Sri Krishna Hotel vs Devale Nayak

R. Gururajan, J.—Petitioner Krishna Hotel is before me challenging the order passed by the 2nd respondent in WCA:Misc:CR: 1/2003 Dt. 3.2.2004 vide Annexure-F.

Facts in brief are as under: Petitioner is a proprietory concern. 1st respondent filed an application u/s 23 of the Workmen''s Compensation Act, 1923, before the Commissioner for Workmen''s Compensation, Hubli. It is the case of the 1st respondent that his son along with some other employees used to go to Nuchambli Bavi at the instruction of the employer to take bath as there was shortage of water in the hotel. On 1.8.2000, the deceased son of the 1st respondent went to Nuchambli Bavi and at the time of taking bath, he slipped into the well and later on he died. It was contended that the deceased son was employed by the petitioner with facilities of food and residential accommodation. 1st respondent being the dependent of the deceased son, claimed compensation of Rs. 2,50,000/- towards loss of earning and mental suffering and agony. Notice was issued. Matter was contested. 2nd respondent framed 6 issues. According to the petitioner, he did not frame issue relating to relationship of employer and employee. 2 witnesses were examined on behalf of the petitioner, respondent got examined one witness. Time was sought for leading evidence. Petitioner could not attend and lead evidence on 12.3.2003. Commissioner taking note of the absence of the counsel, posted the matter for passing of an order. No date was communicated. An order was passed on 28-5-2003 without hearing the parties and directed the petitioner to pay a sum of Rs. 1,13,190/- with interest. On coming to know of the order an application was filed in Misc. Application No. WCA Misc. CR 1/2003 under Order 9 Rule 13 CPC. Objections were filed. Matter was heard. After hearing the authority rejected the said misc. application. Petitioner is before me challenging both these orders.

Heard the learned counsel appearing for the respective parties and perused the impugned orders.

Sri. Shastry learned counsel would argue that both the orders require interference by this Court. He contends that there is no employment injury providing a cause of action to the 1st respondent. Even otherwise, he says that valuable opportunity has been denied to his client in as much he could not lead evidence in the matter. Without opportunity and without hearing, an adverse order has been passed by the Commissioner. When the same was sought to be recalled by way of an application, the said application also stood dismissed. Counsel says that the rejection of the application is unsustainable. He wants interference by this Court. He relies on a judgment of this Court reported in PRAVEEN INDUSTRIES and Ors. and BANAWAR SINGH 1990(60) F.L.R. 587 and also Kamakshi Vs. Jugraj Jain, .

Per contra, learned counsel for the respondent supports the order. He relies on a judgment of the Madras High Court in C.R. Corera and Bros. Vs. The Chief Secretary, Govt. of Pondicherry, .

After hearing, I have carefully perused the material on record.

Admittedly petitioner has suffered an award at the hands of the Workmen''s Compensation Commissioner. The Act specifically provides for an appeal u/s 30 of the Act. Admittedly, in the case on hand, the award at Annexure-C is an appealable order. Petitioner in the case on hand has chosen to file an application purporting to be under Order 9 Rule 13 of CPC seeking for an order to set aside the exparte award passed by the Authority. The Authority after noticing the objection has chosen to reject the same holding that it is not an exparte order.

The Act is a social welfare legislation. It provides for remedies in the event of employment injury arising out of and in the course of employment in terms of Section 3 of the Act. As I mentioned earlier, a right of appeal is provided u/s 30 of the Act. Section 23 of the Act provides for powers and procedure of Commissioners. The Commissioners shall have all the powers of a Civil Court under the Code of Civil Procedure, for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and compelling the production of documents and material objects and the Commissioner shall be deemed to be Civil Court for all the purposes of Section 195 and of Chapter XXVI of the Code of Criminal Procedure. All the provisions of CPC strictly speaking may not be available to the Commissioner. Even otherwise, it is seen that Order 9 Rule 13 would provide for setting aside an exparte decree against the defendant. It provides for an exparte order being set aside in the event of an application to the Court by the aggrieved person. The authority is to be satisfied that the summons was not duly served or that he was prevented by any sufficient cause for hearing. In such cases u/s 22N Commissioner had the power to set aside the exparte order. The proviso to Order 9 Rule 13 would state that no Court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff''s claim,

In the case on hand, it is seen that the matter was set down on 12.3.03. Petitioner had the knowledge of the proceedings in terms of the order sheet. Neither the petitioner nor his counsel was present on 12.3.03. In those circumstances, the matter was adjourned to 19.3.03 and thereafter to 30.4.03. Ultimately on 28.5.03 an order has been passed. In the light of these dates, it cannot be said that the petitioner had no notice of hearing as such. Even otherwise, it is seen that the petitioner had sufficient time to appear on 19.3.03 or 30.3.03. He has failed to do so. In fact, in the affidavit filed in support of the application, no reasons are assigned as to why the petitioner could not be present on subsequent dates. In terms of proviso, no sufficient reasons are shown in terms of the affidavit. Commissioner taking note of these aspects of the matter has rightly rejected the application.

This Court in M/s. Praveen Industries case has rules as under:

"An appeal under Order 43, Rule I, C.P.C. lies against an order made under Rule 13 of Order IX in view of Clause (d) of Order 43, Rule 7 C.P.C. But the said provision is not made applicable to the proceedings under the workmen''s Compensation Act under Rule 41 of the Workmen''s Compensation Rules. Therefore, the appeal under Order 43, Rule 1, C.P.C. is not maintainable.

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 exparte 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 an appeal u/s 30 of the Act and under Rule 41, the provisions of Order XLIII, Rule 1, C.P.C. are not made applicable."

This Court has notice that in the event of an adverse order under order IX Rule 13 the only course open to a party is to prefer an appeal against an award awarding compensation in terms of Section 30 of the Act.

Relying on the Division Bench judgment liberty is reserved to the petitioner to challenge the main award in the present circumstances. Counsel also relies on a Judgment of the Madras High Court in Kamakshi Vs. Jugraj Jain, . It is seen from the said judgment that in that case the defendant was present and her counsel was absent. It was in those circumstances, the Court interfered in the said case. The present set of facts stand on a different footing. Even otherwise, I am of the view that writ remedy is purely discretionary in nature. When the petitioner has a remedy of appeal, it is not desirable for this Court to interfere against such miscellaneous orders as in the present case.

Looking from any angle, no grounds are made out for my interference. Petition is rejected with liberty in terms of my findings, No costs.