Compensation

Commissioner 2002 (94) FLR 1227, General Manager BCCL vs. Amit Mahato 2002

(95) FLR 482 and Oriental Insurance Vs. Daivshala 2012 (2) Mh.L.J. 813 . He

therefore submitted that there was no reason to interfere with the order

passed by the learned Single Judge.

6. We have heard the learned counsel for the parties and we have

given due consideration to their submissions. It is not in dispute that the

application for compensation filed by the appellants under Section 22 of the

Act of 1923 came to be dismissed on the ground that the same was filed

beyond the period of limitation. Though the learned Commissioner answered

other issues as framed, in view of the finding that the application was filed

beyond the period of limitation, no relief was granted to the appellants. In

other words the claim for compensation was disallowed in its entirety. The

provisions of Section 30(1)(a) of the Act of 1923 which are found relevant

read as under :

" Section 30. Appeals (1) An appeal shall lie to the High Court

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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."

Perusal of the said provision indicates that amongst other things if

a claim is disallowed in full, an appeal would lie from the order passed by the

Commissioner. Disallowing the claim in full could be for various reasons

including the reason of the proceedings being filed beyond limitation or

failure on the part of the claimant to prove his case on merits. The effect in

both situations would be that the Commissioner would be disallowing the

claim in full. In this regard we may refer to the decision of the Nagpur High

Court in Mt. Bhagwati and anr. vs. G.I.P. Railway AIR 1939 Nagpur 106. The

claim for compensation under the Act of 1923 came to be rejected on the

ground that it was not made within the prescribed period. An appeal was

filed under Section 30(1)(a) of the Act of 1923 wherein the respondent

urged that the order passed by the Commissioner was not appealable.

Considering said contention it was held by Niyogi, J. as under :

" It is urged for the respondent that the Commissioner's order is not appealable. Reference is made to Abdul Rahman and Co. vs. Narayan Fitter 16 NLJ 63. All that is laid down there is that under Section 30 of the Act no appeal lies unless a substantial question of law involves. Since the claim has been disallowed in full, the claimant is entitled to appeal under Section 30(1)(a) and it cannot be disputed that the appeal involves a substantial question of law. The result is that the appeal succeeds with costs. The case will now go back to the

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Commissioner (District Judge, Jubbulpore) for enquiry into merits."

We are in respectful agreement with the aforesaid observations.

It is thus clear that even in a case where the proceedings are

dismissed on the ground of limitation, it results in the claim being

disallowed in full. In such contingency therefore appeal under Section 30(1)

(a) of the Act of 1923 would be maintainable. The writ petition was

therefore rightly not entertained.

7. Insofar as the contention raised on behalf of the appellants that

when the claim is disallowed as being barred by limitation no substantial

question of law would arise is concerned, the same cannot be accepted.

Whether the rejection of the claim as being barred by limitation is correct or

otherwise, would normally give rise to a substantial question of law.

Needless to state that this aspect would depend on the facts of the case.

Though it is urged by the learned counsel for the appellants that this Court

should consider the challenge to the order passed by the Commissioner on its

merits, in view of the fact that a statutory remedy is available to the

appellants we are not inclined to entertain that request. Similarly, the

grounds raise in the Cross-Objections can also be raised in the appeal, if filed.

Since the decisions relied upon pertain to the merits of the case, we have not

examined the same. Accordingly it is held that the appellants have remedy

of preferring an appeal under Section 30(1)(a) of the Act of 1923 and not

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under Section 30(1)(c) of the Act as held by the learned Single Judge.

8. As a sequel to the aforesaid discussion the following order is

passed :

(a) It is held that against the order passed by the learned

Commissioner rejecting the claim for compensation as being

barred by limitation, appeal under Section 30(1)(a) of the Act of

1923 is maintainable.

(b) The appellants are at liberty to challenge the order dated

13/10/2011 passed in WCA No.C-51/2009 by preferring appeal

as stated above. If such appeal is filed, the period from

10/05/2012 when the writ petition was filed till today shall be

taken into consideration as the period spent in prosecuting these

proceedings as contemplated by the provisions of Section 14 of

the Limitation Act, 1963.

(c) It is clarified that we have not examined the order passed by the

Commissioner on merits and all points raised in appeal as well as

cross-objections are kept open.

The Letters Patent Appeal and Cross-Objections are accordingly

disposed of in aforesaid terms with no order as to costs.

                                  JUDGE                       JUDGE


Asmita