ORDER
Lengaraja Rath, J
1. These two appeals raise the same question and hence are disposed of by this common judgment. The parties are referred to as arrayed in the C.M.A.
2. The appellant is the Insurance Company who insured respondents covering accidents to their workmen In both the cases the accidents occurred in the Stale of Maharashtra So far as the L.P.A.No.175 of 1994 is concerned, the accident resulted in death of the workman and so far as the C.M.A. is concerned, the accident resulted in injuries to the workman. Cases under the workman’s Compensation Act were filed before the Workmen Compensation Commissioner at Ranga Reddy District by the legal representatives of the dead workman and by the workman himself respectively. Their cases being allowed and compensation awarded the appeals were filed. So far as the death case is concerned, C.M.A.No.293 of 1993 was preferred and the appeal having been failed, the present L.P.A. has been preferred. The C.M.A.No.293 of 1993, arising out of the order of the Commissioner in the injury case, has been referred by the learned single Judge to the Division Bench as the question urged in the C.M.A. is the same as arising in the L.P.A.
3. The sole question urged by the learned Counsel for the appellant is that the compensation cases were to have been filed before the Workmen Compensation Commissioner at Maharashlra as the accident occurred there and that for the reason, the Commissioner at Hyderabad had no jurisdiction to entertain the applications. Consequently the awards were nullified and cannot be given effect to for which reason those must be set aside.
4. It has to be mentioned that so far as the L.P. A. is concerned, the appellant though
admittedly had received notice, yet did not enter appearance before the Commissioner and did not contest the case for which an ex parte award was passed. So far as the injury case is concerned, the appellant entered appearance in the case only after the case had been completely heard and reserved for judgment. The appellant filed counter in that case taking the objection, inter alia, of the case being not maintainable for want of territorial jurisdiction as the accident had taken place in Sholapur police limits in Maharashtra State. The case was contested by the appellant by cross-examining the witnesses of the petitioner before the Commissioner and also filing documents like insurance policy containing vehicle number, name of the owner and regarding insurance etc. and closed his evidence. The record of the case does not show the question of lack of territorial jurisdiction to have been pursued before the Commissioner.
5. Mr. K.LN. Rao, the learned Counsel for appellant urges placing reliance on Section 21 of the Workmen’s Compensation Act, hereinafter referred to as ‘the Act’, that it is the requirement of Section 21(1) of the Act that the application is to be made before the Commissioner of the area in which the accident took place resulting in the death or injury. It is argued that the provisions of the C.P.C. has no plenary application to the proceedings before the Commissioner. Section 23 of the Act vests powers of the Civil Court in the Commissioner only for the purpose of taking evidence on oath and enforcing attendance of witnesses and compelling the production of documents and objections. This submission is developed with reference to the provisions of the Motor Vehicles Act, 1988 wherein an amendment was carried out by Act 54 of 1994, which came into force on 14-11-1994, to Section 166(2) of the Motor Vehicles Act providing that every claim application shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or
carries on business or within the local limits of whose jurisdiction the defendant resides. A corresponding amendment was made to Section 21 of the Workmen’s Compensation Act, which came into force from 1-10-1996, that an application can be filed before the Commissioner for the area in which accident took place which resulted in the injury or where either the injured workman or in the event of his death his dependents reside. The Amendment Act itself provided in Section 1(2) that the provisions of the Amendment Act shall come into force on such date or dates the Central Government may in the official gazette publish. In pursuance of the above provision, notification was made by the Ministry of Labour on 1-10-1996, no application before the Commissioner of a different place could have been filed or entertained prior to the enforcement of the Amendment Act. The learned Counsel submits that as an amendment was necessary, both in the Motor Vehicles Act as also Workmen’s Compensation Act to permit change of venue of filing of the applications, the Commissioner of a different place would not exercise jurisdiction to entertain an application even before the amendment. Contesting the submissions, the learned Counsel for the respondent, Mr. Ashok Anand Kumar submits the provisions of Section 21 of the Act to be directory and not mandatory. It is urged by him that an objection as to the lack of territorial jurisdiction is one which does not go to the merit of the matter and that an award having been given, it cannot be set at naught only for the reason that the Commissioner had no territorial jurisdiction. He fortified the submission contending that the very conduct of the appellant was that in one case he did not contest and in the other case though he contested and taken a ground as to the lack of territorial jurisdiction of the Commissioner, yet never insisted or pursued the same which enabled the Commissioner to pass the award and hence it would not be open for the appellant to urge such question at the appellate or at L.P. A. stage.
6. The legislation relating to Workmen’s Compensation is a labour oriented
one enacted for the purpose of speedier payment of compensation in case of injury or death. The Act is socio-beneficiary legislation designed to reach out monetary compensation as a part of redeeming the distress of the workmen or their defendants without having the necessity to go through the whole gamut of legal wrangles and procedures to ultimately stumble upon the compensation due to them.
7. Mr. Rao placed strong reliance upon the use of the word ‘shall’ in Section 21 and contends the provision to be mandatory. As we shall see presently, whether a statute is directory or mandatory depends not only upon the use of words ‘shall’ and ‘may’ but on various other considerations the common trait of all of which is to advance the performance of the legislation and prevent the mischief which is sought to be tackled on the occasion. Undoubtedly, both the accidents occurred prior to 1-10-1996 and applications were ordinarily to have been filed before the respective Commissioners in the State of Maharashtra. But the question for consideration is, if such applications were filed before the Commissioner of the place where the workman or his legal representatives reside and the Commissioner does pass the award, whether the award can be thrown out as being one without jurisdiction. Before we enter upon a discussion as to whether the provision of the section is mandatory or not with reference to the scheme of the Act, it is also worthwhile to note the provisions of sub-section (2) of Section 21 and Rule 22 of Central Workmen Compensation Rules which is also same as Rule 22 of the AP. Workmen’s Compensation Rules. Sub-section (2) of Section 21 provides that if a Commissioner is satisfied that the matter arising out of any proceedings pending before him can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may, subject to rules made under the Act, order such matter to be transferred to such other Commissioner either for report or disposal, and if he does so he shall forthwith transmit to such other Commissioner all documents relevant for the decision of such
matter. Rule 22 is the provision to be applied when the application is presented to a wrong Commissioner. When such is the case and the Commissioner on receiving the application finds that it should have been presented to the other Commissioner he has to return it to the applicant after endorsing upon it the date of presentation and return, the reasons for returning and the designation of the Commissioner to whom it should be presented. The power can also be exercised at a later stage of the enquiry. Relying upon the provision of Sub-section (2) of Section 21 and Rule 22 Mr. Rao also submits that on the one hand the respondents should have presented the application to the Commissioner at Maharashtra and should have moved for its transfer to the Commissioner at Hyderabad if they felt that the matter could be more conveniently enquired by him and got an appropriate order of transfer passed and, on the other hand that the Commissioner at Hyderabad had the duty to return the application for proper presentation as he was to have seen that the applications were not entertainable by him. Since neither the respondents nor the Commissioner at Hyderabad carried out their obligations, the awards are to be set aside.
8. The question whether provision of a statute is directory or mandatory is a vested one and there is no hard and fast formula to hold the provision as either. To arrive at a conclusion, the entire statute has to be considered with particular reference to the provision in question. Predominantly, the consideration which weigh with the Courts to hold a provision as mandatory is existence of any provision in the statute, to hold the orders passed in non-compliance of the first provision to be treated as invalid, whether any penalty is attached to the non-compliance, whether the act complained of is a public duty to be performed, whether to hold the provision to be mandatory would actually advance the legislative intent or retard it, whether to hold it as mandatory would cause serious prejudice to the person for whose benefit the law is made and the like. Without referring to the plethora of decisions on the question, it would
suffice to only note a few decisions of the Supreme Court to bring out the underlying principles. In R.B. Sugar Co. v. Rampur Municipality, , a Constitution Bench decision, the majority held as follows :
“The question whether a particular provision of a statute which on the face of it appears mandatory – inasmuch as it uses the word ‘shall’ as in the present case – or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making The provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.”
In an earlier case in State of U.P., v. Babu Ram, the Supreme Court ruled thus :
“The relevant rules of interpretation may be briefly stated thus : When a statute uses the word ‘shall’ prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions,
the fact that the non-compliance with the provisions is or not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.”
In a larger Bench decision of seven Judges in In re, Presidential Election 1974, AIR 1974 SC 1682 the same principles were reiterated saving :
“In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duly of the Courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. ‘The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.'”
The provisions of the Act, particularly of Section 21, have to be examined keeping in view such exposition of law. The necessity for amendment of law to enable either the workman or his dependents to present the application before the Commissioner in whose jurisdiction he ordinarily resides had been felt by the Parliament even in the year 1994 when the amendment to Motor Vehicles Act, which is a similar legislation relating to the payment of compensation, was carried out. The amendment undisputably is one intended to advance the performance of the main legislation. The requirement that the application must be filed before the Commissioner within whose jurisdiction the accident occurs can be presumably said many a limes to be onerous and cause great hardship to the applicants. If a workman of Chennai succumbs to injuries sustained at Punjab, his dependents have to go to that Stale, file the application there and thereafter move an application before the Commissioner there to get the case
transferred to Chennai. That would involve travel from Chennai to Punjab several times and pursuing the case at a place to which they are totally strangers. More often than not, the claimant may be an illiterate lady and again presumably may become a victim to exploitation of middlemen and may have to undertake the pursuing of the case at great personal risk. The provision that the Commissioner having jurisdiction may transfer the case to another Commissioner who can more conveniently try the case was correctly thought of by the Parliament as not adequate to meet all situations and hence the beneficial amendment in the Motor Vehicles Act that would show the legislative body to have itself found the necessity for the amendment as advancing the object of the legislation. Section 21 except using the, word ‘shall’ with relation to the Commissioner in whose jurisdiction the accident occurs, does not by itself get provided in any other provision. If the application is filed in contravention of Section 21, it is to be noticed, that entertainment of the application is not a case of absolute tack of jurisdiction or inherent lack of jurisdiction for that Commissioner. He has to entertain the application but transfer it to the Commissioner having jurisdiction. Thus, entertainment of the application by the Commissioner within whose jurisdiction the workman or dependents reside but the accident did not occur is an irregularity or could at best be an illegality but not relating to any intrinsical incompetence to deal with the matter. We will illustrate the point by an example. Supposing the Commissioner purporting to have jurisdiction over the issue is one who had by then not been notified under the Act but was acting as such and passes an order under Section 21(2) transferring the case to another Commissioner, could it be said that since the Commissioner was only defacto acting as such, though no proper notification had been made in his favour, the Commissioner deciding the matter on transfer is one without jurisdiction. In pur opinion, the answer must be in the negative. To hold the contrary would actually defeat the very object of the Act. The matter can also be viewed from another angle.
9. The lack of territorial jurisdiction, it is the uniform view of law, does not go to the root of the matter. In Hira lal v. Kali Nath, a Constitution Bench Division, the Court held :
“It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure.”
Their lordships hence laying down as a general proposition of law that objections as to the local jurisdiction does not affect the competence of the Court and such defect does not go to the root of the matter. The principle is not derived from Section 21 of the C.P.C. and it is rather the reverse, the section giving a statutory recognition to the already existing principle. We, hence, do not agree with the submission of Mr. Rao that the principle has a foundation only in Section 21 of C.P.C. which is not made applicable to the proceedings before the Commissioner. Since the principle is more immanent than Section 21 C.P.C., the exposition of law in relation to Section 21 would sub-serve as the exposition of the principle itself. It has to be noticed that the principle is one which has its root in the principles of equity and natural justice. In Pathumma v, Kuntalan Kutty, the Court dealing with Section 21 of C.P.C. held that the objection as to territorial jurisdiction cannot be taken unless it was taken in the Court at the first instance and at the earliest possible opportunity and that there has been a consequent failure of justice. The principle has to be equally applied to all objections to territorial jurisdiction and hence it has to be seen whether there has infact been any failure of justice because of the matter having been entertained by the
Commissioner at Hyderabad. The same observations were also made in R.S.D.V. Finance Co. Pvi. Ltd. v. Shree Vallabh Glass Works Ltd, thus :
“Sub-section (1) of Section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been consequent failure of justice. The above provision clearly lays down that such objection as to the place of suing shall be allowed by the appellate or revisional Court subject to the following conditions :
(i) That such objection was taken in the Court of first instance at the earliest possible opportunity;
(ii) in all cases where issues are settled then at or before such settlement of issues;
(iii) there has been a consequent failure of justice.”
10. In the present case, it is fairly conceded by Mr. Rao that no challenge is made absolutely to the merits of the award. It is neither a case that the compensation has been improperly determined or that the compensation was not due. The whole objection is based upon the technical objection of lack of territorial jurisdiction. Consequently, there is no case absolutely that there has been any failure of justice of the matter being entertained by the Commissioner at Hyderabad. Further, the conduct of the appellant also disentitles him to raise any such objection. In the case where death occurred, he never appeared and the case was decided ex parte. Even in the injury case, though he contested, yet, he was satisfied only on raising the objection as regards maintainability but never raised the question of lack of territorial jurisdiction before the Commissioner. The appellant also could have gone before the appellate Court or could have come before
this Court to challenge the continuance of the proceedings before the Commissioner. No such steps were taken and on the contrary the Tribunal was allowed to proceed with the case in which the appellant not only participated but also cross-examined the witnesses, filed documents and declared the evidence closed.
11. Considering the matter from all such aspects, we would hold the provisions of Section 21, as it stood prior to the amendment, to be directory and that it is also not to be available to the appellant to raise such question because of its conduct in relation to both the cases. In the result, the L.P.A. is allowed and CM. A. is dismissed with costs throughout.