Jharkhand High Court
Sanjay Karpri @ Sanjay Kumar Kapri vs The State Of Jharkhand on 4 September, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L). No.5587 of 2017
Sanjay Karpri @ Sanjay Kumar Kapri, son of Late Jagarnath
Kapri, resident of Village Kasba, P.O. Hansdiha, P.S. Saraiyahat,
District Dumka .......... Petitioner
Versus
1.The State of Jharkhand.
2.Gomdi Rout son of Late Raju Raut, resident of Village
Bamankheta, P.O. and P.S. Hansdiha, District Dumka
........ Respondents
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CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD
———-
For the Petitioner : Mr. Vijay Shankar Jha, Advocate
: Mr. Manish Kumar, Advocate
: Mr. Abhishek Sharan, Advocate
For the State : None
For the Resp. No.2 : Mr. Rishav Kumar, Advocate
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th
10/Dated:04 September, 2024
Heard Mr. Vijay Shankar Jha, learned counsel for the
petitioner and Mr. Rishav Kumar, learned counsel for the
Respondent no.2. None appears for the State.
2. This writ petition has been filed on behalf of the petitioner
challenging the judgment dated 22.06.2017 passed by learned
Presiding Officer, Labour Court, Deoghar in W.C. Case No.28 of
2011 by which the petitioner has been directed to deposit the
cheque of compensation amount of Rs.3,36,000/- within three
months.
3. Learned counsel for the petitioner has submitted that the
impugned judgment dated 22.06.2017 passed by the learned
Labour Court is illegal, arbitrary and not sustainable in the eye of
law. It is submitted that the learned Labour Court below has given
wrong finding that the petitioner is the Owner of the Tractor in
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question and was the employer of the deceased son of the
Respondent no.2. It is submitted that even the petitioner has
admitted during his evidence, in cross-examination at para-13 and
14 that he had neither seen the Tractor nor seen any other person at
the place of occurrence. It is submitted that the Court below has
declared the petitioner as the Owner of the Tractor in question
although no charge sheet was submitted against him by the police,
however, the learned Magistrate had taken cognizance against him
and as such the learned Labour Court by relying upon the order
taking cognizance has allowed the claim of the Respondent No.2
illegally.
4. It is submitted that the petitioner had already been acquitted
in the criminal case vide judgment dated 12.01.2018 in S.T. No.13
of 2015 by the learned District and Additional Sessions Judge-IV,
Dumka and as such the judgment passed by the learned Labour
Court is not sustainable in the eye of law and it may be set aside in
the interest of justice.
5. On the other hand, learned counsel for the Respondent No.2
has opposed the prayer of the petitioner and submitted that the writ
petition is not maintainable. It is submitted that as per the
provision of Section 30(1)(a) of the Employee’s Compensation
Act, 1923, the judgment passed by the learned Labour Court in
W.C. Case No.28 of 2011 is appealable. However, the writ
petitioner instead of filing appeal has filed this writ petition only in
order to avoid payment of compensation. It is submitted that the
Appeal should have been filed by depositing the amount of
compensation and after obtaining the certificate of the
Commissioner but instead of doing the same, he has preferred the
writ petition only to avoid payment of compensation.
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6. Learned counsel for the Respondent No.2 in support of his
contention has relied upon the judgment reported in 2019 SCC
OnLine Pat 564 (Frontline (NCR) Business Solutions Private
Limited through its General Manager vs. Anita Devi and others),
the order dated 02.04.2024 passed in C.W.P No.11289-1998 (State
of Punjab and others vs. Rajvir Kaur and others) by the High
Court of Punjab and Haryana at Chandigarh and 2023 SCC
OnLine SC 1852 (India Glycols Limtied and Anr. vs. Micro and
Small Enterprises Facilitation Council, Medchal-Malkajgiri and
Ors.) (para-5 and 10). It is submitted that in view of the above the
writ petition may be dismissed.
7. Having heard learned counsel for both the sides and going
through the records, this Court finds that a compensation case
bearing W.C. Case No.28 of 2011 was filed by the Respondent
No.2 against the petitioner for grant of compensation of
Rs.5,00,000/- along with due wages from 15.10.2010 to
21.10.2010 @ Rs.100/- per day . It has been claimed that the
deceased-Kumod Rout, who was the son of the Respondent No.2,
was engaged by the petitioner- Sanjay Karpri on 21.10.2010 for
carrying stones on his Tractor No.JHE 1835 and in course of the
loading stones at Amaya Pahari, the deceased who was aged
around 20 years, sustained injury from the stone and he died on the
spot.
8. Thereafter, the Respondent No.2 had instituted a case
bearing Saraiyahat P.S. Case No.224 of 2010 on 21.10.2010 under
Section 304 IPC and allied section of the IPC and also under the
provisions of Mines and Explosive Act. However, copy of the FIR
has not been enclosed in the writ petition.
9. It appears from the impugned judgment that although the
petitioner was not charge sheeted, yet the learned Judicial
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Magistrate had taken cognizance under Section 304 IPC and on the
basis of that finding, the learned Court below has proceeded
against the petitioner and after giving notice to both the sides to
lead their evidence, the Court below by the impugned judgment
dated 22.06.2017 directed the petitioner to pay compensation of
Rs.3,36,000/- within three months. However, the petitioner has
filed the present writ petition instead of filing the appeal under the
provisions of Section 30(1)(a) of the Employee’s Compensation
Act, 1923.
10. For better appreciation of the case, Section 30(1)(a) and 2 of
the Employee’s Compensation Act, is being quoted herein:-
“30.Appeals-(1) 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;”
[Provided 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.]
(2) The period of limitation for an appeal under this
section shall be sixty days.”
11. It appears that as per the provisions of the Section 30(1)(a) of
the Employee’s Compensation Act, the appeal will be
maintainable as an alternative remedy instead of filing writ
petition.
12. Even the Hon’ble Patna High Court observed in the case of
(Frontline (NCR) Business Solutions Private Limited through its
General Manager vs. Anita Devi and others), reported in 2019
SCC OnLine Pat 564 that the appeal will be maintainable instead
of filing writ petition.
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13. The Punjab and Haryana High Court vide order dated
02.04.2024 passed in C.W.P No.11289-1998 (State of Punjab and
others vs. Rajvir Kaur and others) at para-4 and 7 has held as
follows:-
“Para-4:- Learned Senior Counsel further points out
that the writ petition against the said award is not
maintainable because as per Section 30(1)(a) of the Act,
the order passed by the Commissioner is appealable and
according to the third proviso, the appeal would not be
maintainable until it is accompanied by a certificate of the
Commissioner to the effect that the appellant has
deposited with him the amount payable under the
impugned order.
Further submits that contention of the petitioners in
Paragraph 12 of the writ petition, wherein, it has been
specifically stated that petitioners are left with no other
remedy except to invoke extra-ordinary writ jurisdiction of
this Court, is totally misconceived, same being totally
contrary to the facts and circumstances of the present
case.
For reference, paragraph No.12 of the writ petition
is reproduced as under:-
“12. That the petitioner has left with no other
remedy except to invoke extra-ordinary writ
jurisdiction under Article 226/227 of the
Constitution of India in this Hon’ble High Court.”
Para-7:- Furthermore, this Court cannot lose sight of the
fact that the petitioners herein, against whom the
impugned award has been passed, are State Government
and/or its authorities, i.e. (1) State of Punjab, (2)
Secretary to Government Punjab, Information and Public
Relation Department, and (3) District Public Relation
Officer, Bathinda. On the basis of mere technicalities, the
petitioners, who are well acquainted with law, its lengthy
procedure and aims and objects of the Statute, i.e.
Workmen’s Compensation Act, cannot be expected to sit
idle with closed eyes, and not to pay the awarded amount
of compensation to the needy family. Moreover, a frivolous
attempt has been made by filing present writ petition
before this Court, without pointing out any special reason
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of doing so, merely to avoid deposit of the compensation
amount, for not filing appeal.
Looking at the conduct of the petitioners, this Court
is constrained to impose cost amount of Rs.1,00,000/-
(Rupees one lac only), against the petitioners/State of
Punjab, to be deposited with the Punjab and Haryana
High Court Bar Association Lawyers Family Welfare
Fund, in State Bank of India, Current Account
No.41564846387, IFSC Code: SBIN0050306, within a
period of two weeks from today.
Copy of the receipt of deposit of cost amount, be
also produced on the adjourned date.”
14. It has been held by Hon’ble Supreme Court in the case of
India Glycols Limtied and Anr. vs. Micro and Small Enterprises
Facilitation Council, Medchal-Malkajgiri and Ors. reported in
2023 SCC OnLine SC 1852 at para-5 and 10 as follows:-
“Para-5:- In an appeal by the second respondent, the
Division Bench by its judgment dated 21 March 2023,
reversed the view of the Single Judge. The Division Bench
has come to the conclusion that the writ petition instituted
by the appellant was not maintainable in view of the
specific remedies which are provided under the special
statute. The High Court held that the appellant ought to
have taken recourse to the remedy under Section 34 of
the Arbitration and Conciliation Act, 19962 and having
failed to do so, a writ petition could not be entertained.
The observations of the High Court are set out in
paragraph 38 of the impugned judgment which is
extracted below:
“38. Insofar maintainability of the writ petition is
concerned, when respondents No. 2 and 3 had an
adequate, efficacious and alternate remedy under Section
34 of the 1996 Act, learned Single Judge ought not to have
entertained the writ petition. While maintainability of a
writ petition is one aspect, entertainability is the relevant
question. Considering the objective of the MSME Act and
the provisions of Sections 15 to 23 thereof, learned Single
Judge erred in entertaining the writ petition.
Para-10:- In terms of Section 19, an application for
setting aside an award of the Facilitation Council cannot
be entertained by any court unless the appellant has
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deposited seventy-five per cent of the amount in terms of
the award. In view of the provisions of Section 18(4),
where the Facilitation Council proceeds to arbitrate upon
a dispute, the provisions of the Act of 1996 are to apply to
the dispute as if it is in pursuance of an arbitration
agreement under sub-section (1) of Section 7 of that Act.
Hence, the remedy which is provided under Section 34 of
the Act of 1996 would govern an award of the Facilitation
Council. However, there is a super added condition which
is imposed by Section 19 of MSMED Act, 2006 to the
effect that an application for setting aside an award can
be entertained only upon the appellant depositing with the
Council seventy-five per cent of the amount in terms of the
award. Section 19 has been introduced as a measure of
security for enterprises for whom a special provision is
made in the MSMED Act by Parliament. In view of the
provisions of Section 18(4), the appellant had a remedy
under Section 34 of the Act of 1996 to challenge the
award which it failed to pursue.”
15. In view of the specific provisions of Section 30(1)(a) of the
Employee’s Compensation Act, 1923 and also in view of the law
laid down by the Hon’ble Supreme Court and the Hon’ble Punjab
and Haryana High Court, this Court finds that the writ petition is
not maintainable
16. Accordingly, this writ petition is dismissed, however, the
petitioner will be at liberty to file the appeal, if so advised.
(Sanjay Prasad, J.)
Saket/-
AFR
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