1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.2609 of 2011 & M.P.(MD).No.1 of 2011 Nallappa Reddiar .. Petitioner Vs. 1. The Commissioner for Workmen Compensation and Deputy Commissioner of Labour, Trichirappalli. 2. Rengaraj 3. Ganesan .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari calling for the records relating to order passed in W.C.I.A.No.37 of 2010 in W.C.No.445 of 2004, dated 12.09.2010 on the file of the first respondent herein and quash the same. For Petitioner : Mr.S.Sairaman For Respondents : Mr.T.S.Md.Mohideen AGP for R1 Mr.K.Samidurai fo R2 ORDER The petitioner has come forward to challenge the order passed by the first respondent, the Commissioner for Workmen Compensation in W.C.I.A. No.37 of 2010 in W.C.No.445 of 2004 dated 12.09.2010 and seeks to set aside the same. 2. When the matter came up on 04.03.2011, this Court was not inclined to admit the writ petition and the matter was adjourned to 08.03.2011 and on that day another learned Judge ordered notice to the respondents along with private notice. 3. It is seen from the records that the second respondent filed a workman compensation claim against the petitioner and one Ganesan in W.C.No.445 of 2004. The case after notice to the parties was finally determined in favour of the second respondent. The Commissioner ordered compensation for Rs.1,76,803/- along with interest at the rate of 12% for the injury suffered by him while cleaning the Gobar Gas tank in the writ petitioner's premises. The cleaning work was handed over to the third respondent, who has supplied the petitioner as a labour for cleaning. Along with the second respondent, three other persons were https://hcservices.ecourts.gov.in/hcservices/ 2 involved on 12.7.2003 and at that time, the outer value of the well given away and the petitioner fell in the well and had knee fracture injury. Initially he had admitted in Thuriayoor Government Hospital and given treatment and thereafter, he was taken to Tiruchy Government Hospital and taken treatment as inpatient. He was discharged on 04.09.2003. Hence, he claimed compensation against the writ petitioner. 4. On notice in the W.C. case, the third respondent herein did not file any objection. The writ petitioner, who made an objection stating that he did not engage the second respondent in the Gobar Gas Plant and and he has no connection with the second respondent and the wastage in the Gobar Gas Plant has been sold to the third respondent. The second and third respondents belong to the same community and due to conspiracy, they made the complaint and the third respondent was not an employee engaged by him and there was no employee -employer relationship between them. 5. Even after the evidence of second respondent was recorded, the writ petitioner did not cooperate with the trial despite the matter was adjourned 9 times and when it was posted for his evidence on 25.09.2009, for a period of four months he did not file any documents and therefore, despite opportunity given he has not utilized the opportunity and believing the evidence of the second respondent, the decision was made by the order, dated 19.10.2009. 6. It is seen from the records that the copy of the order was forwarded to the writ petitioner by registered post with acknowledgment due. The petitioner neither took any steps to implement the order, nor challenged the same by way of an appeal before this Court under Section 30 of the workmen compensation Act, 1923 (hereinafter referred as the Act). But, erroneously, he filed an application to set aside the order after a period of 7 months. The authority by the impugned order, dated 10.09.2010, stated that such an application is not maintainable as the order has been passed on merits and not an exparte order and there is no provision for setting aside the order passed on merits. Challenging the said order, the writ petition came to be filed. 7. Such a writ petition is not maintainable when the Act provides for a regular appeal to this Court under Section 30 of the Act, the petitioner cannot by pass such remedy. It may be due to the reason that such appeal will have to be filed after depositing the entire amount and the petitioner wants to short circuit such procedure by filing the writ petition. Already this Court in several case has held such a writ petition ought not to have entertained, when there is an alternative remedy. 8. When an Act provides for appeal remedy, the aggrieved party has to exercise the power under the Act and the writ jurisdiction cannot be used to forestall the appeal remedy provided under the Act. It is necessary to refer to the Judgment of the Honourable Supreme Court in RAJ KUMAR SHIVHARE v. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT AND ANOTHER reported in 2010 4 SCC 772, wherein it was held that even though the appellate remedy provides for a conditional pre deposit that by itself cannot be a ground to reject that forum and one can move the high https://hcservices.ecourts.gov.in/hcservices/ 3 Court under Article 226 of the constitution of India. In paragraphs 30 to 32 of the said judgment it has been held as follows; "30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L.Chandra Kumar v. Union of India. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre- deposit of penalty by the Appellate Tribunal. 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 9. In view of the above, the writ petition stands dismissed. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar (Crl.Side) /True Copy/ Sub Assistant Registrar To The Commissioner for Workmen Compensation and Deputy Commissioner of Labour, Trichirappalli. +1 CC to Mr.V.Illanchezian, Advocate (SR.No.36179) +1 CC to Special Government Pleader (SR.No.35850) Order made in W.P.(MD)No.2609 of 2011 & M.P.(MD).No.1 of 2011 jikr 14.10.2011 NSV/3.11.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/