Mir Manzoor Gazanfar vs State and Others

Mohammad Yaqoob Mir, J.—Commissioner under Workmen's Compensation Act, 1923 (Assistant Labour Commissioner) Srinagar, vide

judgment dated 26.04.2014 has awarded compensation amounting to Rs. 7,09,826 (rupees seven lac nine thousand eight hundred twenty six) to

be deposited with the said Authority within a period of 30 days. Petitioner (respondent before the Commissioner) filed an application under Order

9 Rule 13 CPC for setting aside the said ex-parte award dated 26.04.2014 which has been rejected by the Commissioner vide order dated

30.08.2014 by holding that the award is not ex parte. Sufficient time was granted to the respondent (petitioner) to prove the case but he did not

choose to contest after causing his appearance has deliberately remained absent.

There being no remedy as against the order dated 30.08.2014 under Workmen's Compensation Act hence the instant petition.

Contention of the learned counsel for the petitioner is that the application under Order 9 Rule 13 of CPC was maintainable, the Commissioner

has wrongly opined that the order is not an ex parte. It is a fact that the petitioner had appeared before the Commissioner but major portion of the

proceedings and final order has been passed in his absence, therefore, has to be termed as an ex parte order.

Contention of the learned counsel carries weight. Perusal of the basic award dated 26.04.2014 is suggestive of the fact that the petitioner

(respondent therein) had appeared he had cross examined some witnesses but later on had remained absent, did not lead any evidence, as a result

whereof case has been decided in his absence, therefore, order falls within the scope of ex parte orders so as to attract applicability of Order 9

Rule 13 CPC.

Ex parte decree can be set aside on the application of the defaulting party on two grounds:

First when a party claims that service was not effected upon him;

Second when the party after appearance has remained absent.

First ground is not available because the party has appeared, there is no question of non-service of summon. So far as second ground is

concerned, it is available to the petitioner. All what petitioner is required to do is to show that he has a sufficient cause which prevented him from

appearance in the subsequent proceedings, therefore, Commissioner was required to examine the application of the petitioner and evidence, if any,

so as to hold that the petitioner willfully remained absent for prolonging the proceedings or there was no cause available to him which prevented

him from prosecuting the proceedings. Since the Commissioner has opined that the order is not an ex parte order, therefore, has not given chance

to the petitioner to project as to what were the circumstances, which would constitute sufficient cause so as to show that he was prevented from

pursuing the proceedings.

Application filed under Order 9 Rule 13 CPC, which is applicable in view of Rule 42 of the Workmen's Compensation Rules, 1924, has to be

decided on merits, order dated 30th August, 2014, as such, is set aside. Learned Commissioner is directed to pass fresh orders on the application

filed for setting aside ex parte award after hearing both the parties.

Learned counsel for the parties shall advise the parties to appear before the Commissioner on 31.12.2014.

Copy of the order be sent to the learned Commissioner for information. Petition shall stand disposed of as above along with connected CMP.