Shri Rakesh Mahendru vs Labour Commissioner (West) And ...
2009 Latest Caselaw 4339 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    W.P.(C.) No. 10289/2009 & CM No. 10514/2009

                            Judgment Reserved on: 21.10.2009

%                           Judgment Delivered on: 27.10.2009


# SHRI RAKESH MAHENDRU                                              ..... Petitioner

!                           Through:          Mr. Rajneesh Sharma, Advocate.

                                         Versus

$ LABOUR COMMISSIONER (WEST) AND OTHERS                           ....Respondents

^ Through: Mr. Rajeev Sharma, Advocate for respondent No. 1, Ms. Harsh Lata for respondent no. 2 and Ms. Pratima Chaudhary for respondent no.3.

CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

S.N.AGGARWAL, J

The respondent no. 3 is the widow of late workman Triloki Yadav

who died in an accident on 28.01.2007 in the course of his employment

while he was employed with the petitioner Shri Rakesh Mahendru.

2. The Commissioner, Workmen's Compensation, under the

Workmen's Compensation Act, 1923, vide order dated 23.01.2008 passed

an award of compensation in favour of respondent no. 3 and thereby

awarded her a sum of Rs.3,32,580/- and Rs.2500/- towards funeral

expenses. The compensation awarded by the Commissioner, Workmen's

Compensation, was deposited by the Insurance Company (respondent no.

2 herein) on 29.01.2008 and the same was disbursed amongst the legal

heirs of the deceased workman vide order of Commissioner, Workmen's

Compensation, dated 11.02.2008. Thereafter, on 12.03.2008, the widow

of deceased workman (respondent no. 3) had moved an application

under Section 4-A readwith Section 22(A) of the Workmen's

Compensation Act, 1923 for award of interest and penalty because of

default on the part of the employer in depositing the compensation

amount within one month of the date of the accident. The Commissioner,

Workmen's Compensation, (respondent no. 1) disposed of the said

application of respondent no. 3 vide his order dated 28.04.2009 and

awarded interest @ 12% per annum on the compensation amount of

Rs.3,32,580/- for the period of delay, i.e., for the period from 27.02.2007

till the date of deposit of compensation amount on 29.01.2008 which was

quantified at Rs.36,584/-. The respondent no. 1 also awarded penalty

against the petitioner @ 50% of the principal amount which was

quantified at Rs.1,66,290/-. The interest awarded vide order dated

28.04.2009 was ordered to be paid by the Insurance Company

(respondent no. 2) and the penalty amount was ordered to be paid by the

employer (petitioner herein). It is aggrieved by this order of the

Commissioner, Workmen's Compensation, that the petitioner has filed

the present writ petition seeking setting aside of the award of penalty

and interest inter alia on the ground that since the amount of

compensation adjudicated by the Commissioner, Workmen's

Compensation, vide order dated 23.01.2008 was promptly deposited by

the Insurance Company within five days of the adjudication on

29.01.2008, the interest and penalty under Section 4-A readwith Section

22 of the Workmen's Compensation Act, 1923 could not have been

awarded by the Commissioner.

3. The operation of the impugned award was stayed by this Court vide

its order dated 22.07.2009 and notice was ordered to be sent to the

respondents. In response to the notice of this writ petition, an application

for vacation of the interim ex parte stay order dated 22.07.2009 being

CM No. 10154/2009 has been filed by respondent no. 3. In the course of

hearing on this application of respondent no. 3, counsel for both the

parties had agreed that the writ petition may be heard and disposed of

finally at this stage itself. I, therefore, heard the counsel for both the

parties in the matter.

4. Ms. Pratima Chaudhary, learned counsel appearing on behalf of

respondent no. 3 had raised a preliminary objection to the maintainability

of the present writ petition. It was contended by her that since a

statutory remedy of appeal against the impugned order is provided in

Section 30 of the Workmen's Compensation Act, 1923, the petitioner

could not have filed the present writ petition by-passing the statutory

remedy which mandates him to deposit the impugned award amount as a

condition precedent for filing of the appeal.

5. Ms. Pratima Chaudhary had relied upon a Division Bench judgment

of this Court in Smt. Phuli Devi Versus Shri Jawahar Singh and Others,

[LPA No. 54/2009, Decided on 17.03.2009] in support of her argument

against the maintainability of the present writ petition. Mr. Rajneesh

Sharma, counsel appearing on behalf of the petitioner had no answer to

the objection against the maintainability urged on behalf of respondent

no. 3. The learned counsel appearing on behalf of the petitioner had

simply contended that the writ Court has ample powers and can entertain

a writ petition even if statutory remedy of appeal is not availed by the

petitioner.

6. I have given my anxious consideration to the above rival arguments

advanced by counsel for the parties on the maintainability of the present

writ petition but on giving my thoughtful consideration to the same, I

have not been able to persuade myself to agree with the submissions

made on behalf of the petitioner. It was not disputed by counsel

appearing on behalf of the petitioner that there was a statutory remedy

of appeal available to the petitioner against the order of the

Commissioner, Workmen's Compensation, impugned in the present writ

petition. Section 30 of the Workmen's Compensation Act, 1923 is

relevant and is extracted below :-

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

(a) an order as 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 dependents of a deceased 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 order refusing      to register a
                            memorandum of agreement registering
                            the     same    or providing for the
                            registration of the same subject to
                            conditions :

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees :

Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:

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 him the amount payable under the order appealed against.

(2) The period of limitation for an appeal under this Section shall be sixty days.

(3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963) shall be applicable to appeals under this Section."

7. A plain reading of the above statutory provisions makes it

abundantly clear that the order of the Commissioner awarding penalty

and interest could have been challenged by the petitioner only by way of

appeal in case the challenge against the said order involved a substantial

question of law. The petitioner was also required to deposit the

impugned award amount of interest and penalty as a condition precedent

for filing of the appeal. It seems that the petitioner has filed the present

writ petition in complete disregard of the statutory provisions for appeal

contained in Section 30 of the Workmen's Compensation Act, 1923 to

avoid its liability to deposit the impugned award amount as provided in

Section 30 of the Act. A Division Bench of this Court in Smt. Phuli Devi's

Case (supra) has observed as under :-

"Lastly, we feel that the writ petitions should not have been entertained in view of the statutory appeal provided under Section 30 of the Act. (see Rainbow Industries Versus Regional Director, E.S.I. Corporation, reported in (2001) 4 BOMLR 298, Executive Engineer Versus R.C.P. Rukman, reported in 1979 ACJ 73, M/s. Chowgule & Co. Pvt. Ltd. Versus Commissioner of Workmen's Compensation, 1970 Lab. I.C. 502 (Vol. 3 C.N. 119)

and K.L. Rathee Versus Municipal Corporation of Delhi reported in AIR 1995 Delhi 226. The said appeal can be filed on substantial question of law and cannot be entertained unless the memorandum of appeal is accompanied by the certificate issued by the Commissioner to the effect that the appellant has deposited the amount payable under the order appealed against. We do not think writ petitions should have been entertained when statutory right to appeal has been provided but restricted to only substantial question of law and that to on the condition that the appellant should have deposited the compensation awarded by the Commissioner. Lastly, appeal has to be filed within a period of six days."

8. This Court is bound by the decision of the Division Bench referred

above. Since an equally efficacious alternative remedy of statutory

appeal against the impugned order is available to the petitioner, the

present writ petition is not maintainable and is liable to be dismissed on

this ground.

9. In view of the foregoing, this writ petition is dismissed as not

maintainable. CM No. 10154/2009 filed by respondent no. 3 for vacation

of ex parte stay is allowed. The stay order dated 22.07.2009 is vacated.

The parties are left to bear their own costs.

October 27, 2009                                  S.N.AGGARWAL
ma                                                    [JUDGE]