Manager, Borsapori Tea Estate Vs. Addl. Deputy Commissioner and anr. - Court Judgment

Excerpt:
- khanna, c.j. 1. the present appeal has been filed against the judgment of the learned single judge dated january 28, 1994 dismissing the civil rule no. 3832 of 1991 filed by petitioner/appellant challenging the order of the workmen's compensation commissioner in case no. 12/89-90.2. we have heard mr. p.g. baruah, learned counsel appearing for the petitioner/appellant and mr. d.p. chaliha, learned counsel appearing for the contesting respondent. after hearing the learned counsel for the parties the present appeal is being finally disposed of.3. the brief facts for adjudicating the present appeal are that the respondent-2 sri bardan chandra borkotoki who was admittedly an employee of the petitioner/appellant's tea estate met with an accident while working in the factory of the.....

Judgment:

Khanna, C.J.

1. The present appeal has been filed against the judgment of the learned single Judge dated January 28, 1994 dismissing the Civil Rule No. 3832 of 1991 filed by petitioner/appellant challenging the order of the Workmen's Compensation Commissioner in Case No. 12/89-90.

2. We have heard Mr. P.G. Baruah, learned counsel appearing for the petitioner/appellant and Mr. D.P. Chaliha, learned counsel appearing for the contesting respondent. After hearing the learned counsel for the parties the present appeal is being finally disposed of.

3. The brief facts for adjudicating the present appeal are that the respondent-2 Sri Bardan Chandra Borkotoki who was admittedly an employee of the petitioner/appellant's Tea Estate met with an accident while working in the factory of the petitioner/appellant on March 15, 1986 and fractured his left patella which was removed subsequently. A claim was raised by the aforesaid respondent before the Workmen's Compensation Commissioner which was registered as Workmen's Compensation Case No. 12/89-90. The Addl. Deputy Commissioner of Workmen's Compensation Commission, Golaghat gave the following relief on the claim made by the respondent-workman.

'It is , therefore, ordered that the claimant be paid by the opposite party, the full average pay from the date of his forced retirement i.e. December 1, 1986 till he attains the age of 58 years as compensation forthwith. The period of his treatment should be regularised by, granting medical leave for prolonged treatment of his injury arising out of the accident under sick benefit scheme and medical leave be paid for the period as per rules.'

4. The learned single Judge has negatived the claim of the petitioner/appellant on the ground that it has an alternative remedy for filing statutory appeal under the Workmen's Compensation Act and that there is no illegality and/or infirmity in the order award given by the Addl. Deputy Commissioner of Workmen's Compensation Commission, Golaghat dated March 25, 1991 and therefore no interference is called for from the Court under Article 226 of the Constitution of India.

5. Mr. Baruah, learned counsel appearing for the petitioner/appellant urged before us that the Addl. Deputy Commissioner under the impugned order dated March 25, 1991 had exceeded the jurisdiction conferred under the Workmen's Compensation Act inasmuch as he could only adjudicate the question as to what amount the claimant workman was entitled to because of the accident in accordance with the prescribed Schedule and could not have adjudicated on the question of retirement and whether the workman was entitled to medical leave or not.

6. Mr. D.P. Chaliha, counsel appearing for the workman respondent has however urged that the petitioner/appellant could file appeal under the Workmen's Compensation Act and the learned single Judge has rightly dismissed the Civil Rule. It has also been urged that the order passed by the Addl. Deputy Commissioner on March 25, 1991 was passed on merit and is justified. In this connection, it may be noted that Mr. Barua, learned counsel appearing for the petitioner/appellant has stated before us that the workman-respondent has retired from the Company's service and has received an amount of Rs. 96,670.00.

7. The first question which arises for consideration before us is as to whether the Civil Rule, after the order having been passed by the learned single Judge, could be dismissed on the ground of availability of an alternative statutory remedy.

8. After careful consideration of the point raised by the learned counsel for the parties, we are of the opinion that the Civil Rule could not be dismissed for that reason. Firstly, the Civil Rule having been admitted, the same has to be adjudicated on merits and could not be dismissed on the ground of availability of an alternative remedy, specially as no questions of facts are involved for deciding the question raised in the Civil Rule. Secondly, as held by the Apex Court in case of Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147 when there is absolute lack of jurisdiction in passing the order, the existence of alternative remedy will not debar the Court in exercising jurisdiction under Article 226, of the Constitution.

9. It has now to be seen whether there was absolute lack of jurisdiction when the impugned order was passed. A claim under the Workmen's Compensation Act can be made for recovery from the employer, the liability of compensation which has been set out in Section 3, of the aforesaid Act, i.e., if personal injury is caused to a workman by accident arising out of and in the course of employment, his employer shall be liable to pay compensation in accordance with the provisions of the Act. The jurisdiction of the Workmen's Compensation Commissioner, therefore, is limited only to that extent. The adjudication by the Workmen's Compensation Commissioner on the questions as to xvhether the workman had been properly retired or not and whether medical leave should have been granted to him, are outside the jurisdiction of the Commissioner under the Workmen's Compensation Act. We are of the opinion that the impugned award given by the Commissioner of Workmen's Compensation Act dated March 25, 1991 is liable to be set aside on the ground of lack of jurisdiction to pass such an order.

10. We are, however, of the opinion that the claim of the petitioner/appellant be adjudicated again by the concerned Commissioner of Workmen's Compensation strictly in accordance with the provisions of the Workmen's Compensation Act, 1923 and the rules framed thereunder. He would determine the amount of compensation for the loss of his working capacity caused by the accident and whether it arose in the course of employment of workman respondent.

11. As the claim by the workman was filed in the year 1989, the interest of justice requires that the concerned Workmen's Compensation Commissioner shall now adjudicate the claim as laid down by the Court within three months from the date of production of the certified copy of this order by the workman-respondent.

12. Subject to the aforesaid observations, the present appeal is allowed and the order of the learned single Judge dated January 28, 1994 and the order of the Additional Deputy Commissioner of Workmen's Compensation, Golaghat dated March 25, 1991 are set aside.

However, looking to the entire facts and circumstances of the case, the parties shall bear their own costs.