- (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. 2. Learned Counsel for the Appellant urged that the approach of the learned Single Judge in dismissing the writ petition only on the ground that an appeal is provided under Section 30 of the Act is not the correct appreciation of the provision of law. According to the learned Counsel, proviso 3 to Section 30 of the Act requires that a pre-deposit has to be made and that pre-deposit defeats the right of the Appellant because it takes away a valuable consideration out of the pocket of the Appellant. The learned Counsel for the Appellant further urged on the strength of certain decisions rendered by the various High Courts such as Orissa High Court, Sikkim High Court and apart from the decisions herein referred to above of the various High Courts, the learned Counsel for the Appellants placed reliance on a Supreme Court decision rendered in the matter of Himmatlal v. State of M.P., 1954 AIR(SC) 403. and relied on the following observations as contained in paragraph 9: In our opinion, the contentions raised by the learned Advocate-General are not well founded. It is plain that the State evinced an intention that it could certainly proceed to apply the penal provisions of the Act against the Appellant if it failed to make the return or to meet the demand and in order to escape from such serious consequences threatened without authority of law, the infringing Fundamental Rights, relief by way of a writ of mandamus was clearly the appropriate relief. In Mohd. Yasin v. Town Area Committee, 1952 AIR(SC) 115 it was held by this Court that a licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his fundamental right to carry on his business and therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under Article 32, 'a fortiori' also under Article 226. These observations have apposite application to the circumstances of the present case. Explanation II to Section 2(g) of the Act having been declared 'ultra vires', any imposition of sales tax on the Appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realize it from the Appellant is a sufficient infringement of his fundamental right under Article 19(1)(g) and it was clearly entitled to relief under Article 226 of the Constitution. The contention that because a remedy under the impugned Act was available to the Appellant it was disentitled to relief under Article 226 stands negatived by the decision of this Court in , AIR 1953 SC 252 (B), above referred to. There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the Appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy. On the strength of the above decision, learned Counsel urged that as and when fundamental rights are involved, the reliefs sought under Article 226 of the Constitution should be granted. He further urged that the condition of pre-deposit is a condition which is onerous one and in the face of the condition of pre-deposit, it cannot Be said that the remedy provided under Section 30 of the Act is an adequate alternative remedy.
(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.;