@JUDGMENTTAG-ORDER
1. The writ petition is filed questioning the order passed by the 1st respondent. The order was passed by the 1st respondent on 7-12-1998. The challenge is based on several grounds. However, this Court is not inclined to go into the various grounds raised in the writ petition. Brief facts of the case which are necessary are as follows :
The petitioner claims to be the crane operator/owner. The same is given on hire to the cine producers for their outdoor and indoor shootings. One Mr. Mohan Rao was engaged as a casual labourer, as a helper to operate the crane. When Mr. B. Mohan Rao was travelling in the A.P.S.R.T.C. bus from Rajahmundry to Vijayawada when the crane was hired by the cine producers for the film ''Little Soldiers'' the bus in which Mr. B. Mohan Rao was travelling met with an accident 45 Km. from Vijayawada resulting in the death of Mr. B. Mohan Rao.
2. An application in WC 404/95 (old) WC 302/96 (new) was moved before the 1st respondent by the father of the deceased and another. In the said application it was alleged that Mr. B. Mohan Rao died on 27-9-1995 at 3 p.m. in an accident during the course of employment with Rl. When the said application was not entertained a wit petition No.29356 of 1995 was filed before this Court and the same was disposed of on 28-12-1995 directing the Rl to dispose of the Workmen''s Compensation case expeditiously. Then, Rl gave opportunity to both parties and examined the evidence both oral and documentary and came to the conclusion that Mr. B. Mohan Rao died during the course of the accident. Taking into consideration his wages lie awarded a sum of Rs,2,63,940A payable to the legal heirs of the deceased. Challenging the said order this writ petition is filed.
3. The learned Counsel for the petitioner Sri V. Rajctgopal Reddy submits that though the right of appeal is provided in the Workmen''s Compensation Act (the Act for bravity) u/s 30, the same is onerous. The Act obligates the applicant to deposit the entire ''award amount'' before the Commissioner for Workmen''s Compensation and then avail the remedy. Therefore, the learned Counsel submits that even though there is a right of appeal u/s 30 of the Act, still this Court can entertain a writ petition under Articles 226 and 227 of the Constitution of India.
4. The learned Counsel for the petitioner relied on a Patna I-ligh Court judgment in Guru Bachan Singh v. State of Bihar, 1969 Lab 1C 898. Their Lordships were dealing with a case under Articles 226 and 227 of the Constitution of India wherein the order passed by the Deputy Commissioner acting as a Commissioner under the Workmen''s Compensation Act was impugned. Their Lordships in para (3) of the judgment held as follows :
" .............. Learned Counsel for the petitioner has relied upon Section 10-A(4) of the Workmen''s Compensation Act and has contended that the procedure which has been followed by the Commissioner under the Workmen''s Compensation Act is illegal and that after the present petitioner had disclaimed his liability, no order could be passed by the Commissioner determining finally the compensation to be given to the heirs of the deceased. Our attention has also been drawn to a notification of the State Government u/s 20 of the Workmen''s Compensation Act, according to which, in contested cases, only the presiding officers of the Labour Courts arc ex-offlcio Commissioners for Workmens Compensation. The other officers mentioned in the notification were ex-officio Commissioners who could deal only with uncontested cases. Learned Counsel for the opposite party No.8, father of the deceased, has argued that this Court should not interfere in its writ jurisdiction when the aggrieved party could have filed an appeal u/s 30 of the Workmen''s Compensation Act.
Having heard the learned Counsel for the parties, I am of the opinion that when the law on the subject is quite clear, there is no bar to this Court in entertaining a writ application at this stage. Section 10A(4) lays down that where the employer has disclaimed the liability, the Commissioner, after such enquiry as he may think fit, may inform the dependents of the deceased workman that it is open to the dependents to prefer a claim for compensation and may give them such other further information as he may think fit. In this case, the Commissioner had not done what he should have done under this provision of law. It is clear that Section 10-A(4) contemplates that when a contest has arisen before the Commissioner, the procedure to be followed is that the dependents will be given an opportunity to prefer a claim for compensation, upon which the matter will proceed according to various sections mentioned in this Act............"
5. Having gone through the Division Bench judgment of the Patna High Court, with great respect J am not able to persuade myself to agree with their Lordships. In fact, their Lordships clearly observed that when a High Court takes up the case at late stage there is no bar to the High Court to entertain the writ application. This indicates that proceedings were pending before the Workmen''s Compensation Commissioner for a long time and because of the question of jurisdiction and also question regarding the power and authority of various officers constituted under the Act was there, the said observation was made. The judgment of Patna High Court, (supra), in my view cannot be considered as an authority for the proposition that in view of the onerous provision providing appeal, this Court''s jurisdiction under Article 226 of the Constitution of India is not ousted. Therefore, the contention of the learned Counsel for the petitioner is not sustainable.
6. It is well settled that when a statute provides special and specific remedies to a citizen and in fact when the citizen avails those remedies the jurisdiction under Article 226 of the Constitution of India shall not be exercised unless the enabling enactment does not provide right of appeal. In
"So far as the second point is concerned the High Court relies upon the ordinary rule of construction that where the Legislature has passed a new statute giving a new remedy, that remedy is the only one which could be pursued. It is said that the Taxation of Income (Investigation Commission) Act, 1947 itself provides a remedy against any wrong or illegal order ofthe Investigating Commission and u/s 8(5) of the Act, the aggrieved party can apply to the appropriate Commissioner of Income Tax to refer to the High Court any question of law arising out of such order and thereupon the provisions of Sections 66 and 66-A of the Indian Income Tax Act shall apply with this modification that the reference shall be heard by a Bencli of not less than three Judges ofthe High Court.
We think that it is not necessary for us to express any final opinion in this case as to whether Section 8(5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 ofthe Constitution.
For purposes of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere."
Further, when there are serious questions of disputed facts this Court need not exercise jurisdiction under Article 226 of the Constitution of India. There are catina of judgments ofthe Apex Court to support in this view. It is apposite to refer to the following para from the judgment of the Hon''ble Supreme Court in
"The High Court dismissed the writ petition on the ground that it involved determination of disputed questions of fact. It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time."
In
"It is next contended for the respondents that, whatever the merits of the contentions based on the construction of the contract, the proper forum to agitate them would be the authorities constituted under the Act to hear and decide disputes relating to assessment of tax, that it was open to the appellanls to satisfy those authorities that there have been no sales such as are liable to be taxed, that indeed they were bound to pursue the remedies under the Act before they could invoke the jurisdiction of the Court under Article 226 and that the learned Judges of the High Court were, therefore, right in declining to entertain the present petitions. // is true that if a statute sets up a Tribunal and confides to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High Court will not, in the exercise of its extraordinary jurisdiction under Article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the Tribunal or interfere with their course before it. But it is equally well settled that when proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to party aggrieved thereby to move the Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. That has been held by this Court in
7. In this case admittedly after receipt of the notice of the petitioner herein appeared before the Rl, contested the case, and having taken chance and facing failure before the Rl, he has approached this Court. The only ground urged before me is that the right of appeal is onerous, for employers who have serious reservations about the incident as to whether the death occurred during the course of employment or when serious questions as to the status of the deceased are involved. As this Court is of the view that a writ petition is not maintainable, I am not going to these contentions.
8. The learned Counsel for the petitioner submits that the time for filing the appeal is 30 days from the date of receipt of a copy of the order. He has availed the remedy under Article 226 of the Constitution of India. As and when a CMA is filed u/s 30 of the Act, I do hope that this Court or any other Court will take these facts into consideration while ordering an application for condoning the delay.
9. This writ petition is accordingly dismissed at the admission stage.
