- (1.) AMITAVA Lala, J. This appeal has been heard on informal papers by consent of the parties even at the stage of admission. The parties at variance contended before this Court with regard to first proviso to Section 21 of the Workmen's Compensation Act, 1923 as follows : "21. Venue of proceedings and transfer- [ (1) Where any matter under this Act is to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before the ?ommissioner for the area in which- (a) the accident took place which resulted in the injury; or (b) the workman or in case of his death, the dependant claiming the compensation ordinarily resides; or (c) the employer has his registered Office: Provided that no matter shall be proceeded before or by a Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner and prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "
(2.) SRI Amit Manohar, learned Counsel appearing in support of the appellant contended before this Court that non-service of notice by the Commissioner upon the Commissioner having jurisdiction over the area in which the accident took place is fatal and as such the order which has been passed by the Commissioner is without jurisdiction. In support of his contention he wanted to rely upon a Single Bench decision to establish the persuasive value of the same reported in 2006 (108) FLR 351, M/s Chawla Techno Construction Ltd. andanotherv. State of U. P. and others. Although the question of applicability of proviso under Section 21 of the Actarose in the proceeding but by and large the Court passed an order considering the question of maintainability of the writ petition following the Su-preme Court judgment in 1988 (8) SCC 1, Whirlpool Corporation v. Registrar of Trade Marks. We are of view that in Whirlpool Corporation case (supra) Supreme Court says that in four occasions writ lies irrespective of alternative remedy such as fundamental right, principle of natural justice, vires and jurisdiction, which has got nothing to do with regard to judicial order to be passed by the Court. Once a Commissioner passeeha judicial order under the Workmen's Compensation Act. an appeal against such order will be heard by the Appellate Court on the basis of the Workmen's Compensation Act, 1923 itself. Mr. Manish Tandon, learned Counsel appearing for the respondents con tended before this Court on the basis of the recent Supreme Court judgment reported in 2008 (1) TAC 439 (SC), Morgina Begum v. Managing Director, Hanuma Plantation Ltd. , that Section 21 (1) (b) clearly provides that the claim petition can be filed where the claimant ordinarily resides. He further contended before this Court that it is an enabling section to avoid the hardship of the claimants who normally belong to poorer section of the people shifting their place very often. However, at the time of the drawing inference the Supreme Court hald as follows: ". . . In the present case, we are satisfied that the statement of the deceased's father and mother is trustworthy that they are ordinarily residing at Tezpur, and hence the Commissioner, Workmen's Compensation, Tezpur has jurisdiction to entertain the claim petition. The Commissioner, Tezpur has also given notice to the Commissioner, Workmen's Compensation, Nagaon as well as the State Government in compliance with the proviso to Sect?on 21 (1) of the Act. "
(3.) ACCORDING to us, enabling provision does not disassociate itself from the mandatory part of the Act to avoid possibility of double benefit. Under nornrtal circumstances place of accident got basie jurisdiction to attract because imme-diately after accident lodging F. I. R. in the local police station and medical treat- ment etc. from the local hospital are associated with the incident. Therefore, there should be a process of scrutiny about filing of application at the place of accident before proceeding with the application on merit by the Court of Commissioner having jurisdiction over the place of the residence of the claimant's. Al-though Mr. Tandon contended that there is a difference between inherent ack of jurisdiction and irregular application of jurisdiction which is otherwise curable, we are of view that there are three distinct parts available for the Court to adjudicate a matter. Firstly the Court will entertain, then the Court will try and ultimately the Court will determine. There is no dispute that the Court of Commissioner has jurisdiction to entertain and determine but before determination at the time of trying the same, the statutorily adopted prbcess has to be followed strictly. Therefore, wearaof view that the purpose will beserved if weformally set aside the order impugned passed by the appropriate Commissioner, Kanpur dated 28m December, 2007 without going into the merit and remand the case to hear out afresh on merit upon fulfilling the conditions as per first proviso of the Section 21 (1) of the Act within a period of two months from the date of communication of the notice to the Commissioner over the jurisdiction of place of accident. But the deposited amount as per the order of the Court of Commissioner will be kept in a fixed deposit of a nationalised bank and will be renewed time to time unless and until further order is passed by the Commissioner subject to hearing of the matter afresh pursuant to our direction.;