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2013 DIGILAW 723 (PAT)

Narendra Singh Bhamra v. Kaleshwari Devi

2013-07-01

JYOTI SARAN

body2013
ORDER 1. Heard Mr. Prashant Kashyap, learned counsel appearing for the appellant, Mr. Amarnath Deo, learned counsel appearing for respondent no.1 and Mr. Sachchidanand Singh, learned counsel appearing for respondent nos.2 to 4. Re: I.A. No.8177 of 2010: 2. This interlocutory application has been filed for condonation of delay in filing the appeal. Mr. Kashyap explaining the delay in filing the appeal has submitted that for the first time he gathered knowledge of any litigation was after receiving a notice from the executing court requiring him to appear on 24.11.2009. It is contended that the appellant filed a petition raising objection as to the maintainability of the proceedings. It is stated that the objection filed on 22.11.2009 has remained pending with the executing court since as per knowledge of the appellant no order was passed thereon rather it is only upon receipt of the second notice from the executing court requiring him to appear on 02.6.2010 that prompted him to file the appeal in question and which was filed without any excessive delay. Referring to the provisions of section 30 (2) and (3) of the Workmen’s Compensation Act it is submitted that the circumstances are sufficient for condonation of delay. 3. Having heard learned counsel for the appellant and the respondents on the issue of limitation I am satisfied that the explanation given by the appellant is sufficient for condonation of delay. As a consequence the delay occasioned in filing the appeal is condoned. 4. I.A. No.8177of 2010 stands allowed. Re: M.A. No.643 of 2010: This appeal under section 30 (1) (a) of the Workmen’s Compensation Act 1923 (hereinafter referred to as ‘the Act’) is directed against the award dated 22.9.2008 passed by the Deputy Labour Commissioner-cum-Commissioner, Workmen’s Compensation, Patna in Case No.WC-10 of 2005 (C). 6. With the consent of the parties the matter has been taken up for disposal at this stage itself. The facts of the case leading to the present appeal in brief is that the deceased who is the son of the applicant-respondent no.1 was an employee under the appellant. It is the case of the applicant that the condition of his son deteriorated on 13.12.2003 while on duty following which he was admitted to M.M Jain Hospital at New Delhi on 14.12.2003 where the doctors diagnosed that he was suffering from acute pneumonia. It is the case of the applicant that the condition of his son deteriorated on 13.12.2003 while on duty following which he was admitted to M.M Jain Hospital at New Delhi on 14.12.2003 where the doctors diagnosed that he was suffering from acute pneumonia. The son of the applicant succumbed to the ailment on the same day, i.e. 14.12.2003. After service of legal notice on the employer, the claim case in question was filed under the Act and which has since been allowed ex-parte against the appellant. Hence this appeal. 7. In terms of the provisions of section 30 of the Act, no appeal shall lie against any order passed by the Commissioner under the Act unless it involves a substantial questions of law. Initially this appeal was filed without framing any such substantial question of law but the defect being noticed, the same was removed by the appellant and four substantial questions of law have been raised in this appeal including whether the notice on the appellant could be treated as valid. Since this substantial question of law went to the root of the matter, hence this Court permitted arguments to be advanced on this issue before considering other substantial questions of law so raised. 8. Mr. Prashant Kashyap, learned counsel appearing for the appellant has straightaway referred to the records which has been summoned under the orders of this Court and with reference to the order passed on 11.4.2005 it is stated that although the claim case was registered on the same day and order was passed for issuance of registered notice on the opposite parties but the order was apparently not carried out since neither the records reflect whether the requisites were furnished by the applicant nor is there any recording of issuance of notice. It is stated that the Commissioner without appreciating this position, on the very next date fixed, i.e. 30.8.2005 without satisfying himself as to whether the notice was served on the appellant, mechanically recorded his absence treating the notice having been issued and served on the opposite party-appellant. Mr. It is stated that the Commissioner without appreciating this position, on the very next date fixed, i.e. 30.8.2005 without satisfying himself as to whether the notice was served on the appellant, mechanically recorded his absence treating the notice having been issued and served on the opposite party-appellant. Mr. Kashyap thus raising this question of law in the backdrop of the provisions of Order 5 rules 17 and 19 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) submitted that in case where there is no record of service of notice, until such time that the court concerned after examination of the serving officer records his satisfaction upon the service of summons the matter could not have been proceeded ex-parte. He submits that the appellant gathered knowledge of the order passed in the claim case only upon receipt of the notice in the execution case and whereafter the miscellaneous appeal has been filed along with an application for condonation of delay bearing I.A. No.8177 of 2010. 9. It is the submission of Mr. Kashyap that a service of notice is a finding of fact and no presumption can be drawn on this aspect. It is submitted that in absence of any evidence of posting of the registered notice and in absence of any recording by the office regarding issuance of notice and/or service thereof, any such presumption drawn regarding service of such notice, would be contrary to the statutory provisions underlying Order 5 of the Code. Learned counsel in support of his submission has relied upon the following judgments: (i) AIR 1959 Patna 540 (Smt. Banarasi Debi vs. New India Assurance Co. Ltd.), paragraph 17. (ii) AIR 1986 Bombay 386 (Raghunath Eknath Hivale vs. Shardabai Karbhari Kale), paragraph 2. (iii) AIR 1986 SC 1099 (M/s Sodhi Transport Co. vs. State of U.P.). (iv) 1993 Supp. (1) SCC 431 (R.K. Vashisht vs. Union of India). 10. It is thus submitted that where the notice has not been validly served on the appellant, he cannot be deprived of hearing before any final order was passed by the Commissioner under the Act. 11. The submission of Mr. Kashyap has been contested by Mr. Deo, learned counsel appearing for respondent no.1. However, despite his efforts, he could not justify the incontrovertible position emanating from the records regarding non-service of notice upon the appellant. 11. The submission of Mr. Kashyap has been contested by Mr. Deo, learned counsel appearing for respondent no.1. However, despite his efforts, he could not justify the incontrovertible position emanating from the records regarding non-service of notice upon the appellant. The order-sheet in the claim case is completely silent whether or not in compliance of the direction of the Commissioner under the Act the registered notice was ever filed by the applicant and even if filed, whether notice was issued by the office and if the registered notice had been issued whether its undelivered cover or the acknowledgement ever returned. It is thus manifest from the records that the notice was not validly served on the appellant and as a consequence he has been deprived of participation and hearing before the Commissioner before the final order was passed in the claim case. 12. On this score this Court is reminded of a judgment of the Supreme Court reported in (2002)5 SCC 377 (Sushil Kumar Sabharwal vs. Gurpreet Singh) and the relevant portion of paragraph 12 which is being reproduced hereinbelow would demonstrate the obligation cast upon the trial court to satisfy itself as regarding service of notice, before proceeding ex-parte in any matter. “12…The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being “proved” that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his….”. 13. The same opinion has been expressed by the Supreme Court in a recent judgment reported in (2011)3 SCC 545 (Parimal vs. Veena). 14. 13. The same opinion has been expressed by the Supreme Court in a recent judgment reported in (2011)3 SCC 545 (Parimal vs. Veena). 14. In view of the undisputable factual position regarding non-service of notice on the appellant and in view of the judicial pronouncements on this issue, there cannot be any other conclusion but to hold the ex parte award unsustainable. 15. The decks having been cleared on the non-service of notice on the appellant, it is to be seen whether the appellant could have straightaway come before this Court raising such issue in terms of Order 9 rule 13 of the Code. This issue stands answered by judgment of the Supreme Court reported (2008)7 SCC 663 (Rabindra Singh vs. Financial Commissioner), paragraph 12. It has been held that the aggrieved parties have liberty to choose the forum, be it an application under Order 9 rule 13 of the Code, a review, a suit or an appeal raising such issue. In view of the said position the present appeal raising such issue is very much maintainable. 16. In the result the judgment and award dated 22.9.2008 passed by the Deputy Labour Commissioner-cum-Commissioner Workmen’s Compensation, Patna in Case No. WC-10 of 2005 (C) is set aside and the matter is remitted back to the Deputy Labour Commissioner for hearing and disposal afresh in accordance with law after allowing the appellant to file his written statement and to lead his evidence and after permitting the contesting parties to cross-examine the witnesses. 17. This appeal is allowed with the directions aforementioned. 18. Let the lower court records be transmitted to the court below forthwith in a sealed cover. As the parties are in attendance before this Court, they shall appear before the Deputy Labour Commissioner along with a copy of this order on 15.07.2013 when the Deputy Labour Commissioner or the Commissioner under the Act shall fix a date and from which date onwards the matter would proceed day to day without giving any undue adjournment to any of the parties and if the Commissioner is of the opinion that any party is trying to delay the matter, he shall be at liberty to proceed ex-parte against such party after recording his satisfaction. It is expected that the Deputy Labour Commissioner after giving opportunities to the parties to present their case shall conclude the proceedings within three months from the date the re-hearing starts.