Mir Manzoor Gazanfar v. State of J&K

Commissioner) Srinagar (for short “Labour Commissioner”), and direct it to hear petitioner de novo after setting aside ex parte motions.

2. According to petitioner, impugned order is contemptuous and collaterally largely prejudicial to the Order passed in OWP no.1715/2014 because Labour Court slated the matter for final arguments while plunging petitioner into ex parte again and passed ex parte award at the back of petitioner. It is also contention of petitioner that Labour Commissioner deliberately caused confusion in the OWP no.1140/2016 proceedings which was motivated to usurp petitioner’s right to defend the matter as the asymmetrical directions intermittently issued by Labour Commissioner are not in sync with the procedure as the principles of natural justice demand inasmuch as ex parte award sought to be executed is without hearing him.

3. I have heard learned counsel for parties and considered the matter.

4. Respondent no.2 herein approached the Labour Commissioner with a claim petition, averring therein that his son, namely, Farooq Ahmad Bhat, aged about 29 years, was working in the hotel of petitioner, viz. Hotel Silver Star situated at Lasjan Bypass, Srinagar, as Bellcapten from 2007 and that on 19th October 2012, unknown militants fired on an Army Convoy near the hotel and during encounter his son who was on his routine duty was hit by bullet in the hotel premises while doing his routine work. Respondent no.2 sought compensation. His son was getting Rs.10,000/- monthly salary/income and was sole breadwinner of his family. Labour Court framed following issues: (a) Whether the death of the deceased has occurred during and in the course of employment with the non-applicant? (b) If so, whether the applicants are entitled to compensation under the provisions of Workmen’s Compensation Act, 1923? (c) If so, to what extent.

5. Respondent no.2/claimant produced and examined four witnesses, which includes himself, before Labour Commissioner. The evidence of respondent no.2 was closed on 30th October 2013 and other-side was directed to produce evidence but they did not do so and, as such, right to produce evidence was closed by Labour Commissioner. In OWP no.1140/2016 terms of judgement dated 26th April 2014, petitioner herein was directed to pay compensation amount of Rs.7,09,826/-.

6. As record would tend to show that an application was filed by petitioner herein before the Labour Commissioner under Order IX Rule 13 of the Code of Civil Procedure for setting-aside the judgement/Award dated 26th April 2014, which was, however, rejected vide order dated 30th August 2014. Against said order a petition, being OWP no.1715/2014, titled as Mir Manzoor Gazanfar v. State and another, was filed by petitioner herein. A Bench of this Court vide order dated 16th December 2014 set-aside the Labour Commissioner’s Order dated 30th August 2014, directing Labour Commissioner to pass fresh orders on petitioner’s application for setting-aside ex parte award after hearing both the parties. It was observed that petitioner herein had appeared before the Labour Commissioner and cross-examined some witnesses but later on remained absent and did not lead any evidence and as a result whereof case was decided in his absence. It was also said that application filed under Order IX Rule 13 CPC, which is applicable in view of Rule 42 of Workmen’s Compensation Rules, 1924, has to be decided on merits. While setting-aside the order dated 30th August 2014, this Court directed Labour Commissioner to pass fresh orders on the application of petitioner herein after hearing both the parties. The parties were directed by this Court to appear before the Labour Commissioner on 31st December 2014. OWP no.1140/2016

7. Perusal of the record on the file would reveal that on 17th January 2015, appellant herein was asked by the Labour Commissioner to lead evidence on 14th February 2015, but petitioner failed to lead evidence. Thereafter last and final opportunity was given to appellant to lead evidence to prove his stand but he did lead evidence. The Labour Commissioner, therefore, vide order dated 28th February 2015 set ex parte petitioner and directed respondent no.2 to file arguments. However, on 14th March 2015, respondent again appeared before the Labour Commissioner with a prayer to set-aside ex parte order dated 28th February 2015. Petitioner was given opportunity to lead evidence. Respondent sought and prayed to cross-examine the witnesses produced by respondent no.2. The Labour Commissioner directed respondent no.2 to produce witness to be cross-examined by petitioner herein. On 23rd March 2015, respondent no.2 produced one witness, who was cross-examined and his statement was recorded. On 9th May 2015 two witnesses were present to be cross-examined but petitioner herein was not present, so the chance to cross-examine witnesses was closed by the Labour Commissioner and the matter was posted for final orders. It was keeping in view the approach of petitioner herein that the Tribunal was left with no option except passing order dated 8th August 2015, directing petitioner herein to deposit compensation amount.

8. The witnesses produced before Labour Commissioner has corroborated the case of respondent no.2 that his son was working in the Hotel of petitioner when he died while discharging his duties in OWP no.1140/2016 the Hotel, so petitioner cannot wriggle out of his responsibility to pay compensation to respondent no.2.

9. The net result is that petition in hand is without any merit and is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

10. Copy of this order be sent to Commissioner Workmen’s Compensation Act (Assistant Labour Commissioner) Srinagar. Srinagar 04.07.2024 Ajaz Ahmad, Secy. Whether approved for reporting? Yes/No. (Vinod Chatterji Koul) Judge OWP no.1140/2016