IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5771 OF 2008 WRIT PETITION NO. 5771 OF 2008 WRIT PETITION NO. 5771 OF 2008 New India Assurance Co.Ltd. ...Petitioner vs. 1. Mrs.Ansuya Chandrakant Padekar 2. Mr.Hirji L. Patel ...Respondents Mr.R.K. Cheulkar for the Petitioner. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : APRIL 6, 2009 DATED : APRIL 6, 2009 DATED : APRIL 6, 2009 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the petitioner. 2. By this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order passed by the Commissioner of Workmen’s Compensation, Labour Court, Mumbai, in Misc.Application (WCA) No.47/2006 in Application (WCA) No.238/G-12/2006 in Application (WCA) No.24/B-10/2002. Brief facts are as under :- 3. The respondent no.1 filed an application for compensation under the Workmen’s Compensation Act, 1923. Her son was working with respondent no.2 herein as a driver for about 3 years. While he was taking vehicle from Mumbai to Mangaon, he met with an accident and died - 2 - on the same day. It was alleged his death was caused in the course of employment with respondent no.2 and that he was insured on 15.2.2001 and was renewed by 16th May, 2002. The respondent no.1 therefore, claimed compensation of Rs.4,33,820/-. A Notice of the said application was served on the Divisional Office of the petitioner. This fact is not disputed. The Commissioner noted that though notices were served on the petitioner herein on 21st September, 2001, neither the petitioner herein nor respondent no.2 filed their reply and also did not pay compensation to the applicant or deposited it in the court. By judgment and order dated 23rd January, 2006, the application was allowed and the petitioner and the respondent no.2 were directed to pay jointly and severally compensation of Rs.4,33,820/- together with interest at the rate of 12% per annum from the date of the accident i.e. 5.5.2001 till the realisation of the compensation amount. The record indicates that on 11th August, 2006, the registered office of the Commissioner for Workmen’s Compensation informed the Collector of Thane to recover the amount and remit it to the office. A copy of this - 3 - notice was also served on the petitioner. Inspite of this, the amount was not paid. Thereafter, a demand notice dated 13th September, 2006 was again issued and served on the petitioner herein. Inspite of this demand notice also, the amount was not paid. Thereafter, a final demand notice was issued on 27th September, 2006 and due to the said demand notice, the petitioner herein deposited a cheque of Rs.4,33,820/- with a covering letter dated 27th September, 2006 in which the application (WCA) No.238/G-32/06 in original application (WCA) No.24/B-10/02 was also mentioned. The application for certified copy of the exparte judgment was filed on 2.12.2006 and on 28.12.2006, the application was filed for condonation of delay for setting aside the exparte judgment. In the said application it was stated that after the recovery notice was served, search for the papers was carried out to find out whether the said notice was served and therefore, delay was caused in filing the application for setting aside the said order. 4. Counsel for the petitioner submitted that the petitioner was not aware about the number of the - 4 - original application since the demand notice did not mention the said number and therefore, they had to go through the said documents from the various offices. He submitted that search was also taken out at the Vile Parle office and it later on transpired that the notice was served on the Divisional Office at Borivali, it took time to find the copies and as such, gave the application for certified copy which was made in December 2006. He relied on the judgment of the Apex Court in the case of State of Haryana v. Chandra Mani State of Haryana v. Chandra Mani State of Haryana v. Chandra Mani and others, reported in AIR 1996 SC 1623. and others, reported in AIR 1996 SC 1623. and others, reported in AIR 1996 SC 1623. He submitted that it had not been established by respondent no.1 that her son was an employee of respondent no.2. It was submitted that therefore, the delay caused in appearing before the Commissioner ought to have been condoned and opportunity ought to have been given by the Commissioner to permit the petitioner to lead evidence on this point. He submitted that the petitioner had deposited the said amount of Rs.4,33,820/- immediately after the demand notice was served. 5. The respondent no.1 has not been served though - 5 - notice was issued and the postal certificate shows that her address is not found. 6. In my view, there is no substance in the contentions raised by the learned Counsel appearing on behalf of the petitioner. The accident took place in the year 2001. Notices were served on 21st September, 2001 on the petitioner and the respondent no.2 immediately thereafter. No payment was made either by the petitioner or by the respondent no.2. Respondent no.1 had to file application for compensation with the Commissioner. The said notice was also served. Inspite of that, the petitioner did not appear before the Commissioner. Even after the demand notice was served on 13th September, 2006 and 27th September, 2006, no application for certified copy of the exparte order was filed. It was only after the second demand notice was served on 27th September, 2006, the compensation was deposited by the petitioner on 28th September, 2008. The compensation which was deposited was only the principal amount due and not the interest as demanded in the Demand Notice dated 13th September, 2006 and again - 6 - on 27th September, 2006. It was specifically stated that the amount of Rs.4,33,820/- plus interest was payable. Till today, interest component has not been deposited by the Insurance company. It was submitted by the Counsel for the petitioner that the petitioner was not aware about the number of the petition and the same is not reflected from the demand notice also, does not appear to be correct. Since the copy of the letter which is now showed to me by the petitioner dated 28th September, 2006 which is written by the Divisional Manager to the Commissioner for Workmen’s Compensation clearly shows that the petitioner company was aware of the number of the application. Inspite of that noting, though exparte order is passed, no application was made for certified copy of the exparte order. The said application was made in December, 2006 i.e. almost after three months from that date. In my view, the learned Commissioner has considered the application of the petitioner for condonation of delay and under the peculiar facts and circumstances, has come to the conclusion that the reason given by the petitioner for condonation of delay was not accepted and the delay, - 7 - therefore, according to the Commissioner was not satisfactorily explained by the petitioner. 7. The Apex Court in the case of Surya Dev Rai vs. Surya Dev Rai vs. Surya Dev Rai vs. Ram Chander Rai and others, reported in (2003) 6 SCC Ram Chander Rai and others, reported in (2003) 6 SCC Ram Chander Rai and others, reported in (2003) 6 SCC page 675 page 675 page 675 in para 12 has observed that this Court while exercising its discretion under Articles 226 and 227 of the Constitution of India should not interfere with the order passed by the lower court or by the Tribunal if the Court has exercised jurisdiction in accordance with law and even if wrong reasons are given, this Court should not interfere with the said order while exercising writ jurisdiction under Articles 226 and 227. The Apex Court in para 12 and in para 38 of has observed as under :- "12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an appellate court and step into reappreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. - 8 - 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: (1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate court within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory - 9 - jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in - 10 - travesty of justice or where such refusal itself would result in prolonging of the lis. (8). The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case." 8. There cannot be any doubt regarding the ratio laid down by the Apex court in the State of Haryana State of Haryana State of Haryana (supra) (supra) (supra) on which reliance is placed by the petitioner. However, there cannot be a strait-jacket formula of the general view for the purpose of accepting the - 11 - proposition canvassed by the Counsel for the petitioner. While considering the application for condonation of delay, the facts and circumstances in each case would be different. In my view, taking into consideration the peculiar fact that the respondent no.1 has been knocking doors of the Commissioner seeking compensation from the year 2001 and though notices were served, the petitioner which is an Insurance company and which is under the statutory obligation to make payment of dues of workmen who are seeking compensation, failed in its duty and legal obligation, the petitioner company has at its disposal financial resources and also a huge organisation, for the purpose of promptly filing reply to the applications which are filed for compensation. The very purpose of the Workmen’s Compensation Act is to ensure that the workmen who are entitled to get compensation, should not be made to wait endlessly for their just dues. The delay of 80 days under normal circumstances, therefore, may not appear to be huge delay but under the facts and circumstances of the present case, the respondent no.1 was seeking compensation on account of death of her son which had - 12 - taken place during the course of his employment in the year 2001. Eight years have passed and till today, as a result of dilatory tactics adopted by the petitioner, the respondent no.1 has not been in a position to get the just compensation. In view of these facts, in my view, no case is made out for interfering with the impugned order. 9. The Writ Petition is dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)