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Rajasthan High Court · body

2001 DIGILAW 1201 (RAJ)

Khurana Metals v. Jagdish

2001-08-03

S.K.KESHOTE

body2001
JUDGMENT 1. - By this petition under Article 226 of the Constitution, the petitioner is praying for quashing and setting aside of the orders dated 20.6.1994 and 31.7.1994, passed by the respondent No. 2 in case No. WCNF 10/93. 2. The facts of the case are that the petitioner is stated to be a registered partnership firm whose partners are Shri Kishore Khurana and Shri Mahesh Khurana and the registration number of the partnership firm is 2/69/91. The petitioner submitted the Registration Certificate of the firm issued by the Registrar of Firms and the deed of the Partnership. The petitioner submitted in para No. 2 of the petition that the respondent No. 2 is (sic. is not) the workman with the petitioner firm and was never employed in the petitioner firm. The respondent No. 1 has filed a claim petition before the respondent No. 2 and it is submitted thereunder that he was engaged as Foreman with the petitioner firm. It is stated that on 5.12.1992, during the course of employment an accident took place in which he sustained injuries in his right hand. Due to the injuries, his right hand has been permanently disabled. He claimed Rs. 35,000/- as compensation and medical expenses in the tune of Rs. 10,000/-. He also prayed for the interest @ 12% from the date of his accident. The respondent No. I has also prayed for award of Rs. 3,50,000/- as damages. The petitioner has come up with the case that notice of this claim petition was not served upon the petitioner and ex parte order has been made on 31.7.1993 by the respondent No. 2 and the petitioner firm was directed to pay Rs. 40,938/- to this workman. The petitioner has not challenged this alleged ex parte order of the respondent No. 2. The petitioner filed an application before the respondent No. 2 for setting aside of this ex parse order which was came to be rejected under order impugned. Hence, this petition. 3. Mr. Ajeet Bhandari, learned counsel for the petitioner contended that the notice of the claim application was not served on the firm and this ex parte order passed deserved to be recalled and set aside. 4. Hence, this petition. 3. Mr. Ajeet Bhandari, learned counsel for the petitioner contended that the notice of the claim application was not served on the firm and this ex parte order passed deserved to be recalled and set aside. 4. It is next contended that the notice which was sent at the factory address was returned with the note "Factory Closed" and thereafter, the notice was not sent to the petitioner firm but sent to a third person i.e. Shri Ram Khurana who has nothing to do with petitioner firm. 5. Lastly, it is urged that the respondent No. 2 has not considered this important aspect of the matter and in arbitrary manner dismissed the application filed by the petitioner. 6. Mr. Manu Bhargava, learned counsel for the respondent No. 1, in contra, supported the impugned order passed by the respondent No. 2. 7. I have given my thoughtful consideration to the rival contentions made by the learned counsel for the parties. Section 3. of the Workman Compensation Act, 1923 makes a provision of appeal to this court against the award made by the Commissioner under Workmen Compensation Act, 1923. 7. I have given my thoughtful consideration to the rival contentions made by the learned counsel for the parties. Section 3. of the Workman Compensation Act, 1923 makes a provision of appeal to this court against the award made by the Commissioner under Workmen Compensation Act, 1923. Section 30 of the Act aforesaid reads as under : "(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely : (a) an order awarding as compensation as lump sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (b) an order refusing to allow redemption of a half monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased workman or disallowing any claim of a person alleging himself to be such dependent; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of Section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions : Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees :Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner or in which the order of the Commissioner gives affect to an agreement come to by the parties. 8. So the appeal before this Court is maintainable only where in the case a substantial question of law is involved and secondly the proof of the deposit of the amount of compensation with the Commissioner has been filed. The provision of the Section 30 of the Act aforesaid clearly gives the intention of the legislature in the matter of the compensation for the injuries sustained by the workmen in the course of his employment by the workmen in the course of his employment is subject to the very strict provision of the appeal so that injured employee may not be deprived of this amount of the compensation. Secondly, unnecessarily this category of the person may not be dragged in the litigation. Above all, the legislature also secured the payment of the compensation in a case where the employer is desirous of filing an appeal against the award of the Commissioner, Workmen Compensation. 9. In this case, the petitioner is not acting bonafide and fairly. Even if it is taken that the award passed by the Commissioner, Workmen Compensation is an ex parte order, it was an appealable order but it has chosen to file the application for setting aside the ex parte award for the obvious reason to avoid the payment of this amount of the compensation. It is unfortunate that litigants are finding out the ways and devices to circumvent this strict provision of the appeal in the matter against the award of the Commissioner, Workmen Compensation. The Commissioner, Workmen Compensation has not committed any error much less illegality in rejecting the application of the petitioner filed for setting aside the award. 10. The petitioner is admittedly a registered partnership firm but the petitioner very conveniently produced the certificate of the registration of the firm but has not produced the document i.e. entry of the register maintained under Section 67 of the Partnership Act by the Register of the Firms. From this document, it could have been known by the court who are partners of the firm at the relevant time. This document has been withheld by the petitioner. The petitioner has also failed to furnish any explanation as to why this document has not been produced in the Court. From the impugned order, it is clear that the petitioner has also not appeared in the proceedings initiated by it for setting aside the ex parte award before the Commissioner, Workmen Compensation. The petitioner has not produced any document or material or evidence to show that either of the partners of the firm or their advocate was present in these proceedings. This finding of fact, recorded by the Commissioner Workmen Compensation has not been challenged by the petitioner during the course of the argument. From this conduct of the petitioner before the Commissioner, Workmen Compensation, it is clear that the petitioner did not want to contest the matter. It has only interest to delay the matter. This finding of fact, recorded by the Commissioner Workmen Compensation has not been challenged by the petitioner during the course of the argument. From this conduct of the petitioner before the Commissioner, Workmen Compensation, it is clear that the petitioner did not want to contest the matter. It has only interest to delay the matter. In the absence of the document, the entry of the register of the Registrar of Firms maintained under Section 67 of the Partnership Act, it cannot be accepted that these two persons are only the partners of the firm. It is the case where the petitioner has not come with clear hands before the court and Commissioner, Workmen Compensation. 11. In the result, this petitioner fails and same is dismissed with the costs of Rs. 2,000/- to be paid to the workman.Writ Petition Dismissed with Costs of Rs. 2000/-. *******