Jammu & Kashmir High Court - Srinagar Bench
Masooda vs Union Territory Of Jk & Ors on 13 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. 24
Regular Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 40/2024
Masooda ...Petitioner(s)/Appellant(s)
Through: Ms Rasheeda Shaheen, Adv.
Vs.
Union Territory of JK & Ors. ...Respondent(s)
Through: Mr. N. A. Dandru, Adv.
Mr. Farhat Zia, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER
13.05.2025 [Oral]
1. This intra-court appeal by the appellant Masooda is directed against an order and judgment dated 29th December 2023 passed by learned Single Judge of this Court ["the Writ Court"] in WP (C) No. 1066/2020, whereby the Writ Court has allowed the writ petition filed by respondent No. 3 partly and directed the Assistant Labour Commissioner ["the Commissioner"] to consider the application of the respondent No. 3 for setting aside the ex-parte award afresh and decide the same on merits after hearing both the parties.
2. Briefly put the facts leading to the filing of this appeal are that the appellant Masooda filed an application before the Commissioner for payment of compensation on account of death of her son namely Mohammad Altaf Lala, an employee serving with respondent No. 3- Sahil Gupta, Proprietor M/s B.D. Security Pvt. Ltd. The application for compensation was premised on the assertion that deceased Mohammad Altaf Lala died of a bullet shot received by him from a fellow-guard while deceased was on active duty with the Bank. Be that as it may, the Commissioner passed an ex-parte award dated 11th Mohd Altaf Nima I attest to the accuracy and authenticity of this document LPA No. 40/2024 Page 1 of 4 14.05.2025 July 2018 and granted compensation to the appellant to the tune of Rs. 8,32,594/-.
3. Feeling aggrieved of the passing of the ex-parte award, respondent No. 3 moved an application for setting aside ex-parte award dated 11th July 2018 before the Commissioner. The application was delayed and, therefore, was accompanied by an application seeking condonation of delay. The Commissioner declined to entertain the application on the ground that under the Employees Compensation Act, 1923 ["the Act of 1923"] the Commissioner had no jurisdiction to set-aside an ex- parte award passed by it. The application was rejected by the Commissioner vide order dated 12th February 2020. It is this order dated 12th February 2020 along-with ex-parte award dated 11th July 2018 passed by the Commissioner which was called in question by the respondent No. 3 before the Writ Court. The Writ Court having considered the rival contentions and the material on record arrived at the following conclusions:-
(a) that the ex-parte award was not assailable before the High Court by way of writ petition in the face of availability of alternative and equally efficacious statutory remedy of appeal provided under Section 30 of the Employees Compensation Act, 1923 ["Act of 1923"]
(b) that the Commissioner under the Act of 1923 is competent and has jurisdiction to entertain an application for setting aside an ex-parte award.
4. On the basis of aforesaid conclusions arrived at by the Writ Court, the writ petition was disposed of by holding that the writ petition as against an ex-parte award was not maintainable. The Writ Court, however, accepted the writ petition of the respondent No. 3 insofar as the order dated 12th February 2020 passed by the Commissioner was concerned. The order dated 12th February 2020 was thus set-aside and the matter was remanded to the Commissioner for considering the application of respondent No. 3 seeking setting aside of ex-parte award along-with the application for condonation of delay in accordance with law and after hearing both the parties. Mohd Altaf Nima I attest to the accuracy and authenticity of this document LPA No. 40/2024 Page 2 of 4 14.05.2025
5. Having heard learned counsel for the parties and perused the material available on record, we are of the considered opinion that the judgment passed by the Writ Court is perfectly legal and does not call for any interference by us in this intra-court appeal. The appellant is aggrieved of the impugned judgment passed by the Writ Court only to the extent of setting aside of order dated 12 th February 2020 passed by the Commissioner, rejecting the application of respondent No. 3 for setting aside the ex-parte award/application for condonation of delay.
6. After hearing the rival contentions of the parties, it is seen that the only issue that needs determination by us in this appeal is "whether the Commissioner under the Act of 1923 is competent and has jurisdiction to entertain and set-aside an ex-parte award passed by it under the provisions of the Act of 1923". The reply to the question is not far to seek. Under Section 32 of the Act of 1923, the State Government is empowered to make rules to carry out the purposes of the Act. The Government in exercise of powers conferred under Section 32 has framed Workmen's Compensation Rules, 1924 ["the Rules of 1924"]. Rule 41 whereof reads thus:-
"41. Certain provisions of Code of Civil Procedure, 1908, to apply.-Save as otherwise expressly provided in the Act or these Rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30: Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto:
Provided that-
(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced."
7. From a plain reading of Rule 41, it clearly transpires that the Commissioner under the Act of 1923 has been empowered to exercise certain powers under the Code of Civil Procedure which inter alia Mohd Altaf Nima include the power to be exercised under Order 9. The application for I attest to the accuracy and authenticity of this document LPA No. 40/2024 Page 3 of 4 14.05.2025 setting aside ex-parte award is traceable to order 9 Rule 13 CPC which power is specifically conferred by Rule 41 on the Commissioner under the Act of 1923. That being the clear position emerging from reading of Rule 41, the Commissioner was not correct in holding that it lacked jurisdiction to entertain an application under Order 9 Rule 13. The Writ Court has rightly set-aside the order of the Commissioner to the aforesaid extent. The view taken by the Writ Court is correct and unexceptionable.
8. For the foregoing reasons, we are not inclined to interfere with the well-reasoned order passed by the Writ Court. The appeal is thus found to be devoid of merit and the same is dismissed accordingly. However, having regard to the fact that the appellant is litigating for compensation since the year 2016, it would be in the fitness of things to direct the Commissioner to dispose of the application filed by respondent No. 3 for condonation of delay/setting aside the ex-parte award within a period of two months from the date the parties appear before him. Let the appellant as well respondent No. 3 appear before the Commissioner on 4th June 2025. Needless to say that till the application is decided by the Commissioner, the recovery proceedings initiated in terms of notice dated 22nd June 2020 shall defer.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
13.05.2025
Altaf
Whether approved for reporting? Yes.
Mohd Altaf Nima
I attest to the accuracy
and authenticity of this
document LPA No. 40/2024 Page 4 of 4
14.05.2025