Case: Sitaram Ramcharan &amp; Others Vs. M.N. Nagrashna

compensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by S. 2(1) applies to the notice of claim which a workman has to give to his employer; it had no reference to the proceedings which a workman would institute before the tribunal claiming to recover the said compensation. The notice of claim had to be served on the employer within six months after the date of the accident, and after serving such notice proceedings had to be initiated before the tribunal claiming compensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the notice of claim on the employer there was no question of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of compensation. In fact, for the institution of such proceedings there was no statutory limitation at all.18. Let us now turn to S. 10 of our Workmens Compensation Act. Section 10(1) as it originally stood prescribed a period of six months for the making of the claim for compensation. It also required that notice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to S. 10 (1) lays down that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice had not been given or the claim had not been instituted in due time as provided by the sub-section if he is satisfied that the failure so to give notice or to institute the claim as the case may be was due to sufficient cause. It appears that in construing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso (b) of S. 2 (1) of the English Act. It is open to argument whether that is really so; but, in any case, after S. 10 was amended in 1938 the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for compensation in any case notwithstanding that notice has not been given, or the claim has not been preferred before it in due time as provided by S. 10, sub-s. (1) if he is satisfied that the failure so to give the notice or prefer the claim as the case may be was due to sufficient cause. It is significant that S. 10 (1) requires the notice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year; but that is another matter. Thus the position under S. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for compensation before the Commissioner; and so there can be no anology between the limitation thus prescribed and the limitation prescribed by S. 2 (1) of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd. 1952-1 Lab LJ 490: (AIR 1953 Cal 74 ) (supra), where the learned judges held that the decision in Lingleys case 1921-1 KB 655 (supra), was applicable to the case before them, their attention was not drawn to the material change made by the amendment of S. 10 of the Indian Act. But the view expressed by the court in that case on the point of law is clearly obiter. The actual decision was that no sufficient cause had been shown by the claimant even on the liberal construction of the proviso, and so the order directing the employer to pay compensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were concerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are concerned.19. The proviso with which we are concerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys case 1921-1 KB 655 (supra), can have no application to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Phadke has fairly conceded that there is consensus of judicial opinion on the question of the construction of S. 5.It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (Vide Ram Narain Joshi v. Parmeswar Narain Mahta, ILR 30 Cal 309 (PC).Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between 2-5-1952, and the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us.20. We would like to add that the learned Attorney-General had raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in considering the total value of the consolidated appeals for the purpose of granting certificate under Art. 133. We have, however, not thought it necessary to consider this argument.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is clear that this award proceeded on the assumption that the relevant provisions of the Factories Act did not apply to the appellants. On May 2, 1952, the appellate decision delivered by the Chief Judge of the Court of Small Causes in the case of Ruby Mills; vide Bombay Labour Gazette dated January 1953. Vol. 32, No. 5, p. 521, however, construed S. 70 of the Bombay Shops and Establishments Act and held that the employees falling under the provisions of the said section were entitled to claim overtime wages under S. 59 of the Factories Act. In other words, this decision for the first time properly construed S. 70 of the Bombay Act and held that the said section in substance extended the provisions of S. 59 of the Factories Act to the employees covered by S.do not propose to deal with this argument because, as we will presently point out, we have come to the conclusion that the appellants would fail even if we were to uphold Mr. Phadkes presentlatter conclusion is a finding on a question of fact and its propriety or validity could not have been challenged before the High Court and cannot be questioned before us in the present appeals.Now in order to appreciate the effect of the decision in the case of Lingley,KB 655 (supra), it would be relevant to emphasise that in that case the Court of Appeal was really giving effect to an earlier decision of the House of Lords in Powellv. Main Colliery Co. Ltd. 1900 AC 366,and, as the judgments of all the learned judges indicate, they were following the said decision with some reluctance. In the case of Powell, 1900 AC 366 (supra), the House of Lords had held that the claim for compensation specified in S. 2 (1) of the English Act does not mean initiation of the proceedings before the tribunal by which compensation is to be assessed, but a notice of claim of compensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by S. 2(1) applies to the notice of claim which a workman has to give to his employer; it had no reference to the proceedings which a workman would institute before the tribunal claiming to recover the said compensation. The notice of claim had to be served on the employer within six months after the date of the accident, and after serving such notice proceedings had to be initiated before the tribunal claiming compensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the notice of claim on the employer there was no question of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of compensation. In fact, for the institution of such proceedings there was no statutory limitation at all.18. Let us now turn to S. 10 of our Workmens Compensation Act. Section 10(1) as it originally stood prescribed a period of six months for the making of the claim for compensation. It also required that notice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to S. 10 (1) lays down that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice had not been given or the claim had not been instituted in due time as provided by theif he is satisfied that the failure so to give notice or to institute the claim as the case may be was due to sufficient cause. It appears that in construing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso (b) of S. 2 (1) of the English Act. It is open to argument whether that is really so; but, in any case, after S. 10 was amended in 1938 the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for compensation in any case notwithstanding that notice has not been given, or the claim has not been preferred before it in due time as provided by S. 10,(1) if he is satisfied that the failure so to give the notice or prefer the claim as the case may be was due to sufficient cause. It is significant that S. 10 (1) requires the notice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year; but that is another matter. Thus the position under S. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for compensation before the Commissioner; and so there can be no anology between the limitation thus prescribed and the limitation prescribed by S. 2 (1) of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd.Lab LJ 490: (AIR 1953 Cal 74  ) (supra), where the learned judges held that the decision in Lingleys caseKB 655 (supra), was applicable to the case before them, their attention was not drawn to the material change made by the amendment of S. 10 of the Indian Act. But the view expressed by the court in that case on the point of law is clearly obiter. The actual decision was that no sufficient cause had been shown by the claimant even on the liberal construction of the proviso, and so the order directing the employer to pay compensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were concerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are concerned.19. The proviso with which we are concerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys caseKB 655 (supra), can have no application to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Phadke has fairly conceded that there is consensus of judicial opinion on the question of the construction of S. 5.It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (Vide Ram Narain Joshi v. Parmeswar Narain Mahta, ILR 30 Cal 309 (PC).Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction betweenand the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us.20. We would like to add that the learnedhad raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in considering the total value of the consolidated appeals for the purpose of granting certificate under Art. 133. We have, however, not thought it necessary to consider this argument.