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Himachal Pradesh High Court · body

2012 DIGILAW 743 (HP)

J. B. Rolling Mills Limited v. Dalip Kumar

2012-10-19

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. Respondent No.1 (hereinafter referred to as the ‘workman’ for convenience sake) filed a petition under section 4 of the Workmen Compensation Act, 1923 (hereinafter referred to as the ‘Act’ for brevity sake) for grant of compensation on account of 15% permanent disability caused to him due to accident which occurred in the course of his employment under the respondent during the working hour in the factory on 19.4.2006 at about 12.00 noon. It was registered as case No. 15 of 2007. The workman was working as Senior Mould Setter and was getting ` 3,600/- per month as salary. He was 20 years old at the time of receiving injury. Petitioner was proceeded ex parte, as it did not appear before the Commissioner despite the service of summons. Learned Commissioner framed the issues. He awarded a sum of ` 72,576/- to the workman on 21.7.2008 after taking into consideration the attendance card in which attendance of the workman has been marked on 19th April Ex.P-1, copy of legal notice and receipt of the registered letter Ex.P-1/J. The workman has also placed on record copy of prescription slip of the doctor Ex.P-1/B. The Chairman, Medical Board has also issued certificate Ex.P-1/K revealing that the disability of the workman as 15%. Thereafter, the workman filed an execution petition for the implementation of order dated 21.7.2008. The employer filed an application for setting aside the ex parte order dated 21.7.2008 on 21.10.2011. The application was rejected by the Commissioner Employees’ Compensation on 18.1.2012. 2. It is evident from the order dated 18.1.2012 that the employer’s advocate had appeared before the Commissioner during the course of execution proceedings on 23.11.2009 and thereafter on 21.12.2009. The matter was listed for proper orders on 11.1.2010. The presence of learned advocate appearing on behalf of the employer was marked. The presence of advocate of employer was also marked on 24.2.2010 and 16.3.2010. Learned Commissioner Employees’ Compensation directed to trace the original file. The original file was traced and the order was passed on 2.8.2011. Advocate had appeared on behalf of employer on 2.9.2011. He had made prayer for conciliation and sought time to deposit the amount on 27.9.2011. However, the fact of the matter is that the amount was not deposited even on 14.10.2011. Thereafter, application was filed for setting aside the award dated 21.7.2008 only on 21.10.2011. Advocate had appeared on behalf of employer on 2.9.2011. He had made prayer for conciliation and sought time to deposit the amount on 27.9.2011. However, the fact of the matter is that the amount was not deposited even on 14.10.2011. Thereafter, application was filed for setting aside the award dated 21.7.2008 only on 21.10.2011. The application for setting aside the order dated 21.7.2008 was not filed within the period of 30 days. The award has been made on 21.7.2008. 3. Mr. Ajay Vaidya has argued that since the file was not traceable, the application could not be filed earlier. The file was traced out on 2.8.2011. Despite that an application has been filed on 21.10.2011 for setting aside the ex parte award. There is sufficient material on record to establish that the employer knew about the ex parte award dated 21.7.2008 since the presence of employer’s advocate has been marked on 23.11.2009 in execution petition. The advocate appearing on behalf of the employer sought time for conciliation and to deposit the amount. The amount was not deposited as undertaken on 27.9.2011. It is also established that even on 23.6.2009 when the application was moved for summoning the original case, the employer knew about the ex parte award dated 21.7.2008. The employer was served as per notice dated 13.9.2006 in the main proceedings and despite that there was no representation on behalf of the employer before the learned Commissioner. 4. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.