Union Of India vs Sonam Namgyal
2021 Latest Caselaw 1494 j&K/2

                                                   S. No. 3
                                                   After Notice Matter



HIGH COURT OF JAMMU &KASHMIR AND LADAKH
               AT SRINAGAR
                                                           MA No. 52/2014


Union of India                                    ...Petitioner/Appellant(s)


                       Through:      Mr. Nazir Ahmad Bhat, CGSC
V/s



Sonam Namgyal                                            ..... Respondent(s)


                       Through:      Mr. M. Amin Tibitbaqal, Advocate.
CORAM:
            HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.

                                 ORDER

24.11.2021

1. Through the medium of the instant appeal award dated 12.12.2012,

passed by Commissioner under Workman's Compensat "Sonam

Namgyal V.s Commanding Officer, 2 Bn BSF and ors." is being

questioned under and in terms of Section 30 of the Act.

2. The award is being challenged inter alia on the grounds that the claim

petition had been filed after a gap of 15 years without any valid

ground or reason and that the appellants never aware about the

pendency of the petition before the Commissioner and had not

received any notice up to 10.01.2013, and that received a

communication dated 18.12.2012, from the Court about the ex parte

award to be deposited before the learned Court.

3. It is being stated that the claimant-respondent no.1 suppressed facts

before Commissioner and that notice issued in case did not reach to the appellants and that there has been no relationship of employee and

employer between the claimant and the appellants herein and that the

award has been passed without any jurisdiction on flimsy grounds

against established procedure of law and legal position.

4. It is being further stated that the award has been passed in ex-parte

without providing an opportunity of hearing to the appellants.

5. Before adverting to the grounds of challenge urged in the instant

appeal, a brief reference to the relevant provision of Section 30 of the

Employees Compensation Act, becomes imperative and same is

reproduced hereunder:-

Appeals- 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;

(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 a deceased employee 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;

(e) An order refusing to register a memorandum of agreement or

registering the same or providing for the registration of the same

subject to conditions

6. As appears from above under section 30 of the Act, an appeal is

provided to lie before High Court from an order of the Commissioner awarding compensation, and the interest or penalty under section 4(a).

First Proviso appended to section 30, however, inter alia provides that

no appeal shall lie against any order unless a substantial question of

law is involved in the appeal.

7. Third Proviso appended to section 30 further provides 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.

8. Heard learned counsel for the parties and perused the record.

9. Mr. Nazir Ahmad, appearing counsel for the appellants while making

his submission would reiterate the contentions raised and grounds

urged in the memo of appeal and would pray for setting aside of the

impugned award.

10.Per Contra Mr. M. Amin, appearing counsel for the respondent no.1

would controvert the contentions raised and grounds urged by the

appearing counsel for the appellants.

11.Mr. Amin would also raise a preliminary objection about the

maintainability of the appeal, first being that no substantial question of

law has been either stated in the appeal nor any substantial question of

law is involved in the appeal and secondly that the appellants have not

deposited the mandatory deposit envisaged under third proviso of the

section 30 of the Act.

12.Perusal of the record in general and memo of appeal in particular

tends to show that the appellant has not suggested involvement any

substantial question of law in the appeal. However, the fundamental

grounds urged in the appeal is alleged non-issuance of notice and non- providing of an opportunity of hearing to the appellants by the

Commissioner.

13.Perusal of the record reveals that initially in response to a notice

issued to the respondents-appellants herein one N.B. Sobidar to 8 JET

attended the Court/Commissioner and record further tends to show

that in place of 8 JAK notice had been issued to 8 JAT for 28th June,

2011.

14.On the date fixed for appearance in terms of notice issued, none

appeared for the petitioner and respondents herein before the

Commissioner and accordingly the claim petition came to be

dismissed on 27.11.2011 and thereafter was restored.

15.Record further reveals that on 04.02.2012, none had appeared for the

parties. On 28.04.2012 counsel for both the parties have appeared

before the Commissioner, however, on 15.05.2012 for the

respondents/appellants herein.

16.The contentions of the counsel for the appellants that no notice was

issued to the appellants herein by the Commissioner and that they

were not provided any opportunity to contest the claim petition is

found factually incorrect.

17.So far as the preliminary objections raised by the counsel for the

respondents is concerned about the maintainability of the appeal, as

noted above perusal of the memo of appeal reveals that no question

much less a substantial question of law has been stated. It is not

anywhere contended or pleaded in the memo of appeal that any

substantial question of law is involved therein which requires

determination under section 30 of the Act.

18.Insofar as second preliminary objection raised by the counsel for the

respondents is concerned, perusal of the record reveals that admittedly

the mandatory deposit provided in terms of third proviso appended to

section 30 has not been complied with. However, learned counsel for

the appellant would contend that in terms of order dated 07.05.2014,

upon laying a motion, this Court allowed the appellant to deposit the

award amount before the Registry of this Court and consequently the

same stands deposited and as such , same amounts substantial

compliance of third proviso appended to section 30.

19.Mr. A. Amin, counsel for the respondents however would controvert,

the said contentions of the counsel for the appellant and invited the

attention of this Court to the judgment passed by a Coordinate Bench

of this Court in case titled as "United India Insurance Company

Limited Vs. Sushma Devi & Ors. reported in 2012 ACJ 494",

whereunder it has been in explicit terms held that non-compliance of

mandatory deposit in terms of third proviso appended to section 30 is

not the compliance of the same even though an alternate deposit is

made by a cheque or a certificate. An appeal filed without mandatory

deposit envisages under third proviso of section 30 has been held in

the aforesaid judgment to be not maintainable.

20.The submission of learned counsel for the respondents in the light of

the judgment supra has substance and squarely supports the

preliminary objections so raised.

21.Viewed thus what has been observed, considered and analyzed

hereinabove, the appeal is held not maintainable and is accordingly

dismissed. The award amount deposited and lying with the Registry of

this Court is directed to be released in favour of the respondents along with interest that might have accrued there upon strictly upon

identification and verification of claimants/respondents by their

counsel.

Dismissed along with connected CM(s).

(JAVED IQBALWANI) JUDGE SRINAGAR 24.11.2021 "Nuzhat"

NUZHAT SHAFI 2021.11.29 13:03 I attest to the accuracy and integrity of this document