Sh. Jawahar Singh vs Govt. Of Nct Of Delhi
2008 Latest Caselaw 2135 Del

                                              REPORTABLE
*           IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision : December 03, 2008

+                     WP(C) No.6406 of 2007
#     Sh. Jawahar Singh.
                                                          Petitioner
!                  Through : Mr. Pradeep Kumar Arya, Advocate

                                Versus

$     Govt. of NCT of Delhi & ANR.
                                                        Respondents
^                  Through : Mr. Rohit Madan for respondent No. 1
                             Ms. Pratima Chauhan for respondent No.2

                              AND
+                     WP(C) No.16337 of 2006
#     Sh. Jawahar Singh.
                                                          Petitioner
!                  Through : Mr. Pradeep Kumar Arya, Advocate

                                Versus

$     Govt. of NCT of Delhi & ANR.
                                                        Respondents
^                  Through : Mr. Rohit Madan for respondent No. 1
                             Ms. Pratima Chauhan for respondent No.2

                                 AND

+                     WP(C) No.6568 of 2007
#     Sh. Jawahar Singh.
                                                          Petitioner
!                  Through : Mr. Pradeep Kumar Arya, Advocate

                                Versus

$     Govt. of NCT of Delhi & ANR.
                                                        Respondents
^                  Through : Mr. Rohit Madan for respondent No. 1
                             Ms. Pratima Chauhan for respondent No.2




W.P.(C) No.6406/2007                                    Page No.1 of 14
 CORAM :

HON'BLE MR. JUSTICE S.N. AGGARWAL

    1. Whether reporters of Local paper may be allowed to see the
       judgment?
    2. To be referred to the reporter or not?
    3. Whether the judgment should be reported in the Digest?

S.N. Aggarwal, J.

All these three writ petitions are proposed to be decided by

this common judgment because question of facts and law involved

in all of them are identical. In fact they all arise out of three similar

awards of the same date dated 31.03.2006 passed by the

Commissioner under the Workmen's Compensation Act.

2 Briefly stated the facts of the case are that the petitioner is

alleged to be the owner of Brick-Kiln described as Jowar Bhatta. On

09.06.1993, a water tank on his Bhatta got burst in which four ladies

allegedly working on his Bhatta got injured out of whom three

namely Smt. Munni Devi, Smt. Sushila and Ms. Poonam died on the

spot whereas the fourth one namely Smt. Phuli Devi suffered

fracture on her back bone. Sh. Bhaggo, the husband of deceased

Smt. Munni Devi filed a claim under the Workmen's compensation

Act being WCC/9/94 and his said claim was dismissed by Sh. S.K.

Parashar, Commissioner under the Workmen's Compensation Act

vide order dated 26.04.2002 holding that the deceased Smt. Munni

Devi was not in the employment of the petitioner. The husband of

deceased Smt. Sushila and the mother of Ms. Poonam filed two

separate claim applications seeking compensation of Rs.2.5 lac each

with interest @ 12% per annum and the injured Smt. Phuli Devi filed

a claim of Rs.2,11,790/- with interest @ 12% per annum. These

claims were filed by them before the Commissioner under the

Workmen's Compensation Act in January, 2001 after about 8 years

of the incident of 09.06.1993 that took place at the Bhatta.

3 Earlier the above cases of compensation were pending before

the Commissioner under the Workmen's Compensation Act in Tis

Hazari when the entire Delhi had only one Commissioner under the

Workmen's Compensation Act. In the year 2004, the Delhi State was

divided into 9 divisions on area-wise basis for the purpose of the

Workmen's Compensation Act and 9 Commissioners were appointed

under the Workmen's Compensation Act area-wise. The cases for

compensation with regard to the incident that took place at the

petitioner's alleged Bhatta on 09.06.1993 were assigned to the

Court of Workmen's Compensation Commissioner, Hari Nagar Delhi.

Mr. Rajender Dhar, Deputy Labour Commissioner was working as a

Commissioner under the Workmen's Compensation Act at Hari

Nagar area at that time. The proceedings in the compensation cases

went on before him till May, 2005. In May, 2005, Mr. Rajender Dhar

was transferred from Hari Nagar to Ashok Vihar. Mr. Rajender Dhar

started having jurisdiction to work as Commissioner under the

Workmen's Compensation Act for Ashok Vihar area since May, 2005.

However, he brought all the three files in which impugned awards

dated 31.03.2006 have been passed with him from Hari Nagar to

Ashok Vihar and passed the impugned awards dated 31.03.2006

describing himself as Commissioner under the Workmen's

Compensation Act for Hari Nagar area, though at that time, he was

working as Commissioner for Ashok Vihar area.

4 Vide three separate impugned awards all dated 31.03.2006,

Rs.1,05,895/- have been awarded in favour of injured Smt. Phuli

Devi; Rs.90,088/- in favour of husband of deceased Smt. Sushila

Devi and Rs.91,416/- in favour of mother of deceased Ms. Poonam. It

is aggrieved by these three separate awards, the petitioner has filed

these three separate writ petitions seeking to challenge the said

awards inter-alia on the ground of jurisdiction and also on merits.

5 Mr. Pradeep Kumar Arya, learned counsel appearing on behalf

of the petitioner in all these three petitions had argued that the

impugned awards are liable to be set aside by this Court on the

ground of limitation and also for want of jurisdiction of the Officer

who has passed the said awards. Mr. Arya had contended that there

was no relationship of employer and employee between the

deceased/injured workmen and the petitioner. According to him, the

petitioner is a retired employee of Delhi Development Authority and

he never did any business of Bhatta. He has relied upon an earlier

order of the Commissioner under the Workmen's Compensation Act

in the case of Bhaggu Vs. Jawahar Singh (WCD No. 9/94) decided on

22.04.2002 to contend that the claim filed by a similarly situated

person stood already rejected on the ground of failure to prove the

relationship of employer and employee between the parties and

therefore according to him, different view on this aspect could not

have been taken by the Officer who had passed the impugned

awards. Mr. Arya has referred and relied upon the provisions

contained in Sections 10 & 21 of the Workmen's Compensation Act

in support of his arguments on the point of limitation and jurisdiction

of the Officer who has passed the impugned awards.

6 On the other hand, Ms. Pratima Chauhan, learned counsel

appearing on behalf of the workmen/legal representatives had taken

two fold objections to the maintainability of these writ petitions. Her

first contention was that the petitioner cannot be allowed to raise

the objection of limitation for the first time in these writ petitions

because according to her, the objection of limitation was not taken

by him while proceedings were pending before the Commissioner

under the Workmen's Compensation Act. The second contention of

learned counsel appearing on behalf of workmen/legal

representatives was that these writ petitions under Article 226/227

of the Constitution are not maintainable because an equally

efficacious alternative remedy of appeal is provided under Section

30 of the Workmen's Compensation Act and in support of her said

contention, she has relied upon two judgments of the Hon'ble

Supreme Court in Assistant Collector of Central Excise, Chandan

Nagar, West Bengal Vs. Dunlop India Ltd. & Ors. AIR 1985

Supreme Court 330 and in Sadhna Lodh Vs. National Insurance

Company Ltd. & Anr I (2003) ACC 332 (Supreme Court). She has

also relied upon one unreported judgment of Learned Single Judge

of this Court in Bajaj Allianz General Insurance Company Ltd. Vs.

Commissioner, Workmen's Compensation, Government of NCT of

Delhi & Ors (CM Main No.844/2008 decided on 31.10.2008).

7 In view of the above rival arguments advanced by the counsel

for the parties, the first and foremost question that arises for

consideration is about the maintainability of these writ petitions in

view of availability of an alternative remedy of appeal provided in

Section 30 of the Workmen's Compensation Act, 1923. This question

can best be decided by analysing the judgments relied upon by the

counsel for both the parties on this aspect.

8 In Assistant Collector of Central Excise, Chandan Nagar, West

Bengal Vs. Dunlop India Ltd. & Ors. (Supra), it was held by the

Hon'ble Supreme Court as under:-

"Art. 226 is not meant to short circuit or circumvent statutory proceedings. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it hat recourse may be had to Art. 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions under Art 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice needs to be strongly discouraged."

9 In Sadhna Lodh Vs. National Insurance Company Ltd. & Anr

(Supra), it was held by the Hon'ble Supreme Court as under:-

"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court of Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as in Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re- weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision."

10 In Bajaj Allianz General Insurance Company Ltd. Vs.

Commissioner, Workmen's Compensation, Government of NCT of

Delhi & Ors' case, this Court relying upon a judgment of the Madras

High Court in Management of Bhavanji Mills Vs. Deputy

Commissioner of Labour 2002 (92) FLR 817 has held as under:-

"An order of Commissioner under Workmen's Compensation Act is an appealable order under Section 30 of the Act and an appeal lies to the High Court from the orders of the Commissioner awarding compensation whether lumpsum or by way of redemption or a half monthly payment or otherwise. When the Act provides remedy of appeal against the order of the Commissioner, I consider preferring of a Writ Petition under Article 226/227 was not open to the petitioner. The petitioner should have preferred an appeal. The Act provides for certain limitations and conditions for preferring an appeal and a party preferring appeal is supposed to comply with those conditions like deposit of the entire compensation amount. I therefore consider that in order to avoid the conditions as mentioned in the Section 30, if a party prefers Writ Petition either under Article 226 or Article 227, the Court should not entertain such a Writ Petition.

11 In State of Tripura Vs. Manoranjan Chakraborty & Ors (2001)

10 SCC 740 it was held by a three Judges Bench of Hon'ble Supreme

Court that even where alternative remedy of appeal is provided in

Statute, still a writ court can in appropriate case exercise its

jurisdiction to do substantive justice. It was further held that

normally the provisions of the Act would have to be complied with

but the availability of the writ jurisdiction should dispel any doubt

which a citizen has against a high-handed or palpable illegal order

which may be passed by the assessing authority. Similarly in

Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai &

Ors AIR 1999 Supreme Court 22, it was held by the Supreme Court

that the availability of alternative remedy does not affect the

jurisdiction of the High Court, specially in a case where the authority

against whom the writ is filed is shown to have had no jurisdiction or

had purported to usurp jurisdiction without any legal foundation.

12 On giving my anxious consideration to the above mentioned

judgments on the aspect of alternative remedy, I am of the view

that normally when an alternative remedy of appeal is provided by

the Statute, the writ petition under Articles 226 & 227 of the

Constitution should not be entertained by the High court but there is

no such bar in entertaining the such writ petition if it is shown that

the order challenged in the writ petition is without jurisdiction and is

likely to cause injustice to one or the other party on the facts of a

given case. I am of the view that each case has to be examined by

the Court on its own facts and no hard and fast straight jacket

formula can be laid down on the maintainability of a writ petition

when an alternative remedy of appeal is provided by the Statute.

13 The judgments on the point of alternative remedy relied upon

by the counsel for the workmen/ legal representatives are not

applicable to the facts of the present case because in my view, the

impugned awards under the Workmen's Compensation Act, 1923

assailed in these petitions are vitiated for want of jurisdiction of the

officer who had passed these awards.

14 Section 10 of the Workmen's Compensation Act, 1923

prescribes a limitation of two years for filing a claim to be reckoned

from the date of the accident or the date of death. However, in

terms of proviso to Section 10 (1), a discretion has been given to the

Commissioner under the Workmen's Compensation Act to entertain

and decide any claim for compensation even after expiry of two

years limitation provided sufficient cause is shown for such delay.

15 On a plain reading of Section 10 (1) and last proviso thereto, it

is clear that the claims could have been entertained by the

Commissioner under the Workmen's Compensation Act only within

two years of death and the delay could have been condoned only on

showing sufficient cause for such delay. In the present case, the

accident admittedly took place on 09.06.1993 and the claims in all

these three cases which are under consideration were filed in

January, 2001. The claims were filed after about 8 years of the

accident. The claim applications have been annexed with the writ

petitions and the same have been perused by me. There is not even

a whisper in any of the three claim applications as to why the claim

was filed after 8 years of the accident. Even the Commissioner

under the Workmen's Compensation Act who has passed the

impugned awards has not at all dealt with the question of limitation

or the reason for entertaining the claim after expiry of prescribed

period of limitation of two years. I do not find any substance in the

argument of the counsel for the respondents (workmen) that the

petitioner cannot be allowed to take the objection of limitation for

the first time in these writ petitions because the objection of

limitation was not taken by him in reply to the claim applications. I

am of the view that the objection of limitation is an objection which

goes to the root of the matter as it relates to jurisdiction of the

Commissioner to entertain the claim beyond the prescribed period

of limitation in the Statute. In the opinion of this Court, the objection

of limitation can be raised by a party at any stage of legal

proceedings, in case such objection can be decided on the basis of

material already available on record. Reliance in support of this view

is placed on a three Judges Bench judgment of the Supreme Court in

Management of State Bank of Hyderabad Vs. Vasudev Anant

Bhide Etc. 1969 (2) SCC 491. Admittedly in the present case, the

claims were filed before the Commissioner under the Workmen's

Compensation Act after expiry of limitation of two years described in

Section 10(1) of the Act and therefore the Commissioner could not

have entertained the claim filed before him after expiry of limitation

period.

16 Now coming to the jurisdiction or the authority of the Officer

who has passed the impugned awards dated 31.03.2006, it may be

noted that the said awards have been passed by Mr. Rejender Dhar

describing himself as Commissioner under the Workmen's

Compensation Act for Hari Nagar area whereas in fact he on the

date of the impugned awards was working as Commissioner for

Ashok Vihar area at that point of time. Whether Mr. Rajender Dhar

who has passed the impugned awards acted within the parameters

of his authority conferred on him under the provisions contained in

the Workmen's Compensation Act, 1923 and Rules framed

thereunder? It shall be necessary to have a quick look to the

statutory provisions on this aspect of the matter.

17 Section 21 deals with the venue of proceedings and transfer of

claim from one Commissioner to another Commissioner. Section

21(1) of the Act which is relevant is extracted below:-

"(1) Where any matter under this 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 or by a Commissioner, other than the Commissioner having jurisdiction over the area in which 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."

18 Rule 22 of the Workmen's Compensation Rules, 1924 is also

relevant and the same is also extracted below:-

"22. Application presented to wrong Commissioner:- (1) if it appears to the Commissioner on receiving application that it should be presented to another Commissioner he shall return it to the applicant after endorsing upon it the date of the presentation and return, the reason for returning it and designation of the Commissioner to whom it should be presented.

(2) If it appears to the Commissioner at any subsequent stage that an application should have been presented to another Commissioner, he shall send the application to the Commissioner empowered to deal with it an shall inform the applicant (and the opposite party, if he has received a copy of the application under rule (26), accordingly.

(3) The Commissioner to whom an application is transferred under sub-rule (2) may continue the proceedings as if the previous proceedings or any part of them had been taken before him, if he is satisfied that the interests of the parties will not thereby be prejudiced."

19 Prior to 2004, the Delhi state was one composite unit and had

only one Commissioner under the Workmen's Compensation Act,

1923. In 2004, Delhi was divided into 9 districts on area-wise basis.

The accident on account of which the claims in the present cases

were filed had taken place on 09.06.1993. The accident admittedly

took place in the area of Hari Nagar. Up to May, 2005, the cases out

of which the impugned awards have arisen were pending before the

Commissioner under the Workmen's Compensation Act of Hari

Nagar area and thereafter the Commissioner (Mr. Rajender Dhar)

was transferred from Hari Nagar to Ashok Vihar area and this

transfer took place in May, 2005. The impugned awards have been

passed by Mr. Rajender Dhar after about 8-9 months of his transfer

from Hari Nagar to Ashok Vihar area purporting to exercise the

powers of Commissioner for Hari Nagar area. This was not

permissible in view of statutory mandate contained in Section 21 (1)

read with Rule 22 extracted above. It is quite evident that the

Officer who has passed the impugned awards had no jurisdiction or

authority to deal with the claim cases arising out of accident that

took place in Hari Nagar area. For that reason, I have no hesitation

in holding that the officer who has passed the impugned awards did

not act within the parameters of authority conferred on him under

the law.

20 Since the impugned awards are vitiated for want of jurisdiction

and also on the ground of limitation, I need not go into the

contentions advanced by the counsel for the parties on merit of the

claims. In my opinion, the dismissal of these writ petitions on the

ground of availability of alternative remedy of statutory appeal is

likely to cause gross injustice to the petitioner. The impugned

awards passed by the officer under the Workmen's Compensation

Act by no means are maintainable in law and are, therefore, set

aside.

21 In view of the above, all these three writ petitions are allowed.

The impugned awards dated 31.03.2006 are hereby set aside. These

writ petitions stand disposed of accordingly leaving the parties to

bear their own costs.

22 The petitioner has deposited the amount as per impugned

awards in the Registry of this Court pursuant to orders passed by

this Court on 31.08.2007. The Registry is directed to return the said

amount to the petitioner after 8 weeks from today.

S.N. AGGARWAL JUDGE DECEMBER 03, 2008 a