C. P. NO. D-1829 OF 2012
Present:
Mr. Justice S. Hassan Azhar Rizvi.
Mr. Justice Muhammad Junaid Ghaffar.
M/S PIZZA PIPER AND ANOTHER…………..……….…..PETITIONERS
VERSUS
SINDH LABOUR APPELLATE TRIBUNAL
AND OTHERS…………………………….………………..RESPONDENTS
C. P. NO. D-1486 OF 2012
.
MUHAMMAD HARIS QURESHI…………………..…………PETITIONER
VERSUS
THE DEPUTY COMMISSIONER HYDERABAD
AND OTHERS………………………..……………………RESPONDENTS
Date of hearing: 02.04.2014
Date of judgment: 15.04.2014
Petitioner: Through Syed Muhammad Saulat Rizvi and Faheem Hussain Panhwar, Advocates in CP No 1829 of 2012 and for Respondent No 6 in CP No 1486 of 2012.
Official respondents: Through Mr. Allah Bachayo Soomro, Additional A.G. Sindh.
Respondent No. 3 Through Mr. Muhammad Nishat Warsi, Advocate and for Petitioner in CP No 1486/2012
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J U D G M E N T
Muhammad Junaid Ghaffar, J.- Through this common judgment we intend to dispose of the aforesaid two petitions. The petitioners in C.P. No.D-1829/2012 are respondent No.6 and 7 in C.P. No.D-1486/2012, (to be referred as “Petitioners” hereinafter throughout the judgment) whereas the petitioner in C.P. No.D-1486/2012 is respondent No.3 in C.P. No.D-1829/2012 (to be referred as “Respondents” hereinafter throughout the judgment). The petitioners have impugned the order / decision dated 28.03.2012, passed by the Sindh Labour Appellate Tribunal, Camp at Hyderabad, (“Tribunal”) in Appeal No.CW11-208 of 2011, whereas the respondent has sought enforcement of the order passed by respondent No.4, the Commissioner, Workmen Compensation, (“Commissioner”), dated 18.01.2011 and also sought further direction against Petitioners to comply with the orders passed by respondent No.4 in favor of the respondent.
2. Briefly, the facts are that the petitioners are engaged in the business of food particularly making and selling Pizza and the respondent was engaged as an employee in the year 2008 as a cashier. It is stated that in the year 2009, an incident occurred at the establishment of the petitioner, wherein a terrorist attack was made and due to such attack, the glass windows / doors were crashed and a piece of glass directly hit the eye of respondent resulting in total loss of his eye. It is further stated that the petitioner extended every possible help to the respondent and even promised that if he is able to get a visa for his treatment in USA and provided there is surety of restoration of his lost eyesight, the petitioner would bear all such expenses of his treatment, however respondent was unable to obtain visa for his treatment in USA. It is further stated that the petitioner was served with a notice of auction allegedly issued in Execution Application No.3 of 2011 against a decretal amount of Rs.23,69,882/- by the Commissioner. It is the case of the petitioner that prior to this notice of execution application they were not in knowledge of any proceedings of execution purportedly pending before the said Commissioner. The petitioner thereafter on 30.06.2011 approached the Commissioner for obtaining certified true copies of the R & Ps of the said proceedings, enabling them to proceed further in the matter in accordance with law. Alongwith this, the petitioner had also filed an application for recalling the exparte order and suspension of the auction proceedings. However, such applications of the petitioner were neither entertained nor any order for rejection of such applications was ever passed by the Commissioner. Thereafter, the petitioner preferred an appeal before the Tribunal, which has been decided through the impugned order. The Tribunal has though partly accepted the contention of the Petitioner, that the petitioner was within its right to obtain the certified copies of the R&P and so also entitled to file any application(s), including the application for recalling the ex-parte order passed by the Commissioner, but has also directed to deposit the decretal amount and has directed the Commissioner to entertain such request of the petitioner only after deposit of the aforesaid amount. The petitioner being aggrieved with such qualified directions has impugned the said order in the instant petition. On the other hand the respondent has sought enforcement of the order passed by the Commissioner dated 18.01.2011 for the payment of the amount awarded as compensation by the Commissioner.
4. Mr. Syed Muhammad Saulat Rizvi, learned Counsel for the petitioner contended that the learned Tribunal while passing the impugned order has seriously erred in law and facts, in as much as it has observed that the learned Commissioner was duty bound to receive application for certified true copies as well as application for recalling the orders; that such refusal on the part of the learned Commissioner was illegal and unwarranted; that the learned Commissioner was also duty bound after receiving such applications to pass appropriate orders thereon; but simultaneously, the learned Tribunal has further observed and directed that the appeal preferred before this Tribunal was required to be filed after depositing the decretal amount with the office of the learned Commissioner as provided under the proviso to sub-section (1) of Section 30 of the Workmen’s Compensation Act, 1923 (“1923 Act”). Learned Counsel submitted that the petitioner is aggrieved by this part of the order whereby the petitioner has been directed to deposit the decretal amount and thereafter pursue its matter before the learned Commissioner for obtaining the certified true copies and so also the decision on its application for recalling the exparte order. Learned Counsel further referred to section 2 sub-section (1) (c) of the 1923 Act and contended that the respondent can only seek compensation for the loss of his eye as permissible under the 1923 Act and per learned Counsel, in terms of Schedule-I (S. No. 24) of the said Act, the maximum compensation provided for is 40% of the last of the earning capacity. Learned Counsel further contended that even otherwise, the maximum compensation provided for under the 1923 Act is Rs.200,000/- under the Schedule-IV of the said Act. In view of such position, learned Counsel submitted that the impugned order be modified to the extent of a pre-deposit of the decretal amount before the learned Commissioner and thereafter the learned Commissioner be directed to decide the applications pending before it for which the learned Tribunal has also given directions through the impugned order.
5. Conversely, Mr. Muhammad Nishat Warsi, learned Counsel for the respondent contended that the order passed by the learned Tribunal was correct in law and was liable to be implemented first with regard to the deposit of the decretal amount before any further proceedings could take place before the learned Commissioner. Learned Counsel further contended that it is a mandatory requirement in term of section 30 (1)(a) of the 1923 Act and the third proviso thereof, to deposit the decretal amount before any appeal could be heard and decided by the Tribunal against an order passed by the Commissioner. Learned Counsel finally submitted that the grounds so urged in the instant petition were never taken up or argued before the learned Tribunal and hence cannot be agitated in the instant petition by the petitioner.
6. The learned Additional A.G. has supported the arguments advanced by the learned Counsel for the respondent and has contended that the deposit of the decretal amount is mandatory and no appeal could be entertained by the Tribunal without such deposit.
7. We have heard both the learned Counsel and the learned Additional A.G. and have perused the record with the assistance of all the learned Counsel. It appears that the controversy which needs to be decided by us is, that as to whether, the directions of the Tribunal regarding pre-deposit of the decretal amount by the petitioner before which any application filed by the petitioner could be heard and decided by the learned Commissioner can be sustained in the given facts and circumstances of the instant case. It must be kept in mind that the Tribunal has passed these directions at the time of deciding the appeal of the Petitioner and had not raised any such objection at the time of filing and or institution of the appeal nor the petitioner was ever put to notice to comply with such directions before the appeal could be heard and decided by the Tribunal. For a better understanding of the issue in hand it would be advantageous to reproduce the operative part of the impugned order, which is in the following terms:-
“Without going into the merits of the case, I am of the view that the failure on the part of the learned Commissioner to receive applications for certified copy as well as recalling orders is totally illegal, unwarranted and it is the fundamental right of the appellants to get certified copies of the record available with the learned Commissioner and to file application of any kind as per advise of the Counsel. The learned Commissioner is duty bound to receive such application and to pass appropriate orders, which is lacking in this matter and I am of the view that the same act of learned Commissioner is without lawful authority and jurisdiction, but another thing which I have noted that the appellants if filed appeal before this Tribunal they have to deposit the decretal amount with the office of the learned Commissioner as provided in the proviso to Sub-section (1) of Section 30 of the Act, 1923 therefore, I would direct the learned Commissioner to accept (receive) applications whatsoever in nature and to pass appropriate order according to law, but looking to the circumstances of the case, filing of such applications shall be subjected to deposit the decretal amount within fifteen days with the office of the learned Commissioner either through pay order or in the shape of bank guarantee, as provided under the above law and learned Commissioner is directed to decide all such applications within thirty days to the filing of such application on merits after giving full opportunity to both parties to lead their evidence and the appellants are directed to prefer any of the application within fifteen days of this decision, failing in doing so, the learned Commissioner may follow the law in respect of execution as well as the auction process.”
9. From the perusal of the above operative part, it is clear that the learned Tribunal did came to the conclusion that the failure on the part of the learned Commissioner to receive applications for certified true copy as well as recalling orders, is totally illegal and unwarranted and further that it is a fundamental right of the petitioner to get the certified true copies of the record so available with the learned Commissioner and to further file application of any kind. The learned Tribunal also observed that the learned Commissioner is duty bound to receive such applications and to pass appropriate orders thereon and concluded that the said act of the learned Commissioner is without lawful authority and jurisdiction. After coming to such conclusion, the learned Tribunal went on to further observe that for filing an appeal before the Tribunal, the petitioner was required to deposit the decretal amount with the office of the learned Commissioner, as provided in the proviso to sub-section (1) of section 30 of the 1923 Act and therefore, directed the Commissioner to accept / receive the applications being preferred by the petitioner and pass appropriate orders thereon, but filing of such applications was subject to deposit of the decretal amount with the office of the learned Commissioner. Here it would be advantageous to refer to the provisions of section 30(1) of the 1923 Act, which reads as under:-
“30. Appeals.—
(1) An appeal shall lie to the [Tribunal] from the following orders of a Commissioner, namely:-
(a) an order awarding as compensation a lump sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the dependents of a deceased workman, or disallowing any claim of a person alleging himself to be such dependent.
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions.
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1[Provided further, that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.]
10. From the perusal of the above provision as well as the third proviso it appears that the condition for deposit of the decretal amount is only in respect of an order passed under sub-section 1(a) of section 30 of the 1923 Act, which provides that no appeal by an employer shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. It is not in respect of other orders as referred to or described from (a) to (e) of sub section (1) of section 30 of the 1923 Act. Whereas, in the instant matter the petitioner was aggrieved only to that extent and conduct of the Commissioner, whereby the applications filed by the petitioner for obtaining certified copies of the record and for recalling of the ex-parte order were not even acknowledged or received. It also appears from the record and from the impugned order that the learned Tribunal at the time of the institution of the appeal, as well as at the time of hearing of the appeal, had not raised any such objection with regard to the compliance of the third proviso to sub-section (1) of section 30 of the 1923 Act, as referred to in the impugned order. If such was a condition precedent for the institution of an appeal, then the same ought to have been implemented and or enforced at the time of the institution of the appeal and not while passing the order on such appeal. In the instant matter the Tribunal has seriously erred in law in passing the impugned order, whereby though granting the relief prayed for by the petitioner, has also attached to it a condition for deposit of the decretal amount, which could have only been done before the institution or at the most, before hearing of the appeal and not at the time of passing of order on such appeal, and that too without putting the appellant on any such notice. Therefore, in our opinion, this part of the order of the learned Tribunal is not sustainable and is against the provisions of the 1923 Act. Secondly, we have also perused the material available on record and so also the impugned order and it is further observed that in fact the appeal filed by the petitioner before the learned Tribunal was not with regard to the merits of the case, rather was only in respect of the refusal of the learned Commissioner to acknowledge receipt of applications for certified true copies as well as application for recalling of the exparte order. This observation is further strengthened from the impugned order itself, wherein the learned Tribunal has not decided the appeal on merits nor has dealt with the merits of the case and has only agreed to the extent that the learned Commissioner was not justified in refusing to accept the applications for obtaining certified true copies as well as for recalling exparte order. In all fairness, in our view, the said appeal preferred before the learned Tribunal was not an appeal, which could be termed as an appeal covered by section 30(1) (a) of the 1923 Act and, therefore, the condition prescribed under the third proviso thereon was not applicable in the given facts and circumstances of the instant case. The said proviso could only be invoked by the learned Tribunal firstly at the time of filing and or institution of the appeal before it, and secondly it is applicable only in respect of an order, which is exclusively an order passed under section 30(1) (a) of the 1923 Act and not otherwise.
11. Though, the question that in such a situation, whether the appeal in respect of the above issue was even maintainable or not before the Tribunal in view of the specific provisions of section 30(1) of the 1923 Act and the type of orders mentioned from (a) to (e) thereon has not been raised by the learned Counsel for the respondent, however, we would here like to answer the same as well. It must be appreciated that precisely the petitioner was aggrieved by the act of the learned Commissioner whereby he had refused to acknowledge receipt of certain applications filed by the petitioner, and even if it is held that no appeal lies against such an order of the Commissioner as it does not amounts to passing of any order(s) as described in (a) to (e) of sub section (1) of section 30 of the 1923 Act, then, perhaps the petitioner’s appeal if preferred before the Tribunal was liable to be returned or dismissed as not being maintainable and against such refusal, the petitioner had only one remedy and that was by way of filing of a Constitutional petition. In such circumstances the petitioner was not required to deposit the decretal amount before filing of any petition before this Court, and hence in view of such position and for the fact that now the order of the Learned Tribunal has been challenged before us in the Constitutional jurisdiction of this Court, we are of the view that even otherwise the petitioner could not have been compelled to deposit the decretal amount before filing of any applications before the learned Commissioner for obtaining certified copies and or for any other purposes.
12. In view of hereinabove, we are of the view that the impugned order, insofar as it has directed the petitioner to pre-deposit the decretal amount, is not sustainable and is accordingly set aside to that extent and we accordingly modify it by holding that the learned Commissioner shall accept/receive applications (if not already on record) with regard to issuance of certified copies and or for recalling of the ex-parte order, or of any other nature and thereafter pass appropriate orders in accordance with law after providing opportunity of hearing to all concerned within a maximum period of sixty (60) days from the date of receipt of this order and shall not demand / direct the petitioner to deposit the decretal amount in the shape of pay order or bank guarantee as directed by the learned Tribunal. On passing of such orders by the learned Commissioner, any of the parties, if aggrieved, may seek further remedy in accordance with law, and as advised.
12. In view of hereinabove CP No. 1829/2012 is allowed as above, whereas CP No. 1486/2012 has become infructuous and is accordingly disposed of.
Dated: 15.04.2014
JUDGE
JUDGE