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2019 DIGILAW 1928 (JHR)

Awadhesh Mishra v. Mala Sharma

2019-11-28

RAJESH SHANKAR

body2019
ORDER : 1. The present writ petition has been filed for quashing the order dated 30.01.2019 (Annexure-3 to the writ petition) passed by the Presiding Officer, Labour Court, Dhanbad in Misc. Case no. 41 of 2018 whereby the application preferred by the petitioner under Order IX Rule 13 of the Code of Civil Procedure (in short C.P.C.) read with Section 151 of C.P.C. for setting aside the ex-parte judgment/award dated 26.09.2017 (Anneuxre-1 to the writ petition) passed by the Presiding Officer, Labour Court-cum-Employee Compensation Commissioner, Dhanbad in W.C. Case No. 01 of 2015, has been dismissed. 2. The brief facts of the case is that on account of death of late Naresh Prasad Sharma, the respondents being his heirs filed a claim case under Sections 3, 4 and 22 of the Employees Compensation Act, 1923 in the court of Presiding Officer, Labour Court-cum-Employee Compensation Commissioner, Dhanbad which was registered as W.C. Case No. 01 of 2015. The petitioner being the employer of late Naresh Prasad Sharma was arrayed as opposite party no. 1 in the said case. The petitioner was issued notice by the said court and thereafter he appeared before the court on 26.04.2016 through his lawyer who filed Vakalatnama on his behalf. Subsequently, no step was taken on behalf of the petitioner in the said case and finally judgment dated 26.09.2017 was passed holding inter-alia that Mala Sharma (the respondent no. 1 herein/the applicant no. 1 in W.C. Case No. 01 of 2015) was entitled to get the compensation to the tune of Rs. 4,07,303/- along with simple interest @ 6% per annum after one month from the date of death of the deceased i.e. 04.09.2014 till the date of actual payment. The petitioner being the opposite party no. 1 of the said case was held liable to pay the said compensation amount and he was accordingly directed to deposit the said amount with said interest within 60 days from the date of the order failing which he was held liable to pay simple interest @ 9% per annum from the expiry of 60 days till the date of actual payment. After lapse of about 11 months, the petitioner filed an application under Order IX Rule 13 read with Section 151 of C.P.C. for setting aside the ex-parte judgment passed by the Presiding Officer, Labour Court-cum-Employee Compensation Commissioner, Dhanbad and the same was dismissed vide impugned order dated 30.01.2019. Hence, the present writ petition. 3. Learned counsel for the petitioner submits that the Presiding Officer, Labour Court, Dhanbad committed a serious error of law in not setting aside the ex-parte judgment dated 26.09.2017 passed by the Presiding Officer, Labour Court-cum-Employee Compensation Commissioner, Dhanbad and same has caused serious prejudice to the petitioner. Learned Presiding Officer, Labour Court, Dhanbad should have appreciated the fact that the petitioner had sufficient reason before the said court to substantiate that he was prevented from appearing before the concerned court before passing the judgment dated 26.09.2017. If the ex-parte judgment dated 26.09.2017 is not set aside, the petitioner will suffer irreparable loss as he would be liable to pay compensation amount in terms with the said judgment without contesting the case. The petitioner had filed medical prescriptions in support of his contention that due to his bad health condition, he could not appear before the Labour Court-cum-Employee Compensation Commissioner, Dhanbad to contest the said case. As such, the impugned order dated 30.01.2019 passed by the Presiding Officer, Labour Court, Dhanbad may be set aside and direction may be issued to the said court to consider the petitioner’s application filed under Order IX Rule 13 read with Section 151 of C.P.C. afresh. 4. Heard the learned counsel for the petitioner and perused the contents of the writ petition including the impugned order dated 30.01.2019 passed by the Labour Court, Dhanbad. The learned Labour Court, Dhanbad has observed in the said order that the petitioner appeared in the compensation case on 26.04.2016 through his lawyer who filed the Vakalatnama on his behalf and also prayed for time to file the written statement. Thereafter, neither the petitioner’s lawyer appeared nor the written statement was filed. Finally, the said case was heard and disposed of vide judgment dated 26.09.2017 in favour of the respondent no. 1. The petitioner filed an application under Order IX Rule 13 read with Section 151 of C.P.C. on 01.08.2018 i.e. after lapse of about 11 months to set aside the judgment dated 26.09.2017. Finally, the said case was heard and disposed of vide judgment dated 26.09.2017 in favour of the respondent no. 1. The petitioner filed an application under Order IX Rule 13 read with Section 151 of C.P.C. on 01.08.2018 i.e. after lapse of about 11 months to set aside the judgment dated 26.09.2017. The petitioner took ground that he was under treatment during the said period and he also brought on record the medical prescriptions in support of the said ground. However, the Labour Court, Dhanbad after considering the entire aspects, dismissed the petitioner’s application vide impugned order dated 30.01.2019. 5. I find no infirmity in the order dated 30.01.2019 primarily due to the reason that it is not a case in which the petitioner was prevented on a single date or few dates due to certain reason to contest the case filed by the respondents. In fact, the petitioner was represented by his lawyer who also filed Vakalatnama and prayed for time to file the written statement. Thereafter, no one appeared on behalf of the petitioner on several dates due to which the case was ultimately disposed of vide judgment dated 26.09.2017. As per the provisions of Order IX Rule 13 of C.P.C. if a decree is passed ex-parte against a defendant, he/she has to satisfy the court that the summons was not duly served to him/her or that he/she was prevented by any sufficient cause from appearing when the suit was called on for hearing. Since there was repeated default on behalf of the petitioner to contest the case, the reason explained by the petitioner before the Labour Court, Dhanbad that he was not well during the said period, cannot be accepted. Once the Vakalatnama was filed on behalf of the petitioner by his lawyer, it was the duty of the lawyer to contest the case and the petitioner was not required to remain physically present before the court concerned. There was a repeated default on the part of the petitioner’s lawyer to contest his case. Hence, the Presiding Officer, Labour Court, Dhanbad has rightly rejected the petitioner’s application filed under Order IX Rule 13 read with Section 151 of C.P.C. 6. In view of the aforesaid discussion, I find no reason to entertain the present writ petition. The same is accordingly dismissed.