Amitava Lala, J. - (1.) THE controversy in this case is as to whether the Court of Workmen's Compensation, having jurisdiction over the area where the workman or his dependent ordinarily resides, can pass an order awarding compensation without giving any notice to the Commissioner, within whose jurisdiction the accident took place, in the manner prescribed by the Central Government or the State Government concerned. Secondly, when the medical board awarded 50% permanent disability, awarding of compensation to the injured treating it as 100% disability is appropriate or not.
(2.) WITHOUT going into the root of controversy with regard to the first issue, we make it clear that if we decide the question for remanding the matter back to the Commissioner with certain directions for the purpose of appropriate adjudication then the question of merit as agitated herein will be heard by the Commissioner on the basis of the submissions to be made by the parties therein. We have no occasion to go into such question and without prejudice to a Division Bench judgment of this Court which has been delivered on the issue in Oriental Insurance Company Limited v. Shambhu Nath Yadav and another, 1 (2008) ACC 264 : 2007 (3) ACCD 1711 (All) (DB) : 2007 (4) AWC 3758, where 50% disability was enhanced upto 100% adding loss of earning capacity due to amputation of lower limb below the knee of a driver. Learned counsel appearing for the appellant contended that the case herein is factually different being the case of fracture not total loss of earning. It is also required to be considered in this case whether the injured is incapable of doing any work or work as driver only. Coming back to the first point of controversy, which is procedural in nature, we have to see whether first proviso to Section 21 (1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) speaks about inherent lack of jurisdiction of the Commissioner or not. Learned counsel appearing for the appellant has relied upon a judgment of this Court in M/s. Chawla Techno Construction Ltd. and another v. State of U. P. and others, 2006 (108) FLR 351, passed by the learned single Judge to have its persuasive value. He said that when no such notice has been issued by the concerned Commissioner, he has no authority or jurisdiction to proceed with the application and as such proceeding with the application itself, in view of such circumstances, is a futile exercise and lacks the territorial jurisdiction to deal with the matter in terms of first proviso to Section 21 (1) of the Act. Learned counsel appearing for the appellant further cited a Supreme Court judgment in Ramchandra Keshav Adke v. Govind Joti Chavare and others, AIR 1975 SC 915, to establish that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. He has also placed reliance upon a Supreme Court judgment in Morgina Begum v. Managing Director, Hanuma Plantation Ltd., 2008 (1) TAC 439 : 2007 (3) ACCD 1669 : 2007 (4) AWC 3681 (SC), from which we find that the Supreme Court has passed an affirmative order when found due compliance with the proviso to Section 21 (1) of the Act was made. Lastly, he relied upon a judgment of this Court in Laxmi Pat Singhal v. Smt. Naseema and others, 2009 (2) ADJ 644 : 2009 (2) ACCD 646 (All) (DB) : 2009 (2) AWC 1092 to apprise us that when the matter is required to be remanded back for the purpose of consideration of the cause upon notice to the Commissioner under whose jurisdiction the accident was caused then there is no necessity to withhold the deposited amount of compensation till such exercise is made by the Commissioner but to refund the same immediately. We have considered the pros and cons. We are of the view that there are two situations, i.e., judicial authority inherently lacks the jurisdiction and having jurisdiction not complied with legal formalities. If the Commissioner completely lacks jurisdiction then the entire exercise subsequent thereto will render futile and no proceeding can be proceeded without such notice but when the Court having jurisdiction did not discharge obligation/s required to be done procedurally then an appropriate order at an appropriate stage can be passed but depending upon the facts and circumstances of each case. In this particular case no such point has been raised by the appellant preliminary or substantially before the court of Commissioner. The Commissioner has proceeded on merit, delivered a judgment and passed an order giving compensation to the claimant on account of injury. It is for the first time before the appellate court, the appellant has taken the point. Although the point can be taken at the appellate stage but one should be diligent before the court of first instance at the time of framing issues and leading evidences. The objects and reasons of Workmen's Compensation Act, 1923 is to provide compensation to certain classes of workmen or their dependants on account of injury caused by the accident. Therefore, it is a beneficial piece of legislation. In the case of beneficial piece of legislation, law is little tilted in favour of the beneficiaries. Hence. the requirement for the Court is to determine the course of payment as natural and refusal, if any, as unnatural. One of such reason of refusal is extortion of money by practising fraud upon the Court. To plug the loophole, law has provided the parameter to avoid double benefit. The requirement of law is that the Commissioner who is going to pass an order having jurisdiction over the residence of the claimant has to have knowledge or information about proceeding, if any, before the Commissioner in whose jurisdiction accident took place. Therefore, non-discharge of such duty by the Commissioner is definitely an acute procedural irregularity but the same cannot be construed as inherent lack of jurisdiction. On the basis of the ratio of Ramchandra Keshav (supra), it is expected that the judiciary must be much more careful since judicial accuracy gives correct message to the society.
(3.) HENCE, the matter is required to be sent back to the court of Commissioner for reconsideration of the cause upon notice to the Commissioner in whose jurisdiction accident took place in accordance with law keeping the effect of the order in abeyance till such time. Now the consequential issue is whether statutory deposit of the entire amount in the office of the Commissioner for preferring this appeal will be refunded back when a Division Bench of this Court in Laxmi Pat Singhal (supra), in which one of us (Amitava Lala, J.) is member, was pleased to direct that a part of the amount can be refunded or not. We are of the view that each and every case is depending upon the facts and circumstances of such case. In this particular case no such issue, as raised hereunder, has been raised before the court of the Commissioner of Workmen's Compensation by the appellant but when after contest lost the case, wants an order of refund of the said sum back.;