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2007 DIGILAW 762 (PNJ)

Brij Lal v. Commissioner Under The Workmens Compensation Act

2007-03-30

HEMANT GUPTA

body2007
Judgment Hemant Gupta, J. 1. This order shall dispose of Civil Writ Petition Nos.18550 and 19529 of 2005, as common questions of law and facts arise in both the writ petitions. However, for the sake of convenience facts are taken from Civil Writ Petition no.18550 of 2005. 2. The challenge in the present writ petition is to the order dated 17.11.2005, whereby an application filed by the petitioner under Order 9, rule 13, Code of Civil procedure was dismissed. 3. On account of death of one Sher singh, while digging the well on the land owned by the petitioner, his legal representatives filed an application under the workmens Compensation Act, 1923 (forshort the Act) before the Commissioner. Learned Commissioner passed an order on 3.6.2002 awarding a sum of Rs.3,14,000 as the compensation. The said award was passed ex parte as none appeared for the petitioner in spite of the fact that the registered notices were sent to the petitioner. 4. Subsequently, the petitioner moved an application on 8.9.2004 for setting aside of the award of determining the amount of compensation. The said application has been dismissed. It has been found that a registered letter was sent to the petitioner and another registered letter dated 2.6.2003 was sent after final order was passed for depositing the amount of compensation, whereas the application for setting aside the ex parte order was typed on 28.7.2004 and affidavit attested on 29.7.2004 but the same was filed on 8.9.2004. Thus, it was found that the application is without any merit. 5. Writ petition came up for the hearing before this court on 29.11.2005. The writ petition was admitted and the payment of compensation in excess of Rs.1,00,000 was stayed. An application has been filed by the legal heirs of deceased Sher Singh on the ground that the petitioner is playing every kind of trick to avoid his liability and, therefore, the stay granted by this court be vacated. 6. On 5.2.2007, the learned counsel for the petitioner had taken time to satisfy as to how the writ petition against the order passed by the Commissioner under the act is maintainable as such order is appealable order. 7. 6. On 5.2.2007, the learned counsel for the petitioner had taken time to satisfy as to how the writ petition against the order passed by the Commissioner under the act is maintainable as such order is appealable order. 7. The sole argument raised by the learned counsel for the petitioner is that though the award rendered by the commissioner under the Act is appealable, but the present writ petition is not directed against the award passed by the learned commissioner but against the order dealing the setting aside of an ex parte order of determining of compensation. The said order refusing to set aside the ex pane award is not appealable and, therefore, the writ petition is maintainable before this court. 8. On the other hand, learned counsel for respondents has relied upon a Division bench judgment of this court reported as piara Singh V/s. Commissioner, Workmens compensation under Workmens Compensation act, 1987 Lab IC 818, to contend that the Act is a welfare legislation meant to provide speedy remedy to the workmen for the injuries suffered by them in the course of their employment. The Act has made provisions to entertain the appeal only on payment of compensation and that too on substantial question of law. It is further contended that the order declining the application for setting aside ex pane award is in fact an order maintaining the order awarding compensation and, therefore, such an order is appealable in terms of sec. 30 (1) (a) of the Act. 9. Before proceeding further, it will be advantageous to refer to sec. 30 of the act, the provisions whereof read as under: "30. Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely: (a) an order awarding as compensation a 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. " 10. Admittedly, an ex parte award was passed against the petitioner on 3.6.2002. Such an award is undisputedly appealable in terms of sec. 30 (1) (a) of the Act. An order passed on an application for setting aside of an ex parte order is not an independent order. The effect of such an order is that the order granting compensation is maintained. Therefore, the said order would be appealable order. Such an award is undisputedly appealable in terms of sec. 30 (1) (a) of the Act. An order passed on an application for setting aside of an ex parte order is not an independent order. The effect of such an order is that the order granting compensation is maintained. Therefore, the said order would be appealable order. If the contention of the petitioner is to be accepted, it will lead to anomalous results and will defeat the objects of the Act. The said interpretation would be misused by the employers to bypass the provisions of the Act, i. e. , pre-deposit the amount of compensation in appeal and also without raising any sub-stantial question of law. Therefore, keeping in view the objects of the Act and to avoid anomalous results in providing different forums for redressal of the grievances, it is held that the order refusing to set aside of an ex parte order is an appealable order. 11. In view thereof, the present writ petitions are not maintainable. The same are dismissed as such. However, it is made clear that the petitioner is at liberty to seek his remedy in accordance with law. Petition dismissed.