ORDER R.V. Raveendran, C.J.

1. Respondent Nos. 3 to 5 made an application before the Commissioner for Workmen's Compensation claiming compensation for the death of one Bishandayal Bandewar, alleging that he died in the course of employment under the petitioner. The Commissioner of Workmen's Compensation by order dated 7-10-2004, allowed the claim and awarded compensation of Rs. 2,54,160/-alongwith interest.

2. The petitioner is aggrieved by the said order of the Commissioner on several grounds. The first ground is that Bishandayal Bandewar was not his employee. The second ground is that he was not given due opportunity to contest the claim. The third ground is that the compensation awarded is excessive and contrary to evidence. He, therefore, wants to challenge the order of the Commissioner of Workmen's Compensation by filing an appeal in this Court under Section 30 of the Workmen's Compensation Act, 1923 ('Act' for short). He states that the Third Proviso to Sub-section (1) of Section 30 of the Act (inserted by Act No. 15 of 1933) requiring that the entire amount due under the order should be deposited before filing an appeal is coming in his way, as he has no funds to comply with the said condition. The petitioner contends that the said provision is wholly arbitrary and unreasonable and denies him an effective remedy of appeal, as it is impossible for him to find the amount for the deposit. He has therefore, filed this petition seeking a declaration that the said third Proviso to Section 30(1) of the Act as unconstitutional. The said Proviso reads as under :--

"Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against."

3. In State of Andhra Pradesh v. McDowell & Co. (AIR 1996 SC 1627), the Supreme Court pointed out that a law can be struck down by Courts only on the ground of lack of legislative competence or violation of any fundamental rights guaranteed in Part III of the Constitution or any other Constitutional provision. It was observed that no enactment can be struck down just by saying that it is arbitrary or unreasonable, and some or the other Constitutional infirmity has to be found before invalidating an Act. It was further observed that merely because a Court considers a provision to be unjustified, it can not be struck down.

4. The nature of a right to appeal was explained by the Supreme Court in Vijay Prakash D. Mehta v. Collector of Customs (AIR 1988 SC 2010), thus:--

"Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant...... It is not the law that adjudication by itself following the rules of natural justice would be violative of any right-.-- Constitutional or statutory--without any right of appeal, as such. If the statute gives a right to appeal upon certain conditions, it is upon fulfillment of those conditions that the right becomes vested and exercisable to the appellant."

The principle was reiterated in Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad, AIR 1999 SC 1818, thus :--

"This Court said that right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is a statutory right can be conditional or qualified. It can not be said that such a law would be violative of Article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute, however, in regard to an appeal, the position is quite opposite. The right to appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of appeal, it can impose conditions as well."

5. The scope of a statutory right, as against a fundamental right or equitable right, is described thus by the Supreme Court, though in a different context, in Jyoti Basu v. Debi Ghosal (AIR 1982 SC 983):

"Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitations... It is a statutory proceeding to which neither the common law, nor the principles of equity apply but only those rules which the statute makes and applies."

6. Therefore, if the petitioner wants to exercise the right to appeal, it can be done only subject to the conditions stipulated for exercise of such right and not otherwise. The contention of the petitioner that the condition by the Third Proviso requiring deposit of the entire amount, is violative of Article 14 is therefore liable to be rejected. The learned Counsel for the petitioner, however, tried to distinguish the said two decisions. He pointed out that the provisions regarding appeals in the cases of Vijay Prakash D. Mehta and Gujarat Agro Industries contained an inbuilt provision to relieve the appellant from the rigours of the condition relating to deposit of full amount, in case such Authority was of the opinion that it would cause undue hardship to the appellant. He contended that Section 30 of the Act did not contain such a provision for dispensation of the condition.

7. While some enactments contain a provision for pre- deposit of the entire amount as a condition for filing the appeal, some other enactments while incorporating such a condition also give the discretion to the Appellate Authority to relax the condition in cases of hardship. But what should be the nature of the conditions to be imposed in regard to the right of appeal, that is whether it should be absolute or limited or with exceptions is a matter for the Legislature to decide. Once it is recognised that a right of appeal is purely a statutory right to be governed wholly by the provisions of the Statute granting such right, it follows that it is for the Legislature to stipulate suitable or appropriate conditions relating to appeal. For example, Motor Vehicles Act provides for deposit of a fixed sum of Rs. 25,000/- as a condition for filing the appeal. Enactments like Central Excise Act and Customs Act require deposit of the entire amount as a condition for appeal, but also enable the Appellate Authority to relax the condition. On the other hand, the provision for appeal in enactments like Workmen's Compensation Act, Payment of Wages Act and Payment of Gratuity Act contain an absolute condition relating to deposit without any power to relax. The rigour of the condition and the nature of the condition depend upon the object and purpose sought to be achieved by the Legislature. The Workmen's Compensation Act, Payment of Wages Act and Payment of Gratuity Act are beneficial legislations intended to protect the interests of the workmen/employees. Therefore, Legislature has consciously imposed an absolute condition. That by itself can not be considered as a discriminatory or arbitrary.

8. In fact, the very provision came up for consideration before the Kerala High Court and Madras High Court and they have upheld the validity thereof.

8.1. In T. Narayanan Nair v. Union of India and Ors., 1990 ACJ 798, a learned Single Judge of Kerala High Court rejected the challenge to the third proviso to Section 30(1) on the following reasoning :--

"Under the Scheme of the Workmen's Compensation Act, any serious injury to him has to be compensated, and quickly too. Time was when even an illness for a small spell of time could shut out the flame of life in workman's family. With the main candle shut out, the family itself will be in gloom and left in the cold. A summary procedure is therefore provided under a benign enactment, so that the workman or his family in dire distress could get some support or solace from the employer or his contractor......

Employers get attracted to a brisk business or other organised commercial activity, by the possibility of getting attractive profits. Generally the employers would be persons who by their intrinsic work or institutional arrangements, are in a position to provide various contingencies including accidents in relation to their establishment or the workmen. An appeal can pend for long. This period could be used for dishonest manipulation by an unscrupulous employer. The contingency has to be avoided. One sure way of avoiding such a situation where the workman will only have a victory was to insist on the compensation payable, as sooner as the finding of liability is entered by the Commissioner. In a sense, it protects the competing interest of the employer of the workman. The workman can feel secure about the compensation payable to him, by this statutory insistence. It may not be altogether unjust if in such a situation, actual payment is postponed by a short period. The appeal then could be processed, heard and disposed of without undue hustling or unnecessary strain.

Viewed from the point of view of the employer, it is not difficult for him to secure in these days necessary financial aid from the authority or institutions handling money. Even if it be a bit inconvenient, an ordinary employer would have the wherewithal to meet payments of that nature. The inconvenience caused in the process is no reason to strike down the statutory provision 8.2. The question whether the requirement relating to deposit of entire compensation awarded as condition precedent for preferring appeal, rendering the right to appeal nugatory, came up for consideration before a learned Single Judge of Madras High Court in Nathamuni Gounder v. State of Tamil Nadu, 1986 (2) LLJ 423. He observed :--

"...... However, Mr. R. Gandhi, learned Counsel for the petitioner, would contend that the Third Proviso to Sub-section (1) of Section 30 of the Act enjoins upon the employer to deposit the amount payable under the award before an appeal is entertained. The learned Counsel would submit that the said proviso practically denies the right of appeal. I am not able to spell out that the said proviso denies the right of appeal as such. By enjoining the appellant to deposit the amount, the subject matter of the appeal, it can not be stated that the appeal remedy is taken away. It is an age-old principle of law that the right of appeal is not a natural or an inherent right attaching to any litigation. A right of appeal as such does not exist and can not be assumed unless expressly given by statute or by rules having the force of statute. An appeal being a creature of statute, the right of appeal can always be limited by the law which gives that right and the provisions of the statute settling the conditions for preferring an appeal can not be held to be bad in law. Even if a statute denies a right of appeal, that statute can not be held to be a bad legislation. If a legislation thinks, in a particular case, that no appeal should be provided, or the right of appeal which it provided should be exercised in a particular manner and subject to certain conditions, that legislation has always been countenanced to be a proper legislation. The reason behind the said proposition is, the right of appeal is a creature of statute and its exercise, its scope and its results shall always be controlled by the provisions of the statute which creates that right....."

9. No Constitutional invalidity is made out. It is not however, necessary to give a finding on' the question whether the Third Proviso (relating to deposit of compensation) would apply when the person who is fastened with the liability as 'employer' contends that he is not employer. That is a matter to be argued in the appeal. The petition is dismissed, as having no merit.