CENTRAL ENGINEERING CORPORATION Vs. DORAI RAJ

JUDGEMENT

(1.) This is an appeal by the employer appellant under Section 30 of the Workmen's Compensation Act, 1923 (Act No. VIII of 1923) from an order of the Commissioner under the said Act, finding the employer-appellant liable to pay a compensation of Rs. 2,016/- to the workman who is the respondent in the present appeal.

(2.) The facts shortly are these; On May 9 1954, the workman-respondent was a welder under the employer appellant, the Central Engineering Corporation, the then contractor for the Hirakud Dam project represented by the Executive Engingeer, Quarry Division, Hirakud Colony. On the date of the incident at about 5 A. M. the workman-respondent met with an accident, while he was welding two plates in the crusher by the side of the belt in the circumstances stated by him. The workman-respondent got two injuries one on the shoulder blade and the another on the left arm which was completely disabled. After having been given necessary first-aid as an out-door patient, he was admitted into the Hirakud Hospital as an in door patient and he stayed there for 3 1 /2 months. Thereafter he submitted his claim under Section 10 of the Workmen's Compensation Act. The employer-appellant in due course, tiled an objection disclaiming liability to pay compensation on grounds stated in his objection filed. The Commissioner under the Workmen's Compensation Act considered, the claim on evidence. On behalf of the workman-respondent two witnesses were called including the workman-respondent himself P. W. 1 and one Pater Mathews P. W. 2. The employer appellant called only one witness being D. W. 1. the indoor doctor. On materials before the said Commissioner he held that personal injury was caused to the workman-respondent in the said accident arising out of and in the course of the employment under the said employer-appellant and that the employer-appellant was liable to pay compensation under the said Act. The basis on which the Commissioner arrives at the figure of Rs. 2,016/- was stated in his order under appeal, on his finding; that the workman was permanently disabled to the extent of 60 per cent. He therefore, assessed the compensation under schedule IV of the Workmen's Compensation Act. It is against this order that the present appeal has been filed by the employer-appellant.

(3.) Mr. G. Rath, the learned counsel appearing for the workman-respondent, took a preliminary point as to the maintainability of the appeal. His contention was that no certificate by the Com-misioner to the effect that the employer- appellant had deposited with him the amount payable under the order appealed against, having accompanied the memorandum of appeal as required by the third proviso to Section 30(1) of the said Act, the appeal did not lie, for according to him, the proviso is mandatory and not merely directory. My attention was drawn to the express language in the proviso that "no appeal shall lie unless . . " In support of his contention Mr. G. Rath cited before me a decision of the Calcutta High Court in B. P. Nandy v. General Manager, East India Rly-AIR 1954 Cal 453. Where the Chief Justice Chakra-varty delivering the judgment dealt with the principle underlying the third proviso in Section 30 (1) of the Act. The principle of Section 30 is that if the appeal be such that by it the workman's right to the compensation awarded to him is placed in jeopardy, security for the workman must be provided for by the deposit of the amount of compensation and such a deposit would be essential to the maintainability of the appeal. If on the other hand, the workman's right to the compensation awarded does not come into question in the appeal at all, there is no risk to the workman's getting the compensation awarded to him and there is thus no necessity for requiring anyone, preferring such an appeal to deposit the compensation money. In the present case, it was clearly an order in favour of the workman- respondent who was awarded by the Commissioner a compensation of lump sum of Rs. 2,016/-. The present appeal certainly places the workman's right to the said compensation awarded to him in jeopardy and therefore law requires that security for the workman must be provided for by the deposit of award amount Rupees 2016/-. Recently, on a question of interpretation of a similar provision in the Representation of the People Act, 1951 (Act 43 of 1951), as amended by Act 27 of 1956, namely Section 117 of the said Act, which provides that Government Treasury receipt. showing that the deposit of the required amount has been duly made, shall be enclosed with an election petition to be filed within certain time, in an Election Appeal filed in the High Court, Jagannath Dalai v Ramacnandra Nahak, (M. A. No. 184 of 1957 and O. J. C. No. 175 of 1957 (unre-ported) I expressed the view that Section 117 is mandatory. The question whether Section 117 is mandatory or directory was clearly explained by their Lordships of the Supreme Court in Kamaraja Nadar v, Kunju Thevar, 1958 SCJ 680: (AIR 1958 SC 687) where their Lordships while dealing with the essential requirements for validity of a deposit under Section 117 of the Representation of the People Act, 1951, made it clear that where there was no Government security deposit receipt at all enclosed with the election petition, the appeal shall he dismissed on that ground alone. This was also on the principle that when the election of a sitting candidate was being challenged, the election petition was placing such candidate in jeopardy for extraneous reasons; and there must be security for costs at such election petition so that frivolous election petition of any kind likely to be instituted for harassing the sitting candidate may be discouraged. I reiterate the same view also in the context of the third proviso to Section 30 (1) of the Workman's Compensation Act. My view is further strengthened by the observations of the Chief Justice Chakra-vartty in the Calcutta case cited above. It is needless to say that the mandatory character of such provisions is based on sound reasoning and it is not without any purpose that the Legislature makes these provisions expressly mandatory couched in such language in the way it has been done in the third proviso to Section 30(1) of the Workmen's Compensation Act.