1. This is an application under clauses 4 and 21 of the chapter for a writ in the nature of certiorari for quashing of orders, dated the 17th of February, 1949, and of March, 1949, made by the respondent under the Workmen's Compensation Act.

2. The petitioner at all material times was a Contractor of the Central Public Works Department in connection with the construction and maintenance of Aerodromes at different parts of India. In course of such employment as Contractor; the petitioner was entrusted with some work in the Barrackpore Aerodrome in May, 1942. For the purpose of such work the petitioner employed labourers at the Military Aerodrome at Barrackpore. On or about the 11th June, 1944, the petitioner's gang was working in the Aerodrome at some distance away from the edge of the runway. Three of the labourers named Punia, Jinnat and Suphal Sha were killed as a resul of impact with United States Army Air Force supply plane which was about to take off from the said aerodrome for supply operations. The said aeroplane belonging to the U.S Army was employed for the benefit of His Majesty and Allied Powers in connection with the furtherance of the War. It is stated in the petition that for the said fatal injuries to the said three labourers the petitioner was in no way responsible. The said plane was being piloted by American Army Air Force pilot and one of the engines having suddenly stopped, the plane took an abrupt turn and shot out of the runway and the said three labourers sustained fatal injuries as a result of the impact with the said plane. Certain departmental enquiries were made by the Executive Engineer, Superintending Engineer and the Sub-Divisional Officer in charge of the aerodrome but no dependants of the deceased could be traced. On the 13th of June, 1944, a fatal accident report was sent to the Commissioner of Workmen's Compensation. It was pointed out in that report that the injuries were due to direct dashing of the aeroplane while taking off and the dead bodies were taken away by R.A.F Ambulance, Barrackpore. On or about the 12th of October, 1944, a Police report was forwarded by the S.D.O, to the Executive Engineer which stated that dependants of the deceased could not be traced. Thereafter some departmental correspondence passed between the Workmen's Compensation Commissioner and the Central Public Works Department in which it was pointed out to the Commissioner that the death of the three coolies were caused by a big U.S Air Force plane which was passing through the centre of the runway before taking off when the aircraft suddenly shifted its course with a terrific speed and dashed against the three labourers who were working at a distance of about 100 ft. from the edge of the runway and killed them instantaneously and thereafter certain Military officers arrived on the spot and arranged for the removal of the dead bodies by an Ambulance car and the Commissioner was asked to give his decision upon those facts stated. In a letter, dated the 8th of July, 1946, the Executive Engineer, Calcutta Aviation Division specifically sought the decision of the Commissioner on the point as to whether the cases could be regulated by the provisions of the War Injuries Ordinance, 1941. There appears to be an endorsement on the back of this letter, dated the 11th of July, 1946, which shows that the Commissioner was of the opinion that there was nothing on record from which it could be inferred that the aircraft belonged to or was held by any person on behalf of or by His Majesty or any Allied Power. The then Commissioner took the view that the Workmen's Compensation Act applied to the accident cases. In or about March, 1948, a sum of Rs. 2,700 was withheld by the Central Public Works Department from out of the sum of Rs. 6,000 which was settled in respect of the bills of the petitioner, for work done in the airfield, and the said sum of Rs. 2,700 was sent to the Workmen's Compensation Commissioner with a covering letter intimating that the said sum of Rs. 2,700 was the money due and payable to the petitioner and was being deposited for the compensation cases. The petitioner made demands for return of the deposit between May, 1948, and November, 1948. On or about the 26th November, 1948, Mr. S. Haider, the then Commissioner, ordered refund of the deposit but the office returned only the file in respect of one accident case but did not return the files of the other two cases. It is alleged that sometime in December, 1948, some dependants of the two persons whose files have been kept in the office were procured and the Commissioner by two orders made subsequently on the 17th February, 1949, and 1st of March, 1949, directed payment of certain sums to the alleged dependants of the two deceased persons.

3. The petitioner charges that these orders were made without jurisdiction by the respondent and Were made arbitrarily and illegally.

4. The petitioner states that the provisions of the War Injuries Ordinance (No. 7 of 1941 as amended by Ordinance Nos. 1 and 39 of 1942) which was in force at all material times applied to the, accident cases in question and excluded the liability of any of the petitioners under the Workmen's Compensation Act. In the circumstances the petitioner moved this Court for the reliefs stated above.

5. Mr. A.K Sen, the learned counsel for the respondent, has urged that the petitioner having submitted to the jurisdiction of the Commissioner of the Workmen's Compensation has disentitled Himself to get any relief in this application. Mr. Sen points out that the petitioner submitted a petition for refund of the amount deposited with the Workmen's Compensation Commissioner on the 26th July, 1948, upon which an order for refund was made by the then Commissioner on the 24th November, 1948, on condition of the petitioner giving the usual undertaking to redeposit the amount when any claimant appears. On the 29th November, 1948, the petitioner in compliance with the order gave the undertaking to redeposit the amount and on the 3rd December, 1948, obtained refund of the money under the said order of the Commissioner. Thereafter the petitioner took part in the inquiry held by the Commissioner, made his submission before him and has appealed from his order to the High Court and has thus precluded himself from challenging the jurisdiction of the Commissioner in the present proceedings.

6. Reliance is placed by Mr. Sen on Corpus Juris, Vol. XI, page 138, Article 103 which is set out as hereunder:—

“A party may be estopped to avail himself of the writ where he has invoked the jurisdiction, has submitted himself thereto without objection or has acquiesced in or has expressly consented to or sanctioned the course of the proceedings.” The decisions on which this statement is based are not available.

7. Mr. Sen also relies on Halsbury Vol. 9, paragraph 1403, pages 826–827.

8. It has to be noted however that the conduct of the petitioner has been far from one of submission to jurisdiction. In paragraphs 1 and 2 of his petition for refund filed before the Commissioner on the 26th July, 1948, it is pointed out that the labourer concerned died as a result of an accident due to bad mechanism and bad handling of an aeroplane belonging to U.S.A.A.F over Which the petitioner had no control, and the money was deposited by the Government out of fund belonging to the petitioner despite objection of the petitioner as to his liability to pay any compensation. There is no express objection taken as to the want of jurisdiction of the Commissioner on the ground that the labourer met his death due to a War Injury but the facts stated show that the petitioner was disclaiming liability for the reasons set forth in paragraphs 1 to 4 of that petition.

9. Even as early as the 8th January, 1947, when replying to the Notice issued by the Commissioner and dated the 16th December, 1946, he relied on these very grounds, though less happily worded, as exonerating him from liability to pay any compensation. Prior to this, letters, dated the 8th July, 1946, 17th July, 1946, 2nd September, 1946, between the Central Public Works Department and the Commissioner, Workmen's Compensation, had passed and so it was clear to all what the petitioner was driving at when referring repeatedly to the nature of the accident.

10. Further, the petition of objection which the petitioner filed before the Commissioner in the Distribution Case No. 46 of 1948 clearly shows that the petitioner's definite case was that the death was caused by a War Injury and therefore War Injuries Ordinance governed the matter and the petitioner's liability, whether contractual or under the Workmen's Compensation Act, was included.

11. In the face of these facts I find it difficult to hold that the petitioner unequivocally or unconditionally submitted to or acquiesced in the jurisdiction of the Commissioner of the Workmen's Compensation in respect of the proceedings pending before him.

12. Apart from that it is settled law that where there is inherent want or absence of jurisdiction no amount of consent or acquiescence can vest the Tribunal with jurisdiction. See Ledgard v. Bull (1) (13 I.A 140, 144-145) and Farquhar-son v. Morgan (2) [(1894) 1 Q.B 552, 557, 559-560]. See also Halsbury Vol. 9 paragraphs 1402-1404, pages 826–828.

13. This contention of Mr. Sen appears to the to be without any substance.

14. Another objection taken by Mr. Sen relates to the non-joinder of the dependants of the deceased to whom the compensation has been directed to be paid. Mr. Sen submits that in their absence the application is not maintainable. The learned counsel for the petitioner has produced Postal Receipts to show that notices of the hearing of the application were sought to be served by registered post on the dependants at the latter's address furnished by the Government department but the letters have come back as the dependants could not be traced. It appears to me extremely unlikely that the dependants, poor as they are, would have come forward to take part in the proceedings even if they had been actually served. The petitioner has made efforts to serve them with notices but he has failed for no fault of his own.

15. The application has been strongly opposed on behalf of the Respondent and I do not think that the presence of the dependants would have in any way improved matters especially as they were nowhere near the scene of the accident at the time it took place. In my view the petition cannot be thrown out for the alleged defect of parties as urged on behalf of the respondent.

16. It has also been contended by Mr. Sen that the petitioner had an alternative remedy by way of Appeal under the Workmen's Compensation Act and so he cannot have recourse to the extraordinary remedy of certiorari. It is a well-Settled proposition that although the writ is not of course it will nevertheless be granted ex debito justitiae, to quash proceedings which the Court has power to quash, Where the application is by an aggrieved party and it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction. Rex v. Surrey Justices (3) [(1870) L.R 5 Q.B 466] and the writ is available to the applicant although there is an alternative remedy.

17. In the case of R. v. Postmaster-General, Ex parte Carmichael (4) [(1928) 1 K.B 291, 299, 301] an appeal had been actually preferred but this was held to be no bar to writ of certiorari being issued.

18. In an earlier case Jackson v. Beamont (5) [(1855) 11 Ex. 300 : 156 E.R 844, 845-846] an appeal was pending when the Rule for issue of the writ of Prohibition came up for hearing. The writ was allowed to go and the Rule was made absolute.

19. See also Channel Coaling Company v. Ross (6) [(1907) 1 K.B 145, 148, 149] and Halsbury Vol. 9, paragraph 1481, pages 878–879.

20. In the case before me an appeal was preferred from the Order of the Commissioner to the High Court but as the dependants of the deceased could not be traced and service could not be effected on them the Appeal was struck out. In the affidavit in reply however (paragraph 20) a different story is told about the fate of the Appeal.

21. It is clear that the question of jurisdiction of the Workmen's Compensation Commissioner was brought into prominence from the very beginning. On the 11th July, 1946, the Commissioner Mr. B.K Basu, I.C.S, who had perhaps only the Fatal Accident Report before him found nothing on record to show that the aircraft belonged either to an enemy or belonged to or was held by any person on behalf of or for the benefit of His Majesty or an Allied Power. But subsequent letter, dated the 2nd September, 1946, and the petition filed by the petitioner before the Commissioner made it clear what the actual facts were but yet the Commissioner thought that the War Injuries Ordinance did not apply and he assumed jurisdiction in the matter the affidavit in opposition filed by the respondent indicates that he considered this question of jurisdiction and came to the conclusion that the Ordinance was not applicable to the facts and circum stances of the case. The petitioner's petition of objection appears to have been summarily rejected without giving him opportunity to establish his case on the 1st March, 1949, and the Final Award was made on that date. The petitioner was asked to make his submissions of law somewhere else. It is clear that the petitioner was not given proper opportunities to present his case before the respondent. The respondent was no doubt actuated and impelled by laudable motives to hand over some money to certain poor persons but he had no right to refuse hearing and deny natural justice to the petitioner. Rex v. Wandsworth (7) [(1942) 1 K.B 281].

22. Although there is conflict of decisions on the point whether the Writ of Certiorari is a discretionary writ or a Writ of right yet as in the present case the objection to jurisdiction was apparent on the face of the proceedings, the alternative remedy cannot stand in the way of the writ being issued in this case if there is found to be an absence of or excess of jurisdiction in the Commissioner of Workman's Compensation in dealing with the matter in question.

23. The objection of Mr. Sen on the score of there being an alternative remedy cannot be sustained.

24. The War Injuries Ordinance (Ordinance No. VII of 1941 as amended by Ordinance Nos. I and XXXIX of 1942) defines a “War Injury” as meaning “a physical injury caused by (among other things mentioned) the impact on any person or property of any enemy aircraft belonging to or held by any person on behalf of or for the benefit of His Majesty or any Allied Power or any part of or anything dropped from any such aircraft.” [Section 2(6)(b).]

25. Section 3 provides for making of schemes under the Ordinance and provides for the powers of the Central Government and the authority authorised by the Central Government, to make payments under the scheme or for giving effect to the purposes of the scheme. A different department is set up to deal with matters of War Injuries and to determine questions of compensation payable for such injuries. (Sections 3, 4 and 5 of the Ordinance.)

26. Section 4 of the Ordinance provides for relief from liability to pay compensation or damages. The relevant portion of the provision is as follows:—

“In respect of a War Injury sustained during the continuance of the present hostilities by any person, and in respect of a War Service injury sustained during that period by Civil Defence Volunteer, no such compensation or damage shall be payable whether to the person injured or to any other person, as apart from the provisions of this sub-section— (a) would be payable under the Workmen's Compensation Act, 1923 (VIII of 1923), or (b) would, whether by virtue of any enactment or by virtue of any contract or at common law, be payable (i) in the case of a War Injury by any person on the ground that the injury in question was attributable to some negligence, nuisance or breach of duty for which the person by whom the compensation or damages would be payable is responsible.”

27. It is clear from the aforesaid provisions that neither the Workmen's Compensation Act nor any other existing legislation is to apply in the case of War Injuries. The War Injuries are regarded as a special class of injury outside the intention and scope of previous legislation and compensation for such injuries is to be determined and paid in accordance with the scheme framed and by the authorities appointed under the Ordinance.

28. In the case of Billings v. Reed (8) [(1944) 2 All E.R 415] an action was brought under the Fatal Accident Act, 1846 and Law Reform (Miscellaneous Provisions) Act, 1934, by the personal representative of a woman who met her death owing to the negligence of the defendant, a pilot in the Royal Air Force who flew an aeroplane at a height of less than 6 ft. over a field in which she was engaged on farm work. The defendant admitted negligence but pleaded that he was relieved from liability for damages under the provisions of the Personal Injuries (Emergency Provisions) Act, 1939, (2 and 3 Geo VI Ch. 82.) The provisions of this English Act are worded in practically similar terms as the Indian War Injuries Ordinance. Lord Greene, M.R, in construing a provision similar to section 4 of the Indian Ordinance observed:

“Putting it shortly: the broad effect of that provision, read according to its ordinary meaning, appears to me to be that in the case of War Injuries all rights to sue in tort or for breach of contract or to claim under the Workmen's Compensation Act or any other enactment is taken away where the injury in question is a war injury and the cause of action is based on some negligence, nuisance or breach of, duty. That, again for the sake of complete accuracy, must be qualified by remembering that the right to claim under the Workmen's Compensation Act is expressly excluded and the words ‘attributable to some negligence, nuisance or breach of duty’ do not apply in that case; it is a separate case.”

29. In the case of Adams v. Naylor (9) [(1946) A.C 543] the facts were that three boys Robert Adams, aged 12, Char les Adams, aged 13 and Frank Smith aged 13, were playing in the Sandhills which fringe the Lancashire coast between Crossby and Southport just above the high watermark. The Military Authorities, as a provision against enemy attempts at invasion, had constructed a minefield in the Sandhills and to prevent the risk of the public enter ing the mines area had surrounded it with a fence of thick barbed wire. One of the boys kicked a tennis-ball over the top strand of wire and in retrieving it Frank Smith happened to cause one of the buried mines to explode and was instantly killed, while Robert Adams was seriously injured. Robert Adams and the mother of Frank Smith brought action against the defendant who was an officer in the Royal Engineers and was at all times in control and responsible for the maintenance and safeguarding of the minefield, alleging negligence in failing to keep the fence effective and not giving adequate warning of danger. The House of Lords held that as the case was a case of “War Injury” within the meaning of sec. 3(1) of the Personal Injuries (Emergency Provisions) Act, 1939, (the defendant was exonerated from liability and the right of action was excluded.

30. Thus there appears to be a complete ouster of jurisdiction of the Commissioner of Workmen's Compensation in case the death was caused by a War Injury.

31. The Government of India's War Department also issued a circular in September, 1944, to the effect “that the Governor-General in Council had accepted the principle that ex gratia compensation would be paid at Workmen's Compensation Act rates to labourers employed by a contractor on the construction and/or maintenance of airfields in respect of War Injuries (as defined in War Injuries Ordinance, 1941) sustained by them in execution of their duties. This will apply to airfields under the supervision of the various constructional agencies, e.g, Military Engineer Services, Central, Provincial and State P.W.D's.”

32. The injury which caused the death of the labourers in the present case was sustained by impact of the United States Army Air Force Plane while the deceased workmen were engaged in work in the Barrackpore airfield maintained under the supervision of the Central Public Works Department. It is clear that the injury was a “War Injury” as defined in the Ordinance and the Commissioner had no jurisdiction to entertain any compensation proceedings in respect of the cases of the deceased workmen or to pass the orders, dated the 17th February, 1949, and the 1st March, 1949, as he had purported to do.

33. It was contended by Mr. A.K Sen that even assuming that the Commissioner was wrong in his finding that the injury was not a War Injury this Court has no jurisdiction to interfere with the finding. I do not think that this contention has any force at all. This fact whether injury was a War Injury or not was a question on which the jurisdiction of the Commissioner to deal with the cases of the deceased workmen depended. He was called upon to decide this question of fact before he could assume jurisdiction. It has been held in numerous cases that if the inferior Court has decided wrongly facts which are conditions precedent to the exercise of jurisdiction such decision may be questioned and the superior Court has power to quash it by certiorari. See R. v. Income-tax Special Purposes Commissioners (19) [(1888) 21 Q.B.D 313, 319] and R. v. City of London, etc., Ex parte Honig (11) [(1951) 1 All E.R 195, 197] (per Goddard, C.J) and at p. 198 (Parker, J.). See also Halsbury Vol. 9, paragraph 1485, page 881.

34. The affidavit of the respondent who has purported to pass the orders complained of has the effect of making those orders “Speaking Orders” and hence this Court has power to quash the orders by Writ of Certiorari.

35. See Rex v. Nonthumberland Compensation Appeal Tribunal, Ex parte Shaw (12) [(1951), 1 K.B 711]. It is true that the orders on the face of them do not set out the reasons for making these orders, but fortunately for the petitioner the person responsible for making these orders is before the Court and has set forth the reasons in the affidavit filed by him.

36. In my view this petition must succeed. The Rule is made absolute. The orders, dated the 17th February, 1949, and 1st March, 1949, are quashed. The petitioner is entitled to costs of the present proceedings.

A.K.D.G