Abdul Rashid Sheikh vs Ut Of J&K And Others
2021 Latest Caselaw 1239 j&K

                                                                 Sr. No. 84
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
CJ Court
Case: LPA No. 100 of 2021
     Abdul Rashid Sheikh                            ...Petitioner(s)/Appellant(s)

                                  Through: Ms. Sabeena Naveed, Advocate.

                                   V/s

     UT of J&K and others                                      .... Respondent(s)

                                  Through:


         CORAM:
         HON'BLE THE CHIEF JUSTICE
         HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                     ORDER

1. Heard Ms. Sabeena Naveed, learned counsel for the appellant.

2. The appellant has preferred this LPA against the judgment and order

passed by the learned Single Judge dated 09.09.2021 by which the

appellant's writ petition OWP No.279/2018 has been dismissed on the

ground of alternate remedy.

3. The appellant had challenged the award dated 28.05.2016 passed by

the Court of Commissioner Employees' Compensation Act (Assistant

Labour Commissioner) Ramban.

4. The learned Single Judge held that the aforesaid award can be

assailed by filing an appeal under Section 30 of the Employees'

Compensation Act and since the appellant has not exhausted the said

remedy, it is not a fit case to be entertained in exercise of extra-ordinary

jurisdiction.

5. The submission of Ms. Sabeena Naveed, learned counsel for the

appellant is that since the award was patently without jurisdiction, the writ petition was not liable to be dismissed on the ground of alternate remedy.

She submits that as the accident had taken place at Srinagar and the claim

petition for compensation was entertained at Ramban, it was incumbent

upon the Authority to have given notice to the Commissioner, Srinagar

before proceeding ahead on merits of the claim petition. She submits that no

such notice was issued before making the award.

6. The impugned award has been passed by a competent authority. It

would have been without jurisdiction had it been passed by some other

authority not competent to take cognizance of the matter or if it had been

passed by the competent authority of some other area other than the place of

accident or the place of ordinary residence of the claimant which is not the

case.

7. The only contention is that the procedure of giving notice to the

Commissioner in whose area the accident had taken place was not followed.

It is not a jurisdictional error. The non compliance of the procedural aspect

can be taken as a ground in appeal under Section 30 of the Act. In such

circumstances, we are of the opinion that the Writ Court has not committed

any error of law in dismissing the petition on the ground of alternate remedy.

8. It may be noted that though ordinarily in cases where the orders are

passed without jurisdiction, the writ petition may be entertained but that is

not an absolute Rule and the Court may at its discretion refuse to exercise its

extraordinary jurisdiction where the statutory remedy of appeal is available.

9. In these circumstances, we find no merit in the appeal and the same

is dismissed.

                      (RAJNESH OSWAL)                  (PANKAJ MITHAL)
                                JUDGE                    CHIEF JUSTICE
Jammu
05.10.2021
Raj Kumar