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Judgment
K.K. Gupta, J.—Vijay Singh was working as Work Supervisor in the J&K P.C.C. and posted at Gandoh, Tehsil Bhalesa, District Doda.
On October 30, 1987 he was deputed on official duty to Udhampur Divisional Office and while proceeding to that place the bus in which he was
travelling halted at Khaleni, a place between Doda and Batole, due to road blockade where a shooting stone, because of blasting, hit him resulting
in serious bodily injuries, due to which he died on spot. His widow, Nirmal Kumari, respondent No. 2 herein, filed application under Workmen's
Compensation Act before the Commissioner under the said Act for grant of compensation and that court after adjudicating upon the matter on
June 30, 1989 ordered grant of compensation of Rs. 78,510.08. Aggrieved by that order petitioner herein has filed this petition under Article 226
of the Constitution of India for quashing the said award.
The main plea which the petitioner has taken in this petition in invoking writ jurisdiction of this court is that the deceased husband of respondent
No. 2 was not a workman as defined under the Workmen's Compensation Act. ('Act' hereafter), as he was neither a manual worker nor a skilled
worker nor a technician nor operator of any mechanical device used for the construction purposes. It has further been averred in the petition that
being a supervisor the deceased had to supervise the construction work like all other higher officers, i.e., Junior Engineers, Assistant Engineers,
Asstt. Executive Engineers and Executive Engineers.
Respondent No. 2 has filed objections to the writ petition stating therein that under the provisions of the Act the remedy against the award was
to prefer an appeal within the stipulated period of sixty days after depositing the amount of award with the respondent No. 1 but the petitioner
instead of availing that remedy has filed writ petition in order to cross the bar of limitation as well as that of depositing the amount of award. She
has challenged action of the petitioner in invoking extraordinary jurisdiction of the court when alternate remedy was available. She has further
stated that the petitioner has raised factual points for the first time in the writ petition and in fact the deceased had been engaged for constructional
work in the State of J&K. She has also shown her helplessness to carry on with two minor daughters.
I have heard the learned counsel for the parties and perused the record. The Commissioner under the Act posted at Jammu has awarded
compensation to the widow of the deceased under the provisions of the Act after hearing both the sides. Section 30 of the Act lays down a
provision for filing appeal against the order of the Commissioner under the Act and under Clause (2) of that section period of limitation for filing
appeal provided is sixty days. Under proviso to Clause (1) of the said section no appeal by an employer shall lie unless memorandum of appeal is
accompanied with a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order
appealed against. The petitioner being employer of the deceased did not choose to avail this remedy of appeal. It is also clear from record that the
petitioner did not deposit the amount of compensation before approaching this court even. Present petition was filed on October 19, 1989, i.e.,
after 110 days. The petition has thus been filed after expiry of period of limitation.
Mr. Kotwal, learned counsel appearing for the petitioner, has argued that Vijay Singh deceased was not a workman as defined under the Act
and the Commissioner under the Act committed illegality in awarding compensation to him and because of the illegal action the petitioner had
remedy to approach this court by invoking its writ jurisdiction. Mr. Bhardwaj, learned counsel for respondent No. 1, on the other hand, has
controverted the argument of Mr. Kotwal by pointing out that the deceased was certainly a workman as he was engaged, besides supervising
work, for constructional works also and, according to him, such plea was not taken by the petitioner before the Commissioner.
Their Lordships of the Supreme Court have dealt with the point regarding availing of the remedy under Article 226 of the Constitution of India in
case reported as Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, . It has been held in this
case that when alternative and equally efficacious remedy is open to a litiganthe should be required to pursue that remedy and not invoke special
jurisdiction of the High Court to issue prerogative writ. It has further been laid down in the said judgment that existence of a statutory remedy did
not affect the jurisdiction of the High Court to issue a writ, but the existence of an adequate legal remedy is a thing to be taken into consideration in
the matter of granting writ and where such remedy exists it will be sound exercise of discretion to refuse to interfere in a writ jurisdiction unless
there are good grounds therefor. Their Lordships have, however, referred to two well recognised exceptions to the abovesaid doctrine with regard
to exhaustion of statutory remedy, first out of which is that where proceedings are taken before a Tribunal under a provision of law, which is ultra
vires, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writ, and in the second place, the
doctrine has no application in a case where the impugned order has been made in violation of principles of natural justice. In this case the petitioner
wants this court to invoke its extraordinary power of writ jurisdiction on the ground that the deceased was not a workman as defined in the Act
and, according to him, the deceased has thus wrongly been awarded compensation under the Act. In the first place I would like to observe that no
such plea was raised by the petitioner in proceedings conducted before the Commissioner under the Act. Even the petitioner did not mention so in
the objections filed by him before that forum. Respondent No. 2 in her objections has stated that the deceased besides supervising the work of the
petitioner-organisation was also doing manual work on spot. How to determine it is a question of fact which cannot be gone into in this petition. In
case the petitioner had raised such point the Commissioner ought to have considered the same and given finding as he had obtained evidence of
both the parties.
Moreover, workman has been defined in Section 2(1)(n) of the Act as a person (other than a person whose employment is of a casual nature
and who is employed otherwise than for purpose of the employer's trade or business), who is (i) a railway servant as defined in Section 3 of Indian
Railways Act... (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as specified in Schedule II, whether the
contract of employment was made before or after passing of the Act and whether such contract is express or implied.
Schedule II of the Act provides list of persons who are included in the definition of workman and Clause (viii) (c) of this Schedule refers to such
workman who is employee in the construction, maintenance, repair or demolition of any road, bridge, tunnel or canal. Admittedly J&K P.C.C. is
doing constructional work of buildings and roads in the State. Vijay Singh deceased was employed by this organisation for the said purpose. No
doubt he was being termed as Supervisor but as it comes out from objections he was also engaged in the constructional works. Mere designating
him as Supervisor will not change his status as that of workman as he is otherwise qualified for it. He was thus certainly falling under category of
workman as defined under the Act at the time of his death. The deceased was a youngman of 30 years of age at that time and he left behind a
young widow in twenties with two minor daughters.
In view of the above discussed facts and circumstances there was hardly any reason or ground for the petitioner to invoke writ jurisdiction of
this court under Article 226 of Constitution of India when remedy of appeal under the Act was available to him where the points canvassed before
this court could have been adequately agitated. The petitioner in order to overcome the period of limitation and also to evade deposit of the
awarded amount carved out an excuse by filing the present petition. This writ petition is without merit and also suffers from jurisdictional error. It is
accordingly dismissed.
The amount of compensation has been received in this court under court orders and that amount shall be paid to the widow of the deceased,
respondent No. 2 herein, under payee's account cheque by the Additional Registrar of this court.