Dilip Singh Vs. General Manager, Central Railway 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)]. bhawani singh, c.j. 1. this appeal is directed against the order of the commissioner under the workmen's compensation act, 1923 dated june 7, 1999, whereby the claim of the claimants has been dismissed,2. shortly stated, the facts of the case are that rewal singh (deceased) was employed with the respondents as khalasi/gangman. he was receiving monthly wages of rs. 1006/- and was 32 years old when the accident took place on december 31, 1997. claimants are children of the deceased. they were minors at the time of the accident and their mother left the house after being unable to bear the shock of the death of her husband and her whereabouts arc not known even now. after reaching the age of majority, the claim petition has been filed claiming compensation of rs. 1,90,497.00 and salary for 13 days.3. respondents have stated that the deceased was on leave from december 26, 1987 to december 30, 1987. he was to report for duty on december 31, 1987, but during the course of leave, he died. therefore, the claimants cannot be paid compensation. the wages for 13 days is pending with the respondents which the claimants can take after completing necessary formalities. therefore, the claim is liable to be dismissed.4. on the pleadings of the parties, the commissioner framed issues for determination of the dispute between the parties, among them, the most important are whether the deceased died during the course of leave or he died before reporting for duty.5. the commissioner has come to the conclusion that it could not be proved that the accident took place while the deceased was on duty. consequently, the claim has been dismissed. therefore, it has been challenged by the claimants through this appeal.6. shri ruprah, learned counsel for the respondents, contended that there is no case for interference, since the claimants have not been able to prove that the deceased died while on duty. he relied on the apex court's decision in case of regional director, e.s.i. corporation v. francis de costa air 1997 sc 432 : 1996 (6) scc 1 : 1997-i-llj-34. it is also contended that claim has been preferred after lapse of two years period of limitation prescribed under the act. the submissions are opposed by the learned counsel for the appellants.7. the accident took place on december 31, 1987. dilip singh has stated that he was 10 years old on the date of the accident, which means he attained majority on december 31, 1997. the claim has been filed on september 19, 1996. other claimants were also suffering from the same disability. therefore, in terms of section 6 of the limitation act, 1963, the claimants could prefer the claim after the disability of minority was over. therefore, the claim has been filed within limitation and the objection by the respondents is liable to be dismissed.8. next question is whether the accident took place while rewal singh was on duty. after going through the evidence of the parties in this case minutely, we find that the deceased was on leave from december 26, 1987, which means his leave was over in the midnight of december 30, 1987 and he was to join the work on december 31, 1987. shri ruprah submits that he died on december 31, 1987 when he was on leave and was to report for duty. this is completely an erroneous assessment of evidence. actually as stated above, his leave was over by mid-night of december 30, 1987 and he was to resume work on december 31, 1987. respondents have not stated that he was assigned work in the office with some officer at the railway station, nor it is the case of respondents that before joining duty, deceased was to report with some officer and after doing so, he was to be assigned work. this being so, the legitimate conclusion is that the deceased, who is stated to be khalasi/cleaner/gangman was to work as khalasi and laying earth at the railway track. the accident took place at the railway track of the railway station where he was cut in the yard by the 394 passenger train. therefore, it cannot be said that the deceased was not on duty at the time of accident and the contention raised by shri ruprah to the contrary is liable to be dismissed. the decision on which reliance has been placed by shri ruprah is not applicable to the facts of this case.9. adverting to the question of determination of compensation, we find that deceased was earning rs. 1006 per month, (one thousand for our purpose). therefore, 40% of this amount would come to rs. 400 to be multiplied by the relevant factor of 203.85, therefore, the compensation works out to rs. 81,540.00 with 50% penalty and interest at the rate of 6% per annum.10. the amount be calculated from february 1, 1988 with interest at the rate of 6% per annum on the amount of rs. 81,540.00 till date of recovery and paid to the claimants. out of the amount of compensation 33% is awarded to kumari smita alias munni (claimant no.3) which shall be deposited with some nationalised bank in f.d.r., in her name through the manager of the bank by the respondents till she attains majority. rest of the amount of compensation be paid to dilip singh and kumari geeta equally. the appellants shall also be entitled to cost of rs. 5,000.00. the amount be paid within two weeks.