M/s Swastic Bricks Company v. Smt. Bala Devi

CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. J.P. Sharma, Advocate for the petitioner. Mr. N. R. Dahia, Advocate for the respondent. Rajesh Bindal J. .. The petitioner has approached this Court challenging the order dated

23.6.2008, passed by the Commissioner under the Workmen's Compensation Act, 1923 (for short, `the Act'), Rewari, whereby its application for setting aside ex -parte award dated 29.3.2007 was dismissed. Briefly, the facts are that the respondent filed application under Section 22 of the Act before the Workmen Compensation Commissioner at Narnaul for grant of compensation on account of death of her son-Ved Pal alias Tej Pal, in which initially the proceedings continued at Narnaul. However, later on, the same were transferred to Rewari from where the petitioner was issued notice for appearance. On account of non-appearance of the petitioner or his counsel, the petitioner was directed to be proceeded against ex parte on 6.3.2007 and thereafter, ex-parte award was passed on 29.3.2007 for a sum of Rs. 4,63,075/-. After the petitioner came to know about the ex-parte award, application for setting aside thereof was filed, which was dismissed vide impugned order dated 23.6.2008.

Learned counsel for the petitioner submitted that initially when the proceedings were continuing before the Workmen Compensation Commissioner at Narnaul, the petitioner was represented by his counsel. The pleadings were completed and even some evidence was also led upto 17.10.2006. Thereafter, the case was transferred to Workmen Compensation Commissioner at Rewari. It is found from the record that on 5.2.2007, summons by registered post were issued to the petitioner for appearance on 22.2.2007. On that date, the proceedings were CR No. 5178 of 2008 [2] adjourned to 6.3.2007 to await service and on account of non-appearance of the petitioner, he was directed to be proceeded against ex-parte. On 21.3.2007, arguments were heard and thereafter ex-parte award was passed on 29.3.2007. The petitioner came to know about the same only when on 29.10.2007, he received letter dated 18.10.2007 for recovery of the amount in terms of the ex-parte award.

Immediately thereafter, the facts were enquired into and application for setting aside ex-parte award was filed. There was no delay as such. While the case was pending before the Workmen Compensation Commissioner at Narnaul, the petitioner was appearing. There was no question of non-appearance before the transferee authority. In fact, the petitioner never received any notice. The brick kiln of the petitioner is located in a remote village in Tehsil Behror, District Alwar (Rajasthan). The acknowledgment for delivery of notice to the petitioner was never received back in the office of the Commissioner. The prayer is that the petitioner be granted one opportunity to lead his evidence instead of condemning him ex- parte. On the other hand, learned counsel for the respondent submitted that it is a case of total casual attitude of the petitioner. The petitioner was in knowledge of the proceedings pending against him, but still he did not take care of the same.

When the petitioner was knowing of the factum of transfer of proceedings to Rewari, he should have appeared before the Workmen Compensation Commissioner at Rewari and joined the proceedings there. There is a presumption of delivery of letter sent by registered post in case the same is not received back within 30 days and in the present case, only after 30 days of the despatch of the registered notice, the petitioner was directed to be proceeded against ex-parte. No fault as such can be found with the impugned order. Heard learned counsel for the parties and perused the paper book. From the conduct of the proceedings in the present case, it cannot be inferred that the petitioner was not interested in defending the claim petition filed against him, which was filed way back on 5.11.2005 with the allegation that son of the respondent expired while working on a chimni at the brick kiln when the ladder collapsed.

For about a year, when the proceedings continued, initially before the Workmen Compensation Commissioner at Narnaul, the pleadings were completed and even some of the evidence was also recorded. The petitioner remained represented there. Thereafter, the case was transferred to the Workmen Compensation Commissioner at Rewari, from where the summons were issued to the petitioner on 5.2.2007 for 22.2.2007. However, on that date, the matter was adjourned to 6.3.2007 to await service. On account of non-appearance and raising CR No. 5178 of 2008 [3] the presumption that 30 days had elapsed since the notice was sent, the petitioner was directed to be proceeded against ex-parte. Immediately thereafter, the impugned award was passed on 29.3.2007. It is also a fact that the brick kiln of the petitioner is located in a village, which would certainly be a small one, considering the fact that it did not have a Post Office.