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2017 DIGILAW 985 (JK)

Satvir Gupta Fabricators v. Yasmeen Begum

2017-11-08

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : 1. The appeal has been filed in terms of Section 30 of the Employee’s Compensation Act, 1923. The order i.e. appealed against is dated 20.08.2013 passed by the Assistant Labour Commissioner, Jammu. It appears that when the matter was moved, the Court issued notice on 22.10.2013 subject to the condition that the appellant deposits 50% of the awarded amount with the Registry. Thereafter, on deposit, the respondents/claimants moved an application for withdrawal of 50% of the deposited amount and that was allowed. 2. Today the matter is listed for final arguments. The present appeal has been filed as follows:- “Appeal under Section 30 of the Act against the order dated 20.08.2013 passed by the Hon’ble Assistant Labour Commissioner, Jammu whereby the learned Assistant Labour Commissioner has dismissed the application for setting aside the ex-parte proceedings dated 20.08.2013 (wrongly typed as 20.07.2012) and ex-parte award dated 08.03.2012 as well as the application for condonation of delay filed by the appellant.” 3. The appellant in terms of Section 30 of the Employee’s Compensation Act, 1923 prays for the following relief:- “It is, therefore, humbly prayed that the present appeal may kindly be allowed and set aside the order dated 20.08.2013 passed by the learned Assistant Labour Commissioner, Jammu against the present appellant/respondent and further prayed that the present case be remanded to the learned Assistant Labour Commissioner, Jammu so that the matter would be decided on merits in the interest of justice.” 4. The respondents moved Assistant Labour Commissioner, Jammu for compensation on account of the death of Mohd. Ali, who is husband of Yasmeen Begum Son of Mohd. Sultan and Amina Begum and father of Shakeela Bano, Gulshan Bano and Anayat Ali (daughters and Son of the deceased-all claimants). They pleaded that the deceased was employed with the appellant as a helper. On course of employment and while travelling in appellant’s vehicle, an accident occurred due to rash and negligence driving of the driver-Ravi Kumar and the vehicle fell into a gorge resulting in death of the deceased who was 22 years of age. Claimants pleaded that they are entitled to benefit in terms of the provisions of Employee’s Compensation Act, 1923 for compensation as provided by law. 5. In the proceedings initiated for compensation, the present appellant was noticed. Appellant appeared through counsel Sh. Arvind Manhas. Claimants pleaded that they are entitled to benefit in terms of the provisions of Employee’s Compensation Act, 1923 for compensation as provided by law. 5. In the proceedings initiated for compensation, the present appellant was noticed. Appellant appeared through counsel Sh. Arvind Manhas. Copy of the petition was served so as to enable the appellant/respondent before the Assistant Labour Commissioner to file the objections. It is recorded by the Commissioner under Employee’s Compensation Act (Assistant Labour Commissioner) in the order dated 08.03.2012 that the counsel for the respondent-the present appellant evaded appearance on several dates. Therefore, the appellant/respondent was set ex-parte. Issues were framed and Evidence was recorded. Based on the merits of the claim, an award was passed in a sum of Rs. 4,45,420/- along with interest at Rs. 1,01,258/- (in total Rs. 5,46,678/- as compensation). 6. Thereafter, the present appellant moved an application for setting aside the ex-parte proceedings initiated vide Order dated 20.08.2013 and the ex-parte award dated 08.03.2012 (Annexure-P1). The main reason stated therein was that the counsel failed to prosecute the matter diligently. This application was considered on merits and dismissed by the learned Assistant Labour Commissioner, Jammu by order dated 20.08.2013. Relevant extract of the same is reproduced hereunder:- “Is the cause/reason cited by applicant sufficient enough to set aside an award passed by following due process of law? Should one be depending upon one’s counsels to the extent of even not bothering to know about the status of a pending against him/her? The Court has no hesitation whatsoever in answering both these queries in negative. It is genuinely believed that once one comes to know about the pendency of a case against him, he should exercise utmost caution and sincerity in the matter and not rely completely on the counsel engaged, if any, Moreover, the engagement of a counsel to plead one’s case does not bar one to appear before Court on the day of its listing/hearing. Though not proven yet it can be sic the non-filing of objections by the counsel for applicant is attributable, to a larger extent, to the casual attitude of applicant. That he didn’t bother to appear in the Court even once during the long pendency of case is suggestive of the fact that he took things quite lightly and causally. Though not proven yet it can be sic the non-filing of objections by the counsel for applicant is attributable, to a larger extent, to the casual attitude of applicant. That he didn’t bother to appear in the Court even once during the long pendency of case is suggestive of the fact that he took things quite lightly and causally. Even after having engaged counsels, he was expected to remain in touch with them for better defence on his case and if he has faulted on this count he cannot take refuge of the same and plead for setting aside of award. The applicant has failed to make a case for himself and the pleas taken by him have not been found strong enough to warrant setting aside of award passed against him. The instant application, thus, has been found to be devoid of merit and lacking in substance. In view of the above narrated facts and position, the Court has decided to dismiss the petition and hereby orders accordingly.” 7. It is against this order dismissing the application filed for setting aside the order declaring the appellant ex-parte and the consequent award as well as the condonation of delay in filing application for setting aside, the present appeal is filed invoking Section 30 of the Act. 8. Learned counsel for the respondent primarily objected that the appeal itself is not maintainable because in terms of Section 30 of the Act, what could be challenged by the appellant is an order awarding compensation alongwith interest or penalty as the case may be. In the present case, what has been challenged is the order declining to condone the delay and set aside the order setting the appellant ex-parte. This is not an order that can be appealed in terms of Section 30 of the Act. Respondents’ contention appears to be justified on the plain reading of Section 30 of the Act. Section 30 (1) (a) (aa) reads as follows:- “30-A. 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. (aa) an order awarding interest or penalty under Section 4A.” 9. (aa) an order awarding interest or penalty under Section 4A.” 9. When a query was raised by the Court, under what provisions the appeal is filed. Appellant counsel endorsed that it is filed under Section 30 of the Act. 10. On a reading of the above said provision, it is evident that the order of the Assistant Labour Commissioner declining to condone the delay and set aside the order setting the appellant ex-parte is not an order which can be appealed in terms of Section 30 of the Employee’s Compensation Act, 1923. As against such an order in terms of provisions of Section 30 of the Act, no appeal lies. The Hon’ble Supreme Court in case titled Mohasinali Merchant vs. Shyamlal and Others, 2000 (9) SCC 734 . Paragraph No. 3 of the aforesaid judgment is held as follows:- “3. A perusal of the Workmen’s Compensation Act indicates that an order passed by the Commissioner rejecting an application for setting aside an ex-parte award is not appealable. The appellant could approach only the High Court under Article 226 of the Constitution.” 11. The Hon’ble Division Bench of Karnataka High Court in case titled Preveen Industries and Others vs. Shri Banwar Singh, (1990) 2 ACC 108 (BD). Paragraph No. 6 is held as follows:- “6. A look at the aforesaid provision demonstrates that provisions contained in Order 9, Rule 13 of the Code of Civil Procedure are applicable in the proceedings before the Commissioner. Therefore, an application for setting aside the ex-parte judgment could be filed before the Commissioner. The only question which requires my consideration is whether appeal lies to this Court under Order 43, Rule 1, C.P.C. against the order made by the Commissioner dismissing the application under Order 9, Rule 13, C.P.C. As is evident from the perusal of Rule 41 of the Rules of 1924 the provisions contained in Order 43, Rule 1, CPC are not applicable. Therefore, the intention of the Legislature in enacting the aforesaid provision was to prevent a party to file miscellaneous appeal under Order 43, Rule 1, CPC. Therefore, in my considered opinion in view of Rule 41 of the Rules of 1924, appeal under Order 43, Rule 1, CPC is not competent. Therefore, the intention of the Legislature in enacting the aforesaid provision was to prevent a party to file miscellaneous appeal under Order 43, Rule 1, CPC. Therefore, in my considered opinion in view of Rule 41 of the Rules of 1924, appeal under Order 43, Rule 1, CPC is not competent. My view finds support from Praveen Industries and Others vs. ShriBanawar Singh (supra), wherein the Division Bench of Karnataka High Court indicated thus: The only provision regarding appeal against the orders made by the Workmen’s Compensation Authority is found in Section 30 of the Workmen’s Compensation Act. Under Clause (a) of Section 30(1) an appeal lies to this Court from the orders of the Commissioner awarding compensation. Therefore, it is clear that if an order awarding compensation has been made by the Workmen’s Compensation Authority and thereafter an application was made under Order IX, Rule 13 praying for setting aside that order on the ground that the appellant had been placed ex-parte without justification and that application is dismissed, the only course open to the party is to prefer an appeal against the order awarding compensation as provided in Section 30(1)(a) of the Act. But no appeal can be filed against an order dismissing the application for setting aside the order as there is no provision for filing such appeal under Section 30 of the Act and under Rule 41, the provisions of Order 43, Rule 1, CPC are not made applicable.” 12. The legal position therefore stands resolved on a reading of the provisions of Section 30 (1) (a) and the interpretation of the Hon’ble Supreme Court and the High Courts as above. The facts of the present case are identical to the decided cases as referred to Supra. The appeal filed invoking Section 30(1) of the Act, against the order dated 20.08.2013 dismissing the application for condonation of delay and dismissing the plea for setting aside the order setting the appellant ex-parte is not maintainable. 13. For all what has been stated above, the appeal is not maintainable and is, accordingly, dismissed.