Awadhesh Mishra, aged about 50 years, son of late Shyam Kumar Mishra, resident of v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 330 of 2020 Awadhesh Mishra, aged about 50 years, son of late Shyam Kumar Mishra, resident of Phus Banglow, PO Bhaga, PS Jharia, District Dhanbad. Versus …. Appellant 1. Mala Sharma, widow of late Naresh Prasad Sharma; 2. Gopi Sharma; 3. Gopan Sharma Both Nos. 2 and 3, sons of late Narendra Prasad Sharma; 4. Sunit Sharma, daughter of late Narendra Prasad Sharma; All are residents of House No.12, Parbad, Laxmi Colliery, PO Khas Jeenagora, PS Jharia, District Dhanbad. …. Respondents ------ CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND For the Appellant : Mr. A. K. Sahani, Advocate ------- -------- 08/ Dated: 11 Per. Sujit Narayan Prasad, J. th July 2023 I.A. No. 3456 of 2022 The instant application has been filed for condoning the delay of 347 days in filing the present appeal. 2. 3. Heard learned counsel for the appellant. In view of reason assigned in the application, the delay in filing the appeal is condoned. 4. 5.
Decision
Accordingly, I.A. No. 3456 of 2022 stands disposed of. L.P.A. No. 330 of 2020 The instant intra-court appeal, under Clause-10 of the Letters Patent, is directed against order dated 28.11.2019 passed in W.P.(C) No. 3311 of 2019 by which the learned Single Judge declined to interfere with order dated 30.01.2019 passed by learned Presiding Officer, Labour Court, Dhanbad in Misc. Case No. 41 of 2018, by which the application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure for setting aside ex-parte award dated 26.09.2017 passed in W.C. Case No. 01 of 2015 has been dismissed. 6. The brief facts of the case as per the pleading made in the writ petition which is required to be referred reads as under: (i) On account of death of late Naresh Prasad Sharma, the 2 LPA No. 330 of 2020 respondent nos. 1 to 4 filed an application under Sections 3, 4 and 22 of the Employee's Compensation Act, 1923 before the Presiding Officer, Labour Court, Dhanbad being W.C. Case No. 01 of 2015. Naresh Prasad Sharma was an employee of the appellant working as driver in his truck. Unfortunately, the said truck met with an accident causing death of the driver. (ii) On issuance of notice, the appellant appeared before the court on 26.04.2016. Subsequently, no step was taken on behalf of the appellant in the said case and finally judgment dated 26.09.2017 was passed directing the appellant to pay a sum of Rs.4,07,303.00/- with interest @ 6% interest per annum from the date of death of the deceased employee. The appellant 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. (iii) The appellant filed an application under Order IX Rule 13 read with Section 151 of C.P.C. for setting aside the said ex-parte judgment dated 26.09.2017 before the Presiding Officer, Labour Court, Dhanbad which was registered as Misc. Case No. 41 of 2018 but the same was dismissed vide impugned order dated 30.01.2019. (iv) For redressal of his grievance, the appellant preferred writ petition being W.P.(C) No. 3311 of 2019 challenging the order dated 30.01.2019 passed by the Presiding Officer, Labour Court, Dhanbad in Misc. Case No.41 of 2018 whereby Labour Court declined to set aside the ex-parte order dated 26.09.2017 passed in W.C. Case No.01 of 2015. But, the writ Court dismissed the said writ petition vide order dated 28.11.2019 holding that the Presiding Officer, Labour Court, Dhanabd has rightly rejected the petitioner's application filed under Order IX Rule 13 read with Section 151 of C.P.C. Hence, the present Letters Patent Appeal. 7. It appears from the pleading made as referred hereinabove that when the proceeding has been initiated being W.C. Case No. 01 of 2015 the appellant, namely, Awadhesh Mishra had appeared and filed vakalatnama as also prayer for time to file the written statement was sought, but, thereafter, none represented the appellant and, accordingly, the award was passed on 26.09.2017 in absence of the appellant, thereafter, execution case has been 3 LPA No. 330 of 2020 filed. The appellant at the stage of the execution proceeding before the learned Presiding Officer, Labour Court has filed an application under Order IX Rule 13 of the CPC for setting aside the said ex-parte award dated 26.09.2017 but the same has been dismissed holding it to be not maintainable on the ground that the Commissioner is having no power/authority to make any alteration in the award if once signed and pronounced, since, under the provision of Rule 32 of the Workmen's Compensation Rules, 1924 there is no such power of review vested with the Commissioner. The appellant being aggrieved with the said order has preferred a writ petition being W.P.(C) No. 3311 of 2019. The learned Single Judge has declined to interfere with the findings so recorded by the Presiding Officer, the Commissioner, under the Employee's Compensation Act by dismissing the writ petition against which the present appeal. 8. Mr. A. K. Sahani, the learned counsel appearing for the appellant has submitted by referring to the provision of Order IX Rule 13 of the CPC that the conditions are stipulated therein for maintaining an application under Order IX Rule 13 of the CPC, first being, if the decree has been passed without service of due notice upon the defendant or the second is that if the defendant has failed to put its appearance and in absence, the decree has been passed the defendant is to show the sufficient cause for setting aside the ex- parte order. According to the learned counsel for the appellant the second condition, i.e., the appellant was prevented from appearing before the authority and, as such, the ex-parte award was passed and to that effect the reasons have also been assigned but the same has not been appreciated, rather, the learned Presiding Officer has held the aforesaid application to be not maintainable. The order by which the application has been held to be not maintainable, according to the learned counsel for the appellant, is absolutely improper order, since, when the sufficient cause was shown then it was incumbent upon the Presiding Officer to deal with before rejecting the aforesaid petition but instead of doing so the application has been held to be not maintainable. 4 LPA No. 330 of 2020 The aforesaid order was challenged before this Court and the learned Single Judge has also accepted the view of the learned Presiding Officer, the Labour Court and while dismissing the writ petition the merit has also been discussed. The learned counsel for the appellant, therefore, submits that order passed by the learned Single Judge suffers from infirmity as also the order dated 30.01.2019 passed by the learned Presiding Officer, Labour Court, Dhanbad. 9. We have heard the learned counsel for the appellant, perused the document available on record as also the finding recorded by the learned Single Judge in the impugned order. We have also appreciated the finding recorded by the learned Presiding Officer while dealing with the application filed under Order IX Rule 13 of the CPC. The fact which requires consideration that the findings so recorded by the learned Presiding Officer, Labour Court, Dhanbad produced the application filed under Order IX Rule 13 of the CPC to be not maintainable suffers from any infirmity or not. This Court in order to scrutinize the aforesaid fact deem it fit and proper to first consider the authority of the Presiding Officer who is working as a Commissioner within the meaning of the Employee's Compensation Act, 1923 (in short, the Act, 1923). Under the provision of the Workmen's Compensation Rules, 1924 of Rule-32 the power has been conferred upon the Commissioner to the extent that the Commissioner, in passing orders, shall record concisely a judgment, his finding on each of the issues framed and his reasons for such finding. It appears from the Provision of Rule-32 that the Commissioner is having no power of making any addition or alteration after the judgment having been signed and pronounced save and except the correction in the clerical or arithmetical mistake arising from any accidental slip or omission can be exercised. The further question that as to whether the Code of Civil Procedure is applicable in strict sense so far as the proceeding arising out of the Act, 1923 which contains two provisions in this regard, i.e., one under Section 23 and another under Section 25. Section 23 stipulates the power and procedure of Commissioner 5 LPA No. 330 of 2020 by which the Commissioner is to exercise power of Civil Court under the Code of Civil Procedure, 1908 for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and compelling the production of documents and materials objects, for ready reference, Section 23 is being referred as under: “23. Powers and procedure of Commissioners.-The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, "[and the Commissioner shall be deemed to be a Civil Court for all the purposes of [section 195 and of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974]].” It, thus, appears that in view of the provision of Section 23 of the Act, 1923 the power so far as the purpose of taking evidence on oath and of enforcing the attendance of witnesses and compelling the production of documents and material objects is to be exercised in terms of the procedure laid down under the Code of Civil Procedure, meaning thereby the other provisions as stipulated in the Code of Civil Procedure cannot be exercised by the Commissioner within the meaning of the Act, 1923. The aforesaid fact is further being clarified from the provision of Rule-25 wherein the method of recording evidence has been stipulated. Although the procedure which is to be followed while recording of the evidence as per Order XVIII of the CPC has not been mentioned, rather, the procedure is altogether different wherein the Commissioner is to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds, and such memorandum shall be written and signed by the Commissioner which his own hand and shall form part of the record, for ready reference, Section 25 of the Act, 1923 is being referred as under: “25. Method of recording evidence.-The Commissioner shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds, and such memorandum shall be written and signed by the Commissioner with his own hand and shall form part of the record: Provided that, if the Commissioner is prevented from making such memorandum, he shall record the reason of his inability to do so and shall cause such 6 LPA No. 330 of 2020 memorandum to be made in writing from his dictation and shall sign the same, and such memorandum shall form part of the record: Provided further that the evidence of any medical witness shall be taken down as nearly as may be word for word. [25-A. Time limit for disposal of cases relating to compensation-The Commissioner shall dispose of the matter relating to compensation under this Act within a period of three months from the date of reference and intimate the decision in respect thereof within the said period to the employee.] Therefore, it is evident by going together the provision of Section 23 and Section 25 of the Act, 1923 that the provision of the CPC is not applicable in strict sense in the proceeding arising out of the Act, 1923. This Court after having discussed the applicability of the Code of Civil Procedure as hereinabove and coming to the order passed by the Presiding Officer, Labour Court where from it is evident that ex-parte award has passed in W. C. Case No. 01 of 2015 and, thereafter, an application under Order IX Rule 13 of the CPC was filed for setting aside the ex-parte order which was held to be not maintainable. The aforesaid finding according to our considered view cannot be said to suffer from an error in view of the fact that when provision of Section 23 read with Section 25 the Commissioner within the meaning of the Act, 1923 is having no power to be exercised in term of the provision of the Code of Civil Procedure, as such, the application filed under Order IX Rule 13 of the CPC by which power has been conferred to the Civil Court for setting aside the ex-parte order is not be exercised by the Commissioner. The learned Presiding Officer since has come with the conclusion that the application under Order IX Rule 13 of the CPC is not maintainable the same cannot be said to suffer from an error, coupled with the fact that the provision of Rule 32 of the Workmen's Compensation Rules, 1924 has also not conferred power upon the Commissioner to make any addition or alteration once the judgment has been pronounced save and except the correction in the nature of clerical error or arithmetical mistake can only be allowed to be carried out if mistake arises from any accidental slip or omission, for ready reference the provision of Rule-32 is being referred herein: “32. Judgment (1) The Commissioner, in passing orders, shall not concisely a judgment, his finding on each of the 7 LPA No. 330 of 2020 issues framed and his reasons for such finding. (2) The Commissioner, at the time of signing and dating his judgment shall pronounce, his decision, and thereafter no addition or alteration shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission.” 10. Mr. A.K. Sahani, the learned counsel appearing for the appellant however has agreed with the legal position about non-applicability of the provision of Code of Civil Procedure in the matter of Workmen Compensation Act. However, he contended that the learned Single Judge ought to have dismissed the writ petition by approving the order passed by the learned Presiding Officer so far its maintainability is concerned but the learned Single Judge has also dealt with the issue on merit. According to the learned counsel, once the application filed under Order IX Rule 13 of the CPC has been held to be not maintainable it was not appropriate and just for the learned Single Judge to go into the merit of the issue. 11. This Court is an agreement with the aforesaid submission, since, the application has been said to be not maintainable and if it is being questioned before the higher forum, the higher forum is only to strict to the issue put forth before it, meaning thereby, the order of holding the application under Order IX Rule 13 of the CPC since has been held to be not maintainable the learned Single Judge ought to have only to look into its propriety. But, we have found from the impugned judgment as particularly from paragraph no.5 thereof that the fact has been discussed on merit by taking note of the conduct of the appellant about his non-appearance by making reference of the factual aspect, i.e., specific finding has been recorded in the impugned order by referring 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. 8 LPA No. 330 of 2020 For ready reference, the observation so made by the writ Court, in paragraph no.4, reads as under: “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. 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.” 12. This Court, after considering the aforesaid observation made under paragraph no.4 as quoted and referred hereinabove, is of the view that so far as the part of the order by which the application filed under Order IX Rule 13 of the CPC holding it not maintainable by the learned Single Judge suffers from no error. But so far as the observation made regarding the conduct of the appellant as per the paragraph no.5 of the order passed by the learned Single Judge, according to our considered view requires interference for the reason that once the application is being held to be not maintainable and even if the merit of the issue will be touched, then, the forum before which the litigation will be maintainable, there will be nothing to be decided on merit. Therefore, this Court is of the view that when the issue has not been entertained on the ground of maintainability by the learned writ Court where is the question to consider the merit of the issue. 13. Considering the aforesaid fact the part of the observation made as under paragraph no.5 to the extent as indicated hereinbelow: “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 9 LPA No. 330 of 2020 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 exparte 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.” The same is, hereby, quashed and set aside. In the result, the instant appeal stands allowed partly. The appellant is at liberty to search out remedy for redressal of 14. 15. 16. grievance. 17. Accordingly, instant appeal stands disposed of. (Sujit Narayan Prasad, J.) (Subhash Chand, J.) RKM N.A.F.R