The court affirmed that the discretion to entertain a time-barred claim under the Employees Compensation Act is valid, and benefits provided to a deceased's family do not bar compensation claims.

ORDER :

1. The instant appeal is directed against award dated 15.01.2009 (for short the impugned order) passed by the Commissioner under the Employees Compensation, Act, 1923 (for short the Act of 1923) in case titled as “Mst. Raja and Ors. Vs. Executive Engineer and Ors”.

2. Facts giving rise to the filing of instant appeal as stated, in the appeal, are that one Ab. Rahim Dar S/o Ghulam Ahmad Dar predecessor in interest of the respondent 1 to 3 herein (for short the deceased) while working as a helper in the appellant Department came to be killed by unknown gunmen in August 2005 whereupon his son Zahoor Ahmad Dar came to be appointed on compassionate grounds in terms of SRO 43 of 1994 inasmuch as the retiral benefits of the deceased as well came to be paid to the widow of the deceased being respondent 1 herein.

It is being stated that after a period of three years, respondents 1 to 3 herein filed an application before the Commissioner respondent 4 herein under the provisions of the Act of 1923 for compensation whereupon the Commissioner respondent 4 herein passed the impugned award directing the respondents petitioners herein to deposit/pay Rs. 3,06180/- to claimant respondent 1 herein.

3. The appellants herein being respondents in the claim petition feeling aggrieved of the impugned award dated 15.01.2009 have filed the instant appeal on the following grounds: -

(i) That the impugned judgment is against facts and circumstances of the case and is bad in law, as such this can be the sole ground on the basis of which, the impugned award can be quashed.

(ii) That from the judgement/award itself, it is quite clear that the claim application of the claimants was time barred and in view of the provisions contained in the Limitation Act, every claim application, which is beyond time limit is to be dismissed despite the fact that if the limitations not taken as defense, but in the present case, the respondent No. 4 without deliberating upon this legal issue; whether the time barred claim could be entertained, has passed the impugned award. As such the award impugned being against law is liable to be quashed.

(iii) That the deceased was a government employee, whose service benefits are protected under the constitution and all the benefits available to the deceased employee have been paid by way of providing employment to one of his legal heirs/dependents as provided under SRO 43 of 1994 and payment of Janta Insurance and also family pension. As such the deceased could not be termed as a workman within the purview of workmen’s compensation Act. The commissioner under Workmen’s compensation Act (respondent No. 4 ) was under legal duty to address this issue before passing of the award because “being workmen is the pre condition for entertaining a claim application under workmen’s compensation Act and without declaring the deceased as a workman of the appellant department, the commissioner under workmen’s compensation Act was not right either in entertaining or deciding the claim application, as such the impugned judgment is without jurisdiction, therefore liable to be set aside

(iv) That the appellants were not properly and adequately served, which has caused miscarriage of justice as once the service is not proper and adequate, the impugned order is to be treated illegal.

(v) That the impugned judgement/award has the effect of condemning the appellants unheard. On this ground also the impugned award is liable to be set aside.

(vi) That the evidence produced by the claimants has not been scanned properly, which too warrants quashment of the impugned judgment.

Heard counsel for the parties and perused the record.

4. Before adverting to the issues/grounds raised and urged in the instant appeal, it would be appropriate to refer to the following provision of the Act of 1923 being relevant herein: -

30. Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--

(a) an order awarding as compensation a lump sum