BANTO BHASKAR RAO Vs. PURNA SUNA

JUDGEMENT

(1.) This writ petition has been filed for a declaration that third proviso to section 30 (1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') is ultra vires of the Constitution of India and for a further declaration that despite availability of an alternative statutory remedy under the Act the petitioner has a legal right to invoke the writ jurisdiction and for quashing the award passed by the Commissioner for Workmen's Compensation at Annexure 3.

(2.) The case of the petitioner is that he is a share cropper and earns his livelihood by taking on lease small parcels of land belonging to the different owners of his locality and by cultivating the same for specific season or periods. He had employed one Gadan Chhatria alias Suna on casual basis as and when the necessity arose for help in the matter of cultivation in respect of the land taken on lease. The term of employment was purely casual, intermittent and on daily basis. During the year 1989 the said Gadan was being paid Rs. 10 per day and such wages were paid after the days work. Four to five days prior to 14.3.1989 the petitioner had engaged the said Gadan in his field but he was not seen by any one thereafter and on subsequent inquiry it was found that the dead body of Gadan was lying in a nearby field. In view of such unnatural death of Gadan, Attabira P.S. Case No. 52 of 1989 was registered suo motu by the police indicating therein that between 14.3.89 and 18.3.1989 the death had occurred and a case was registered for the offences committed under sections 379, 304-A, 201 of the Indian Penal Code. When the matter stood thus, the petitioner was called by the Assistant Labour Officer, Bargarh in the month of May, 1989 to reply to the grievance made by the mother of Gadan. The total arrear wages were calculated at Rs. 2,000 and the petitioner also paid the same in presence of Assistant Labour Commissioner, Bargarh. Thereafter, the father of Gadan, i.e., the opposite party No. 1 filed W.C. Case No. 5 of 1989 against the petitioner claiming compensation before the opposite party No. 2. The claim was based on the allegation that Gadan was a workman employed by petitioner in July, 1988 and in course of his employment he met his death on 14.3.1989. The further allegations in the petition were that Gadan had been engaged as house servant under the petitioner and was also asked to do some agricultural work. On 14.3.1989 while he (Gadan) was watering the agricultural land of the petitioner during evening hours, he was murdered and his death was detected 4 to 5 days thereafter. Since Gadan was being paid at Rs. 360 per month and was aged about 15 years at the time of his death, a lump sum compensation of Rs. 32,589.72 was claimed. The petitioner appeared in the said W.C. case and contested denying the allegations made in the petition and his liability to pay any compensation only on the point that neither he was employer nor Gadan was a workman under him. Opposite party No. 2, however, passed an award in favour of the opposite party No. 1 directing the petitioner to deposit compensation of Rs. 45,312 within a period of 30 days from the date of receipt of the order. The said award is annexed to the writ petition as Annexure 3.

(3.) This writ petition has been filed instead of filing an appeal challenging the provision contained in section 30, subsection (1) third proviso which prescribes for depositing the compensation amount and obtaining a certificate for the purpose of filing an appeal. In para 16 of the writ petition it is contended that the statutory provision, namely, third proviso to section 30 of the Act is ultra vires of the Constitution as it does not enable the petitioner to challenge the perverse award accusing him as murderer and as such the provision is hit by the equality clause of Article 14 of the Constitution and is also contrary to the provisions of Articles 19 (1) (g) and 21 of the Constitution of India. It is also contended in para 17 of the writ petition that the discretionary remedy available to the petitioner under Articles 226 and 227 of the Constitution of India should be made available to him despite the fact that appeal is provided for under the statute which cannot be resorted to by the petitioner due to his poverty and the effect of which would be that petitioner will not be in a position to clear himself of the finding or murder against him. In para 18 of the writ petition it is also contended that there is no law or provision made by the Central Government or State Government for giving aid to an indigent person in the matter of deposit of amount awarded against him for maintaining an appeal. Though the Civil Procedure Code and other Acts provide for non-payment of court-fee by an indigent person, so far as the Act is concerned, a statutory bar has been imposed which also applies to the indigent persons and, therefore, a man without any means has to suffer an award under the provisions of the Act and, therefore, such provision which is opposed to the principle of equality and provisions incorporated in Articles 19 (1) (g) and 21 of the Constitution. No counter has been filed either by the opposite party No. 1 or by the opposite party No. 3.