AJIT KUMAR YADAV Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) This appeal is directed against the order of the learned Single Judge of this Court in WP(C) No. 5229 of 2008 dated 11.12.2009. The writ petition was filed to challenge the order passed under the Workmen's Compensation Act by the Labour Commissioner. The learned Single Judge has held against the order of the Labour Commissioner, an appeal is provided under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') and therefore, the learned Single Judge was of the opinion that where there is a remedy provided under the Act, entertainment of a petition under Article 226 of the Constitution of India obviously would defeat the intended purpose of the Legislature. Therefore the writ petition was dismissed.

(3.) Per contra, learned Counsel for the State submitted that as and when there is an involvement of fundamental rights, the Rule of alternative remedy has been relaxed by the Courts in appropriate cases but this is not a case where such relaxation is called for because no fundamental right is involved as has been canvassed by the learned Counsel for the Appellant. The argument advanced by the learned Counsel for the State that no fundamental right can be said to be involved in the case because the case has been decided by the Labour Commissioner on merits after considering the provisions of law and in that view of the matter, if there is any procedural illegality or irregularity, which is not, therefore even if it is permitted to be present for the sake of argument, that would not engulf itself the ambit of fundamental right and therefore the application of law as rendered by the Supreme Court in the case of Himmatlal will not be available to the learned Counsel for the Appellant. The learned Counsel for the State further relied on a case decided by the Hon'ble Supreme Court in the matter of H.B. Gandhi and Ors. v. Gopi Nath and Sons and Ors., 1992 Supp2 SCC 312 wherein the Hon'ble Supreme Court has held that there are limits of exercise of jurisdiction under Article 226 of the Constitution and that power is not akin to the power of appeal i.e. the power of judicial review and the purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches on a conclusion which is correct in the eyes of the law or not. The re-appreciation of evidence under Article 226 of the Constitution is a matter which is not engulfed within the scope of Judicial review. It was urged that there being no such illegality indicated on merits and it is only on the preliminary ground that the arguments are advanced, that in view of the onerous provision of pre-deposit, filing of the appeal should not have been insisted. It cannot be said that it was the right approach of the Appellant and therefore entertainment of writ petition by the learned Single Judge was rightly refused.