Shipra Bhowmick Vs. Presiding Officer and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - therefore, the findings of the learned commissioner for workmen's compensation that the appellant was married and divorced lady and was not dependent on the deceased and was not entitled to claim compensation is perverse and bad in law. tamaskar is well founded.n.p. singh, j.1. this is an appeal under section 30 of the workmen's compensation act.2. it is directed against the award dated 17.11.1987 given by the commissioner for workmen's compensation, durg, in case no. 2 w.c. act/86 (fatal), dismissing the claim of the appellant.3. facts giving rise to this appeal are that:(1) one s.p. bhowmick was employed in mahamaya mines of bhilai steel plant who died in harness on 27.12.1985 while he was on duty.(2) respondent no. 4 had deposited rs. 69,080/- in the court of commissioner for workmen's compensation, durg for disbursement of the amount to the claimants of the deceased.(3) the respondent no. 2 wife and respondent no. 3 minor son of the deceased preferred claim for compensation before the commissioner for workmen's compensation, durg.(4) the appellant, claiming herself to be an unmarried sister and dependant of the deceased also preferred a separate claim application before the commissioner for workmen's compensation for v3rd share in the compensation amount.(5) the respondent nos. 2 and 3 objected to the claim of the appellant by stating that the appellant was married and is a divorced lady and she was not dependant of the deceased and she was not entitled to any compensation amount claimed by her.(6) the commissioner for workmen's compensation on consideration of the case and evidence, gave an award in favour of the respondent nos. 2 and 3, rejecting the claim of the appellant.4. mr. vivek rusia, counsel for the appellant, has contended that the learned commissioner for workmen's compensation has not considered the case in its proper legal perspective and has wrongly dismissed the claim of the appellant. the respondent nos. 2 and 3 have not been able to file any document to show that the appellant was married and is a divorcee. the respondent no. 2 who is the sister-in-law of the appellant, in her deposition was not able to say as to when, where and to whom the appellant was married. the letter, exh. p-5, alleged to have been written by one durvadas gupta, husband of the appellant, to the appellant has no legal sanctity. the letter, exh. p-5, is in bengali script and it was not followed by translation, either in english or in hindi. therefore, the findings of the learned commissioner for workmen's compensation that the appellant was married and divorced lady and was not dependent on the deceased and was not entitled to claim compensation is perverse and bad in law.5. mr. v.g. tamaskar, counsel for the respondent nos. 2 and 3, on the other hand, has contended that the letter, exh. p-5, written to the appellant by her husband was admitted in evidence without any objection by the appellant. it is not now open to the appellant to challenge the admissibility of the letter, exh. p-5, in evidence at the appellate stage. he further contended that an appeal lies under section 30 of the workmen's compensation act only on a substantial question of law. the appellant has not been able to formulate any substantial question of law involved in this appeal. the appeal, therefore, deserves to be dismissed.6. contention of mr. tamaskar is well founded.7. proviso to section 30(1) of the workmen's compensation act, inter alia, provides that no appeal shall lie against any order unless a substantial question of law is involved in the appeal.8. mr. vivek rusia, counsel for the appellant, has not been able to point out any substantial question of law involved in this appeal. letter, exh. p-5, is much prior to the death of the deceased. the letter, exh. p-5, addressed to the appellant by her husband settles the controversy at rest that the appellant is not unmarried and dependant of the deceased. the appellant does not come within the definition of the dependant, under section 2(1)(d) of the workmen's compensation act and she is, therefore, not entitled to compensation awarded by the workmen's compensation commissioner.9. for the aforesaid, i do not find any reason to interfere with the finding of the learned commissioner for workmen's compensation. there is no merit in the appeal. accordingly, it is dismissed.