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Judgment
Bashir Ahmed son of Ghulam Rasool Bhat resident of Thathri, Doda met with an accident on 10.2.1985 while in employment of the petitioner
herein in kilometer 76 of BatoteKishtwar National High way 1B and upon application filed by him he, was found entitled to an award of Rs.
65,029.80 by the respondent No. 1 Vide his award dated 18 7.1985. The petitioner herein filed an application for setting aside the exparte award
on 16.8.1985 which was rejected by the respondent No. 1 Vide the order now impugned in this writ petition. The petitioner invokes the
jurisdiction of this court under section 104 of the Constitution of Jammu and Kashmir for quashing the award and order passed by the respondent
No. 1 which are impugned in the petition on the grounds detailed 'in para 8 of the petition.
In the objections filed on behalf of the respondent No. 2 it is submitted that as the petitioner has failed to avail of other alternative effacacious
remedy of appeal, this petition' was liable to be dismissed. It is further submitted that the petition was not maintainable against the respondent No.
1 under section 104 of the Constitution of J&k. It is submitted on frets ''that the petitioner was duly served but absented in the proceedings despite
firstly appearing before the respondent No. 1. It is submitted that even on facts there were no justifiable grounds for setting aside the exparte
award passed in favour of the respondent No. 2.
I have beard the learned counsel for the parties and have perused the record.
Mr. M P Gupta the learned counsel appearing for the respondents has raised a preliminary objection and submitted that"" as the respondent No.
2 was not a Civil Court, it was not aminable to the writ jurisdiction of this Court under section 104 of the Constitution of the Jammu and Kashmir.
Mr. M. N. Gupta the learned counsel appearing for the petitioner has referred to 1988 JSS8 KIJ 52, AIR 1979 Bombay 122 337 and AIR 1972
Delhi 208 to urge that the respondent No. I being a Tribunal wassubject, to the superintendence and control of this court under Article 227 of the
Constitution of India.
Section 104 of the Constitution of Jammu and Kashmir provides :
104: Superintendence and Control of subordinate Courts.(1) The High Court shall have superintendence and control over all Courts for the 'time
being subject to its appellate or revisional jurisdiction and all such courts shall be subordinate to the High Court
Article 227 of the Constitution of India Provides :
227 : Power of Superintendence over all courts by the High Court.(1) Every High Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises Jurisdiction.
5 Comparing the aforesaid, two provisions it would be clear that the word 'Tribunal' appearing in Art.227 of the Central Constitution absent from
Sec. 104 of the State Constitution which implies that the power of superintendence and the, control of the High Court under Section 104 of Stare
Constitution are limited only to the Courts arid not the Tribunals. The exclusion of the word, ""Tribunal"" is intentional and distinguishable from the
provisions of Art. 227 of the Constitution of India which are not invoked in ""the instant case. While dealing with the case under the Payment of
Wages Act, this court held in Ghulam Rasool Wani Vs. Gh. Mohd. Wani, 1986 KLJ 173.
On 'reading the provisions of the Act and on considering the interpretation placed ""on these provisions by the High Courts cited above and on
consideration of all other material cited at the bar, such as 'Supreme Court judgment revolted in AIR 1950 SC 188 and AlR 1951 Cal, 29, AIR
1970 Orissa 76, I have reached the bumble conclusion that the authority under the Act is not a Civil court and as such not amenable to the
revisional Jurisdiction of the High Court under section 115 of the Code of Civil Procedure.
6 The constitutional framers of the State even though aware of the existence of the word tribunal in Art. 227 of the Central Constitution, omitted
the same to be incorporated in Sec. 104 of state Constitution, with the object of providing protect ion to such tribunals and depriving (his court of
having jurisdiction over them presumably keeping in view 1he object of the enactment which were sought 'to be achieved by such exclusion. The
respondent No. 1 cannot be equated with a Court for the purposes of Sec. 104 of the constitution of the State as has been argued by the learned
counsel for the petitioner In AIR 1950 Nag: 14 a Division Bench of that Court after referring to and discussing a number of authorities cited came
to the conclusion that the authority appointed under the Payment of Wages Act was not a civil court. Similarly it was held in AIR 1979.M. P: 21
that the main distinction between the 'Court' and Tribunal was that a court was a Tribunal constituted by the State as a part of the ordinary
hierarchy of Courts, whereas a Tribunal was constituted under a special Act to exercise some special jurisdiction. It was further held : that
Commissioner appointed under the Workmen's Compensation Act was a tribunal and not a Civil Court. The provisions of sec, 104 of the State
Constitution have to be, sparingly exercised and no party can be permitted to invoke the jurisdiction of this court under this Section as an appeal in
disguise. It was held in Smt. Gian Devi Vs. Sub Judge (C. J. M.) Jammu and ors, 1956 KLJ 307 that:
The jurisdiction under section 104 of the Constitution ' is not to be used as an appeal in disguise. It cannot be exercised to bring up an order of
decision of the subordinate court for rehearing of an issue raised in the proceedings, when the statutory remedy available against the order of
decision has neither been exhausted or allowed to lapse because of bar of Limitation. Errors of fact or law which are committed by the
Subordinate court, while acting within the bounds and limits of their jurisdiction and authority, can be scrutinized by then appellate or the revisional
court and the High Court cannot in exercise of its jurisdiction under sec. 104 of Constitution, convert itself into a court of appeal or revision to
correct such errors of law or fact allegedly committed by the subordinate courts. The powers under, section 104 of the Constitution are not meant
to come to the aid of a party who has chosen not to avail of the statutory remedy of appeal or revision within the period prescribed by the law of
limitation. If the bar of limitation does not stare the petitioner, the High Court may even, in approprite cases direct that the petition may be treated
as an appeal or revision subject to the payment of court fee etc. but it cannot show that indulgence after the period or revision has expired, A
petition under section 104 of the Constitution cannot be permitted to hoodwink law.
Even on facts there is no good ground made out justifying interference by this court. From the record it appears that petitioners were duly
served and appeared before the respondent No. 1 through Sh. Manohal Lal Sectional Officer, who was provided with the copy of the application
and afforded opportunity to file objections but none appeared on his behalf on 13.5 1985 and thereafter. The tribunal recorded the statement of
the witnesses and passed the award, which, is now sought to be quashed. The purpose of the Workmen's Compensation Act would be defeated if
the employers are allowed to choose their time for appearance and contesting the cases in which the compensation is immediately required to be
paid to the injured or the deceased. The employers cannot be permitted to defeat the object for which statute was enacted by adopting delaying
tactics or hyper technical approaches and pleas.
There is no merits in this petition which is accordingly dismissed in limini. Stay order issued by this court on 3rd August, 1988 shall stand
vacated and CMP No. 397 of 1988 disposed of. The amount of the award if deposited in this court shall be disbursed to the respondent No. 2
through a payees account cheque. Under the circumstances of the case the parties are left for bear their own costs.