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Petitioner: EXECUTIVE ENGINEER VS Respondent: COMMISSIONER, WORKMEN'S COMPENSATION
1997 P L C (C
1997 P L C (C.S.) 1044
[Lahore High Court]
Before Muhammad Aqil Mirza, J
EXECUTIVE ENGINEER
versus
COMMISSIONER, WORKMEN'S COMPENSATION and others
Writ Petition No. 8139 of 1997, decided on 31 st March, 1997.
(a) Workmen's Compensation Act (VIII of 1923)‑‑‑
‑‑‑‑S. 30‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Non‑availing of alternate adequate statutory remedy of appeal‑‑‑Effect‑‑‑Statutory appellate forum was never approached by petitioner on pretext of bar of
limitation‑‑‑Order in question, was appealable but instead of availing such remedy petitioner filed Constitutional petition after eight months of passing of order in question‑‑‑Effect‑‑‑Bar of limitation in approaching statutory appellate forum had never been considered to be valid ground for filing Constitutional petition as substitute for statutory appeal‑‑‑Application for condonation of delay in such a case, `could always be made before Appellate Authority on valid grounds‑‑‑Without first availing alternate remedy of appeal under relevant statute, jurisdiction of High Court under Art. 199 of the Constitution could not be invoked and on that account Constitutional petition was incompetent.
The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.V, ,R. 10‑A‑‑‑General Clauses Act (X of 1897), S. 27‑‑‑Service through registered post acknowledgement due‑‑‑Such service was proper mode of service under O.V, C.P.C.‑‑‑Under S. 27, General Clauses Act, 1897, if notice was properly addressed and prepaid in registered letter, presumption would be that same was received by addressee‑‑‑Where registered letter was received in office of petitioner at his correct address, petitioner could not be heard to say that he should have been served personally‑‑‑Petitioner was, thus, properly served in circumstances.
(c) Workmen's Compensation Act (VIII of 1923)‑‑‑
‑‑‑‑S. 30‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Workman was murdered while on official duty‑‑‑Widow's claim for compensation was accepted by Commissioner, Workmen's Compensation‑‑‑Petitioner did not file appeal against grant of compensation to workman's widow‑‑‑Claim of widow was sought to be challenged in Constitutional jurisdiction on technical objection that claim of widow before Commissioner, Workmen's Compensation was barred by time‑‑ Commissioner by order consciously passed had condoned delay‑‑‑Claim of widow could not be assailed on technical grounds in Constitutional jurisdiction.
Ch. Muhammad Akram for Petitioner.
ORDER
In the instant case impugned order was passed by the Commissioner, Workmen's Compensation on 20‑8‑1996. It is conceded by the learned counsel that an appeal lies against the impugned order under section 30 of the Workmen's Compensation Act. Learned counsel says that the impugned order came to the notice of the petitioner eight months after the passing of the same and, therefore, the appeal has already become hopelessly time barred and hence, instead of availing the right of appeal this Constitutional petition has been filed. Learned counsel relied on The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279). The Bar of limitation in approaching the statutory appellate forum has never been considered to be a valid ground for filing a Constitutional petition as a substitute for the statutory appeal. In such a case, application for condonation of delay can always be made before the appellate Authority on valid grounds. Without first availing the alternate remedy of appeal under the relevant statute the jurisdiction of this Court under Article 199 of the Constitution cannot be invoked and on that account this petition is incompetent. The precedent case relied upon is clearly distinguishable. It was a case of lack of jurisdiction on grounds of mala fides and it had its own peculiar facts.
2. In the instant case ex parte order was passed on the ground that despite receipt of registered A.D. notice the petitioner had failed to appear and contest the case before the learned Commissioner. It is submitted by the learned counsel that the notice was not personally served on the Executive Engineer and, therefore, the ex parte proceedings could not have been taken against him. On the last date of hearing it was contended by the learned counsel that the notice was not received by the petitioner or any of his subordinates. In order to ascertain the factual position I summoned the original file of the learned Commissioner. The perusal of the file shows that the notice was sent through registered post A.D. to "the Executive Engineer, Highway Division, McLeod Road, Lahore." The A.D. card as also the postal receipt are on record. The A.D. card shows that it was received in the office of the Executive Engineer on 6‑8‑1996. It, is not denied by the learned counsel that the address on which this registered letter was sent is correct one. The contention of the learned counsel, however, is that the service should have been effected through Process Server personally. The matter in dispute relates to labour and service through registered A.D. was the proper mode of service in labour matters. I agree with the learned Commissioner that the service had been properly effected in the instant case. Service' through registered post acknowledgement due is a proper mode of service under Order 5, C.P.C. Under section 27 of the General Clauses Act if notice is posted properly addressed and prepaid in a registered letter it will be presumed that it was received by the addressee. Here the A.D. coupon shows that the registered letter was actually received in the office of the petitioner at his correct address. The petitioner is an officer serving in the Highway Department of the Punjab Government, having his independent office. It has not been urged nor indeed can it be urged that any unconcerned private person would have received the notice. Some official in the office of the petitioner, presumably the receipt clerk must have received the letter on behalf of the executive officer. Receipt of notice by subordinate official in the office was the proper service and the learned Commissioner acted‑in proper exercise of jurisdiction by passing the ex parte order. The petitioner cannot be heard to say that he should have been served personally.
3. The discretionary jurisdiction under Article 199 of the Constitution' cannot be exercised in the peculiar circumstances of the present case. The deceased was the Chowkidar working in the Highway Department. Admittedly he was murdered while he was performing his official duty. The compensation was claimed by his widow. The claim of the widow is sought to be challenged in Constitutional jurisdiction on the technical objection that the claim of the widow before the Commissioner, workman was barred by time. By conscious order the Commissioner condoned the delay. In these circumstances claim of the widow cannot be assailed on technical grounds in' the writ jurisdiction.
For what has been discussed above, the‑writ petition is dismissed in limine
A.A. /E‑4/L Petition dismissed