High Court · 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.04.2010CORAMTHE HONOURABLE Mrs.JUSTICE R.BANUMATHIANDTHE HONOURABLE Mr.JUSTICE M.VENUGOPALW.A.No.2505 of 2001 Kolandhayee ..Appellant/2nd Respondent vs. 1.The Deputy Commissioner of Labour (Commissioner for Workmen's Compensation Act), Tiruchirapalli – 20.2.The Management of Deccan Sugars (Division of Nava Bharat Ferror Alloys Limited), Pugalur Sugar Factory Post, Pin – 639 113. Tiruchirapalli District... Respondents/Petitioners/1st RespondentWrit Appeal filed under Clause 15 of the Letters Patent Act toset aside the order dated 18.02.2000 made in W.P.No.19515 of 1992and to dismiss the Writ petition.WP.19515/92: This Writ petition filed Under Article 226 of theConstitution of India praying to issue a writ in the nature of awrit of certiorari or other appropriate writ or directions, call forthe records from the file of the 1st respondent herein inW.C.I.A.No.25/1991 and quash the order passed therein dated.26th dayof May 1992.For Appellant : Mr.P.V.Bakthavachalam For Respondent 1: Mr.A.Arumugam Special Govt. Pleader For Respondent 2: Mr.S.Ravindharan for M/s.T.S.Gopalan & Co. https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T Judgment of the Court was delivered by M.Venugopal, J.The Appellant/2nd Respondent has filed this Writ Appeal asagainst the order of the Learned Single Judge dated 18.02.2000 inW.P.No.19515 of 1992.2.The Learned Single Judge, while passing orders in the WritPetition filed by the Appellant/2nd Respondent has inter aliaobserved that 'there is no provision in the Act to entertain such anapplication. The order of the Authority is far in excess of itsjurisdiction. The Authority having some quasi judicial functionsshould exercise it judicially. The order passed by the 1stRespondent cannot be sustained on any ground. There are errorsapparent on the face of records, etc. and resultantly, allowed theWrit petition without costs.'3.According to the Learned counsel for the Appellant/2ndRespondent, the Appellant's husband died while at work and theLearned Single Judge wrongly assumed that there was no applicationfiled for condonation of delay, but the candid fact was that theAppellant indeed filed a set aside application within 30 days on19.08.1991, since I.A.No.6 of 1991 was dismissed for default only on24.07.1991, there was no necessity for filing an application forcondonation of delay in filing the restoration petitionW.C.I.A.No.25 of 1991.4.It is the further contention of the Learned counsel for theAppellant/2nd Respondent that the Learned Single Judge had notappreciated the fact that the 1st Respondent/Authority had passed avalid and considered order in W.C.I.A.No.25 of 1991 and there was nonecessity to interfere with the same inasmuch as the claim was to bedecided on merits and therefore, prays for allowing the Writ appealin the interests of justice.5.In response, the Learned counsel for the 2ndRespondent/Petitioner/ Management supports the order the LearnedSingle Judge in allowing the Writ petition by setting aside theorder passed by the 1st Respondent/Authority and prays that the saidorder may not be interfered with at this stage of the appeal.6.The 2nd Respondent/Writ Petitioner in the Writ petition hadtaken a specific stand that the 1st Respondent/Authority had notassigned any reasons, much less acceptable reasons for setting asidethe order passed in W.C.I.A.No.6 of 1991 on 24.07.1991 and restoringthe W.C.No.101 of 1989 and in fact, the 1st Respondent/Authority hadno jurisdiction to entertain I.A.No.25 of 1991 after dismissing https://hcservices.ecourts.gov.in/hcservices/ I.A.No.6 of 1991, which was filed by the Learned counsel for theAppellant/2nd Respondent on 18.04.1991.7.The substance of the stand of the 2nd Respondent/Petitioner isthat the 1st Respondent/Authority had no jurisdiction to pass ordersto set aide the Ex-parte Order and also restoring the applicationwhich was dismissed for default and the suit does not contemplatesuch a position and in fact, the Appellant/ 2nd Respondent had notfiled any application for condonation of delay in projecting theapplication to set aide the Ex-parte Order and in the absence ofsuch an application, the 1st Respondent/Authority ought not to haveentertained the subsequent application. 8.Also, it is the plea of the 2nd Respondent/Management that theaccident took place in the year 1977 and the application claimingcompensation was filed in the year 1989, after a huge delay of 12years and there was no acceptable reasons furnished on the side ofthe Appellant/2nd Respondent to condone the same and this would pointout that the Appellant/2nd Respondent was never diligent and pursuingthe remedy of claiming the compensation.9.It is to be noted that the Appellant/2nd Respondent filedI.A.No.25 of 1991 before the 1st Respondent/Authority only on19.08.1991 (after the dismissal of I.A.No.6 of 1991) filed forrestoration of appeal viz., W.C.No.101 of 1989, which was dismissedfor default on 18.03.1991. In reality, the said application wasfiled after a gap of 5 months.10.That apart, the order of the 1st Respondent/Authority dated26.05.1992 in allowing the I.A.No.25 of 1991 filed by theAppellant/2nd Respondent was a non-speaking order and no satisfactoryreasons were furnished to reject the contentions of the 2ndRespondent/Writ Petitioner/Management and therefore, the same wasallowed to be set aside.11.The stand of the Appellant/2nd Respondent in the Writpetition was that her husband was employed as a godown worker withthe 2nd Respondent/Petitioner and in the course of his employment, hedied on 23.03.1987 and this aspect could not be re-agitated sincethe same was earlier raised before this Court in W.P.No.3741 of 1990and by an order dated 02.11.1990 in the aforesaid Writ petition, aclear finding was given by this Court in favour of the Appellant/2ndRespondent.12.Continuing further, it is the stand of the Appellant/2ndRespondent that the application, oral evidence and the order of the1st Respondent/Authority dated 26.05.1991 unerringly pointed out hernon-appearance and her counsel's absence were bonafide andtherefore, she was entitled to contest the matter, since she beingan illiterate person, as per finding rendered by the 1st https://hcservices.ecourts.gov.in/hcservices/ Respondent/Authority.13.At this juncture, it is useful for this Court to refer tothe I.A.No.25 of 1991 filed by the Appellant/2nd Respondent whereinshe had among other things stated that she was suffering fromillness and not able to move and appear before the 1stRespondent/Authority on the previous hearing dates on 11.12.1990,08.01.1991 and finally, it was posted to 18.03.1991. Moreover, hercounsel suffered a heart-attack and he was admitted into thehospital for the last few months and therefore, could not made otherarrangements to represent the matter before the 1stRespondent/Authority and also that she was ill and could not appearon 18.03.1991 and as such I.A.No.25 of 1991 was dismissed fordefault on 18.03.1991.14.As a matter of fact, though the Appellant/2nd Respondentcould not contact her counsel, she informed about her illness andher inability to attend the Court on 18.03.1991 and her counselfiled an application to set aside the Ex-parte Order and prayed forrestoration of the same and to decide the case on merits on18.04.1991 and the said application taken on filed as I.A.No.6 of1991 and was posted to 20.05.1991 and adjourned to 28.05.1991 andfinally to 24.07.1991.15.Because of the fact that the Appellant/2nd Respondent wassuffering from Jaundice and her counsel again suffered an HeartAttack both of them could not be present on 24.07.1991 and as suchthe I.A.No.6 of 1991 was dismissed for default and therefore, hadprayed for restoration of I.A.No.6 of 1991 and W.C.No.101 of 1981 tofile for deciding the same on merits.16.The 2nd Respondent/Writ Petitioner in the counter had averredthat numbering of the application inter-locutory as well as thepresent application were not at all maintainable and only option forthe Appellant/2nd Respondent was to file an appeal as also thatreasons adduced by the Appellant/2nd Respondent were not true anddelay was not explained and indeed in the Writ petition filed by theManagement, direction was issued to the 1st Respondent/Authority todispose of W.C. application within four weeks and the time hadalready elapsed and therefore, no relief could be granted to theAppellant/2nd Respondent. Added further, in the absence of anapplication to set aside the dismissal of the inter-locutoryapplication, there was no justification for the Appellant/2ndRespondent to file an application to set aside the Ex-parte Orderpassed on 18.03.1991.17.On going through the order of the 1st Respondent/Authority inI.A.No.25 of 1991 dated 26.05.1992, we find that the 1stRespondent/Authority had clearly opined that the Appellant/2ndRespondent was an aged and illiterate person and further, if her https://hcservices.ecourts.gov.in/hcservices/ counsel had participated in the several hearings, then these typesof dismissal orders would not have been passed. But in the presentcase, the Appellant/2nd Respondent had engaged another counsel whohad conducted the case and examined the witnesses and accordingly,she had performed her part. In short, the 1st Respondent/Authorityhad found Appellant's illiteracy and her ignorance, where twofactors which went against her. Further, the 1stRespondent/Authority had come to the conclusion that theAppellant/2nd Respondent version that she was afflicted with Jaundiceand she took medicine and moreover, she had no adequate facility formedical treatment. 18.It is not out of place for this Court to make a significantmention that Section 23 of the Workmen's Compensation Act, 1923invests the Commissioner with all the powers of the civil Courtunder the Code of Civil Procedure for the purpose of taking evidenceon oath and enforcing the attendance of witnesses and compelling theproduction of documents and material objects. Relevant provisions of the Code of Civil Procedure are (a)Sections 27 to 32;(b)Order XI, Rules 12 to 18;(c)Order XVI;(d)Order XVIII, Rules 16, 17 and 19(e)Further, Rule 41 of the Workmen's Compensation Rules enables thefollowing provisions of First Schedule to the Code of CivilProcedure applicable to proceedings before the Commissioners,viz., those specified in Order V, Rules 9 to 13 and 15 to 30;(f)Order IX and Order XIII, Rules 3 to 10;(g)Order XVI, Rules 2 to 21;(h)Order XVII and Order XXIII, Rules 1 and 2.19.We aptly point out that in Praveen Industries v. BanawalSingh 1990 ACJ 980, the facts were that the Workmen's CompensationCommissioner had allowed the workman's claim to compensation and theemployer filed an application under Order 9, Rule 13 of the CivilProcedure Code to get the order of that Authority set aside on thebasis that it was passed ex-parte. However, the Authority rejectedthat application and the employer preferred an appeal before theHigh Court under Order 43, Rule 1 of the Civil Procedure Code. Theissue before the High Court was whether the appeal was maintainable.The contention was raised that since Order 9, Rules 9 to 13 madeapplicable, the aforesaid application as well as the appeal bothwere maintainable. But the said contention was partly rejected andit was observed by the High Court as follows:"As could be seen from Rule 41, only certainspecified provisions of the Code of Civil Procedure aremade applicable to the proceedings under Workmen'sCompensation Act. Order 9 of Civil Procedure Code is oneof them. Therefore, certainly an application for setting https://hcservices.ecourts.gov.in/hcservices/ aside an ex parte order could be filed under Order 9,Civil Procedure Code before the Workmen's CompensationAuthority...An appeal under Order 43, Rule 1, Civil ProcedureCode lies against an order made under Rule 13 of Order 9in view of clause (d) of Order 43, Rule 7, Civil ProcedureCode. But the said provision is not made applicable tothe proceedings under the Workmen's Compensation Act underRule 41 of the Workmen's Compensation Rules. Therefore,the appeal under Order 43, Rule 1, Civil Procedure Code isnot maintainable."20.Be that as it may, in fact, no appeal is maintainable underSection 30 the Workmen's Compensation Act, 1923 as against an orderrejecting an application for recall of Ex parte Order as perdecision Shravan Pal Singh v. Pooran Nath Goswami (1996) 2 LLN 980.21.Admittedly, the provisions of the Evidence Act are notapplicable before the Commissioner under the Workmen's CompensationAct which are summary in nature.22.We also recall the observations made in Vinlab Export Pvt.Ltd. Nainital v. Karan Bahadur 2006 (110) FLR 416, 417 whereby andwhereunder it is observed that 'under Section 5 of the LimitationAct, condonation of delay application, the workmen cannot bedeprived of right to file claim petition on account oftechnicalities and there should be a liberal approach in condoningthe delay and that the Tribunal's order in condoning the delay wasnot an erroneous one.'23.In fact, Section 5 of the Limitation Act is applicable tothe proceedings under Workmen's Compensation Act as per decisionPremchand v. Workmen Compensation Commissioner and others (2001) LLRSUM 955 (ALLHC).24.Though as per the Workmen's Compensation Act, theCommissioner does not possess the inherent powers of a civil Courtconferred by a Code of Civil Procedure, but the principles of thesaid Section applies to quasi-judicial authorities like theCommissioner Workmen Compensation as per decision K.K.Aboo v. TheWorkmen's Compensation Commissioner 1977 ACJ 446 (Ker).25.We also point out another decision Koli Mansukh Rana v.Patel Natha Ramji 1992 ACJ 772, 778 wherein at paragraph 17, it isobserved thus:"17.Before parting with this judgment, it isdifficult to resist the temptation of mentioning about theapproach of the Learned Commissioner. Needless to mentionthat the proceedings before the Commissioner for Workmen'sCompensation are proceedings not like before a civil court https://hcservices.ecourts.gov.in/hcservices/ and the strict principles of Civil Procedure Code andEvidence Act do not apply as they are applicable in civilproceedings before a civil court. The proceedings underthe Act are distinct and stand on a different footing.Higher responsibility is cast on the Commissioner. Forexample, even under Section 10-A of the Act, theCommissioner is empowered to initiate suo motu inquiryabout an employment accident or injury and to collectnecessary information on receipt of intimation about suchan accident from any source. Rules are also made underthe Act. Therefore, the Commissioner is obliged to seethat the rightful claim arising out of unfortunateemployment injuries is not delayed or defeated on accountof any such technicalities or procedures. The LearnedCommissioner could have resorted to the provisions ofsection 12 of he Act. But unfortunately, though theCommissioner found that the applicant was a workman, didnot award compensation on hypertechnical ground that itwas not proved as to who was the employer. Could aworkman who is legally entitled to compensation on accountof such calamities arising out of employment injuries beleft at the mercy of such technicalities? The LearnedCommissioner, unfortunately, failed to address himself tothe underlying design and desideratum of the provisions ofthe Act and the relevant rules. An illiterate andunsophisticated village labourer remains unpaid and wasdeprived of his rightful compensation for a long spell ofnine years on the altar of technicalities. Be as it may."26.In Management of Venkateswara Industries Chennai v. DeputyCommissioner Labour II, Chennai (2002) LLR 67 (MAD), it is held that'interference by a High Court in setting aside an Ex-parte Order bythe Compensation Commissioner will not be justified.27.In Thangavel v. Saminathan and others 2004 LLR 126, thisCourt has held 'refusal of the Commissioner to set aside an Ex-parteAward on the ground that on an earlier occasion also the permissionto set aside an Ex-parte Order was allowed and again it could not beallowed will not be tenable.'28.In M.S.Grewal v. Deep Chand Sood 2001 (8) SCC 151, theHonourable Supreme Court has held hereunder:"Law Courts will lose their efficacy if they cannotpossibly respond to the need of approach ought not to bethwarted on the basis of such technicality sincetechnicality cannot and ought not to outweigh the courseof justice."29.In N.Balakrishnan v. M.Krishnamurthy 1998 S.C.F.B. and RentC 427, it is held that law of limitation is founded in public policy https://hcservices.ecourts.gov.in/hcservices/ on the 'maxim of interest reipublicae up sit finis litium' i.e. forthe general welfare, and observed thus:"The primary function of a Court is to adjudicate thedispute between the parties and to advance substantialjustice. Time limit fixed for approaching the Court indifferent situations is not because on the expiry of suchtime a bade cause would transform into a good cause."30.In the decision Sakina Bibi v. Shipping Corporation of India2006 (3) CLR 783 CAL : 2006(3) CHN417, it is held that 'refusal tocondone the delay was not proper and in the interests of justice nojustification to disbelieve the explanation of delay that on theassurance of employer she could not file a claim petition withinlimitation.'31.The concept of 'every day's delay must be explained' doesnot mean that a pedantic approach should be made. Really speaking,it must be applied in a rational common sense and pragmatic manner.It is now a well accepted principle that when substantial justiceand technical considerations are pitted against each other, cause ofsubstantial justice deserves to be preferred. After all, the endview is that an elastic approach of a Court of Law in a processualsystem of jurisprudence is to deliver even handed justice on meritsin preference to the approach which stifles decision on merits.32.On a careful consideration of respective parties and bearingin mind of an important fact that the Appellant/2nd Respondent is ailliterate and ignorant person and also considering the facts andcircumstances of the case in an integral fashion on the basis ofavailable materials on record, we are of the considered view thatrules of procedure and the rules of limitation are not meant todestroy the right of parties and in the present case on hand, the 1stRespondent/Authority while allowing I.A.No.25 of 1991 by his orderdated 26.05.1992 had exercised his discretion in proper and soundmanner that too with a justice oriented approach and the said orderdoes not suffer from any vice, arbitrariness or capriciousness andin fact, he had applied the design and desideratum of the provisionsof the Workmen's Compensation Act, 1923 and the rules in a properperspective, but these vital aspects were not taken note of by theLearned Single Judge while allowing the W.P.No.19515 of 1992 dated18.02.2000 and in short, we are not in agreement with theobservation made by the Learned Single Judge that the 1stRespondent/Authority had not applied his mind and there was wilfulfailure on his part to advert to the material circumstances andtherefore, we are perforced to interfere with the said order of theLearned Single Judge and accordingly, allow this appeal by settingaside the order in W.P.No.19515 of 1992 dated 18.02.2000 to preventaberration of justice. https://hcservices.ecourts.gov.in/hcservices/

33.In the result, the Writ Appeal is allowed leaving theparties to bear their own costs. Resultantly, the order passed bythe Learned Single Judge in W.P.No.19515 of 1992 dated 18.02.2000is set aside. Having regard to the facts and circumstances of thecase, there shall be no order as to costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrargmTo1.The Deputy Commissioner of Labour (Commissioner for Workmen's Compensation Act), Tiruchirapalli – 20.+ 1 CC to M/s.J.Saravana Vel,Advocate,SR.25251+ 1 CC to M/s.T.S.Gopalan & Co.,,Advocate,SR.25229+ 1 CC to Government Pleader,SR.25688W.A.No.2505 of 2001RJ(CO)EM/27.4.10