Sr. No. 04
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 182/2008
IA No. 254/2008
Officer Commanding, Appellant(s)/Petitioner(s)
…..
114 R.C.C. Bhaderwah,
C/o 56 APO
Through: Mr. Suneel Malhotra, CGSC
Vs
.…. Respondent(s)
Ali Mohd.
S/o Ghulam Rasool
R/o Bhaderwah Tehsil Bhaderwah,
District Doda
Through:
Coram: MOHD. YOUSUF WANI, JUDGE
HON’BLE MR. JUSTICE
ORDER
31.05.2024
1. Impugned in the instant appeal filed in terms of the provisions of Section
30 (1) of the Workmen Compensation Act (now Employees
’
Compensation Act),
1923, (hereinafter referred to as the ‘Act’, for short),
is the order dated 15.07.2008 passed by learned Authority under the
Workmen Compensation Act (Assistant Labour Commissioner) Doda
’s
(hereinafter referred to as the Commissioner, for short), whereby learned
Commissioner while disposing of a claim petition filed by the respondent-
Ali Mohd. S/o Ghulam Rasool R/o Bhaderwah Tehsil, Bhaderwah and
District, Doda, has awarded a total compensation amounting to
Rs. 84,855/- in favour of the said respondent-employee in respect of the
2 MA No. 182/2008
injury received by him in the course of his employment under the
appellant.
2. The impugned award has been assailed mainly on the grounds that learned
Commissioner has not worked out the compensation on the basis of a
legal criteria having regard to the injury/disablement suffered by the
respondent-employee and percentage thereof; that learned Commissioner
has not ascertained the age and the rate of wages of the respondent-
employee and that the Union of India, being a necessary party in the
application was not arrayed as such by the respondent.
3. The respondent upon being put to notice did not choose to appear which
led to the initiation of ex-parte proceedings against him.
4. I have heard the learned counsel for the appellant on admission.
5.
Learned counsel, in support of his contentions reiterated the stand taken
by him in the memo of appeal and submitted that substantial question of
law is involved in the appeal which justifies the formulation of such
question and hearing of the appeal on merits. The learned counsel, in
addition, to the grounds already taken by him in his memo of appeal
submitted that the respondent-employee, after his recovery, resumed his
duty and, thereafter, continued to work with the organization of the
appellant as a labour. He further contended that the respondent-employee
had not received any fatal injury which warranted the award of
compensation and that too on a higher side.
6.
Learned counsel placed reliance on the judgment cited as CIMA No.
119/2009 decided on 06.06.2012 titled,
“Divisional Manager vs. Mohd.
3 MA No. 182/2008
Insurance Co.
and 2009 ACJ 2742 titled,
Hanief & Anr.” “Oriental
Ltd. vs. Mohd. Nasir & Anr.”
7.
On a perusal of the memo of appeal as well as the impugned order passed
by the learned Commissioner, I do not find that any substantial question
of law is involved in the matter, which justifies adjudication.
8. It reveals from the impugned award/order dated 15.07.2008 that
respondent-employee produced the evidence before learned
Commissioner to the effect that he received a scheduled injury prescribing
for loss of earning capacity. The respondent-employee as well as the
Medical Officer, Doctor-Mohd. Rafi of the rank of Orthopaedic Surgeon,
who had treated the respondent-employee and issued certificate were
examined by learned Commissioner on the application. In his statement,
the Doctor, deposed that the respondent-employee has suffered head
injury with cervical spine injury of C5,C6 subluxaltion with nonoparcesis
of right of upper limb and fracture of scapula neck. These injuries made
him permanently disabled and incapable of performing any kind of hard
or manual labour. The said Medical Officer, in his statement recorded that
respondent-employee has suffered 45% of physical disability. The
Commissioner has taken the age of the respondent-employee as 45 years
on the basis of medical record and his minimum wages as Rs. 70/- per day
as fixed by the Government. The Commissioner has stated that on account
of scheduled injury, the respondent-employee had lost 30% of earning
capacity.
9. I have gone through the record of learned Authority below which reveals
that the order impugned has been passed upon consideration of the
4 MA No. 182/2008
evidence, direct and documentary, especially, as regards, the injury
suffered by the applicant, his age and the amount of wages he was
receiving.
10. In the backdrop of the aforementioned discussion, I do not think that there
is involvement of any substantial question of law in the matter, which
justifies the admission of the appeal for its adjudication.
11. The first proviso of Section 30 (1) of the Act states that no appeal shall lie
against any order unless a substantial question of law is involved. The
said proviso has been incorporated in the section with the object that
workers shall not be dragged into unending litigation in the highest
forums.
12. A period of more than fifteen years has lapsed since the passing of the
impugned award. The facts and circumstances of the case relied upon by
the learned counsel for the appellant are distinguishable from the facts and
circumstances of the present cases.
13. In view of the above discussion, the instant appeal is dismissed. The
award amount, if not having been already released in favour of the
respondent-employee, shall be immediately released in his favour
wherever deposited. The record of the Authority below shall be sent back
immediately along with a copy of this order.
14. Disposed of.
(A (Mohd. Yousuf Wani)
Judge
Jammu
31.05.2024
Meenakshi