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2018 DIGILAW 1080 (KAR)

Kareem Ahmed H. v. Ramakka

2018-10-30

B.M.SHYAM PRASAD

body2018
JUDGMENT : The present appeal is filed impugning the order dated 25.2.2011 passed by the Labour Officer and the Commissioner for Workmen’s Compensation, Tumkur District, Tumkur (for short. ‘the Commissioner’) in Ka. Aa Tu: Kapaka: CR: MISC. ETC. 2011 IN Ka AaTu: KaPaKa/ CR/147/07. The Commissioner by the impugned order has rejected the application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908 seeking recall of the ex-parte order dated 4.11.2009. 2. The present appeal emanates in the following circumstances. The Respondent Nos.1 to 5 filed a claim petition in proceedings in WCA No.147/2007 under the Employees’ Compensation Act, 1923 asserting that they were the legal representatives of the deceased Kariyanna who suffered fatal injuries in the course of employment with the appellant. The Respondents Nos.1 to 5 arraigned the insurer as one of the co-respondents along with the appellant. The notice of this claim petition was issued to the appellant, but the appellant was not served. Thereafter, service of notice through substituted service was permitted and notice of hearing date of the proceedings was published in a local journal called “Ekesh Patrike”. The appellant, in terms of this public notice, was required to appear before the Commissioner on 13.11.2008. However, the appellant did not appear before the Commissioner and therefore, the claim petition was considered ex-parte and allowed by order dated 4.11.2009. As there was no compliance with the order dated 4.11.2009, communication dated 15.3.2010 was addressed by the Commissioner to the Deputy Commissioner for enforcement of the award. It is at this point of time, the appellant filed an application under Order IX Rule 13 of the Code of Civil Procedure for recall of the ex-parte order dated 4.11.2009. 3. The Commissioner rejected this application under Order IX Rule 13 of the Code of Civil Procedure by the impugned order dated 25.2.2011 considering that the intimation for enforcement of the award was sent to the same address as mentioned in the original claim petition. The appellant had received such intimation. This according to the Commissioner was conclusive that the appellant was also served with the notice of the claim petition and that the appellant had not participated despite such notice. 4. The appellant had received such intimation. This according to the Commissioner was conclusive that the appellant was also served with the notice of the claim petition and that the appellant had not participated despite such notice. 4. The learned counsel for the appellant contended that the appellant had specifically pleaded that when notice at the first instance was sent, the claimant was not in India and he was travelling abroad. As such, the appellant did not know about the proceedings. Further, the local newspaper ‘Ekesh Patrike’, through which substituted service of notice was taken out, does not enjoy wide circulation and that this publication is not subscribed to by the appellant. The learned Counsel submitted that in the light of these circumstances, the appellant is able to establish that he was prevented from participating in the proceedings at the first instance before the Commissioner for bona fide reasons, but these circumstances have not been considered by the Commissioner. 5. On the other hand, the learned counsel for respondents No.1 to 5/claimants contended that the appellant deliberately did not participate in the proceedings and that the application under Order IX was only intended as a dilatory method. However, both the counsel submit that the claimants/respondents No.1 to 5, who are bereaved because of the demise of Kariyanna during the course of his employment and therefore deprived of bread winner, have not been able to receive compensation so far. 6. The short question that arises for consideration is whether the appellant is able to demonstrate that he was prevented by sufficient cause from appearing before the Commissioner on the respective date/s. 7. There is no serious dispute that the appellant was travelling abroad when the notice was sent at the first instance by the Commissioner. In this context, it is noticed that even the present appeal is filed by his power of attorney holder. The substituted service is through a daily which undisputedly did not have a wide circulation. If the appellant was unserved with the first notice because he was travelling, and knowledge of date hearing cannot be imputed because the substituted service was through paper notice via a publication that did not enjoy a wider circulation, it cannot be concluded that the appellant was in the know of the hearing date only because he was served with the intimation for enforcement through the revenue authorities at his last known address. In the circumstances, this Court is of the considered opinion that the appellant is able to establish sufficient cause for his non-appearance on the relevant hearing date. The Commissioner has not appreciated the relevant material/contentions, in the right perspective. 8. At this point, attention of the counsel for the parties is drawn to the fact that the order in the miscellaneous case is impugned and there is no prayer for recalling the ex-parte order dated 4.11.2009. The learned counsel for the parties submit that in view of the aforesaid conclusion by this court, they would have no objection if not only the impugned order dated 25.2.2011 in the Miscellaneous Case No. Ka. Aa. Tu. Kapaka: CR: Misc. in Ka. Aa. Tu: Kapaka: CR 147/2007 is set aside but also the ex-parte order dated 4.11.2009 in No.147/2007 is recalled. In view of the submissions of the learned counsel and also the fact that the claimants, the bereaved dependants, have not had the benefit of the adjudication as contemplated under the Employees’ Compensation Act, both the order dated 25.2.2011 in Miscellaneous Case No. Ka. Aa. Tu. Kapaka: CR: Misc. in Ka. Aa. Tu: Kapaka: CR 147/2007 and the ex-parte order dated 411.2009 in WCA No.147/2007 are set aside. The proceedings in WCA No.147/2007 are directed to be restored. The office is directed to intimate the competent and jurisdictional Tribunal/Court to restore the claim petition on its board for expeditious trial. Such Tribunal/Court shall as expeditiously as possible but with an outer limit of six months from 29.11.2018 dispose of the claim petition. Further, to enable such expeditious disposal, the parties are directed to appear before the competent jurisdictional Tribunal/Court without notice of further hearing on 29.11.2018. The appeal is disposed of in the above terms. No costs.