Madras High Court
Thangavel vs Saminathan, Vadakarar @ Perasamy, ... on 19 September, 2003
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioner has approached this Court questioning the ex parte order dated 4.5.2001 made in W.C. No. 58 of 1997 and the consequential order dated 6.9.2001 passed by the fourth respondent in refusing to set aside the ex parte order.
2. The first respondent approached the fourth respondent, the Commissioner of Workmen's Compensation, Salem claiming compensation of a sum of Rs. 2,00,000/- for the injuries sustained by him and the consequential removal of his right hand while he was in service with the petitioner. In the said petition, though notice was issued to the petitioner and the third respondent, they did not file any counter. The fourth respondent on considering the fact that the notice was served and the petitioner and third respondent remained absent, passed an ex parte order for payment of Rs. 1,20,263/- to be paid by the petitioner and the third respondent. As against the said ex parte order, a petition was filed to set aside the said order which was dismissed on the ground that on an earlier occasion also, though the petition to set aside the ex parte order was allowed, again there was no representation for the petitioner and the ex parte order was passed. The commissioner also noted that the case was pending for four years.
3. At the time of hearing the writ petition, a preliminary objection was raised by Mr. N. Manoharan, learned counsel appearing for the first respondent by contending that as against the impugned order, the petitioner has got an effective remedy of civil miscellaneous appeal under Section 30 of the Workmen's Compensation Act. Without resorting to such remedy the petitioner has filed the writ petition. Hence, the writ petition is liable to be dismissed on the ground of alternative remedy.
4. I have heard the learned counsel for the petitioner also.
5. In view of the submissions and the facts of the case, it is now to be considered as to whether the writ petition is liable to be rejected on the ground of alternative remedy.
6. Section 30 of the Workmen's Compensation Act, 1923 relating to appeal reads as under:-
"(1) An appeal shall lie to the High court from the following orders of a Commissioner, namely:-
(a) an order as awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum.
(b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the dependents of a deceased workman, or disallowing any claim of a person alleging himself to be such dependent;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions.
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees;
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties;
Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against."
In the light of the above provision, it is to be now considered as to whether the appeal as contemplated under Section 30 of the Act is also available against an ex parte order.
7. The following series of judgments were cited before me by the learned counsel for the first respondent to contend that in the event an adverse order is passed, the proper remedy for the person aggrieved is only to file an appeal under Section 30 of the Act.
(1) "P.L. VELLAICHAMY v. THE UNION OF INDIA REP. BY ITS SECRETARY, MINISTRY OF LABOUR AND REHABILITATION, NEW DELHI AND ANOTHER (1989 TLNJ 457)". (2) "KRISHNA LIME WORKS v. PRESIDING OFFICER/WORKMEN'S COMPENSATION COMMISSIONER AND OTHERS (1990 (1) LLJ 302) ". (3) "P. MARIAPPAN v. THE DEPUTY COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAYAMKOTTAI AND ANOTHER (2002 (1) CTC 675) ". (4) "SADHANA LODH v. NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER (2003 (1) MLJ 181 (SC) ".
8. In Sadhana Lodh's case reported in 2003 (1) MLJ 181 supra, the Apex Court while considering a petition filed under Article 226/227 of the Constitution of India questioning the award of the Motor Accidents Claims Tribunal held that the award could be challenged by way of appeal under Section 173 of the Motor Vehicles Act. In that case the writ petition was filed questioning the award passed on merits after rival contentions were considered. In Mariappan's case reported in 2002 (1) CTC 675 supra, a learned single Judge of this Court considered the writ petition questioning the order passed by the Commissioner for Workmen's compensation. In that case also, the order of the commissioner was passed on merits. In order to question such orders, the proper course would be for the aggrieved person to prefer appeal under Section 30 of the Act by depositing the entire amount awarded. In that context, this Court has ruled that the proper remedy would be by filing appeal, as the writ petition was filed in order to avoid compulsory deposit and also to avoid limitation.
9. In Krishna Lime Works case reported in 1990 (1) LLJ 302 supra, a Division Bench of the Rajasthan High Court (Jaipur Bench) has also held that the remedy to challenge the order of the Workmen's Compensation Commissioner is to file an appeal as the same is adequate and efficacious remedy and the writ petition is no substitute. That was also a case of a writ petition filed questioning the order of the Workmen's Compensation Commissioner passed on merits. Similarly, this Court in Vellaichamy's case reported in 1989 TLNJ 457 supra has taken the same view as in that case also, the writ petition was filed questioning the order of the Workmen's Compensation Commissioner passed on merits.
10. Coming to the facts of this case, the order of the fourth respondent-Commissioner is ex parte. Documents filed on behalf of the workman were considered and accepted in the absence of any contra evidence/documents adduced on behalf of the petitioner, as the writ petitioner remained ex parte. The order is though ex parte, is not on merits. In the circumstances, it is to be now considered as to whether the judgments relied upon by the learned counsel for first respondent would be applicable to the facts of this case more particularly, as to whether the appeal is an alternative and efficacious remedy against an ex parte order.
11. To set aside the ex parte order, an application is filed under Order 9 Rule 13 of the Civil Procedure Code which has been made applicable to the proceedings before the Commissioner for Workmen's Compensation in terms of Rule 41 of Workmen's Compensation Rules, 1924. It is also to be noted that Section 23 of the Workmen's Compensation Act also enables the Commissioner to have all the powers of a Civil Court under the Code of Civil Procedure for certain purposes and the Commissioner shall be deemed to be the Civil Court for all purposes under Section 195 of the Code of Criminal Procedure. It must be now considered as to whether an ex parte order falls under any of the categories specified under the clauses in sub-section (1) of Section 30 of the Workmen's Compensation Act. A plain reading of Section 30 of the Act does not cover a case of an ex parte order for the persons aggrieved to file an appeal, as the ex parte order is not one of the enumerated categories under the said Section. In fact, a similar question came up for consideration before this Court in the case of "M.K. GOVIND SINGH v. THE ADDL. COMMISSIONER FOR WORKMEN'S COMPENSATION, MADRAS AND ANOTHER (1972 (1) LLJ 430)", and this Court has also held that Section 30 does not provide for an appeal against the order passed by a Commissioner while dealing with an application under Order 9 Rule 13 of the Civil Procedure Code for setting aside the ex parte order. Hence, for all these reasons, the argument of the learned counsel for first respondent that as against the impugned order, the petitioner ought to have filed civil miscellaneous appeal under Section 30 of the Act cannot be accepted. Accordingly, it is held that as against the order rejecting the application under Order 9 Rule 13 of the Civil Procedure Code refusing to set aside an ex parte order, appeal under Section 30 is not an alternative remedy and consequently the writ petition under Article 226 of the Constitution of India filed questioning the correctness of the said order is maintainable.
12. In view of the above finding, it has to be now considered as to whether the petitioner has given sufficient reason for setting aside the ex parte order. In the petition to set aside the ex parte order, it is stated that on the date when the petition was taken up for hearing, the Advocate could not attend the hearing as he had gone to attend a funeral. Such reason, in my considered view, is acceptable and the same cannot be rejected on the ground that on an earlier occasion the petition to set aside the ex parte order was allowed and the petitioner was given opportunity to contest the case on merits. However, the fourth respondent has not properly appreciated the reason given by the petitioner that he had failed to attend the hearing since the Advocate had gone to attend a funeral. While considering a petition for setting aside the ex parte order more particularly, in the case like this, the fourth respondent-Commissioner should have accepted the reasons adduced by the petitioner and ought to have allowed the petition.
13. In view of the above, the ex parte order dated 4.5.2001 and the consequential order dated 6.9.2001 in refusing to set aside the ex parte order passed by the fourth respondent in W.C. No. 58 of 1997 are set aside and the matter is remanded back to the fourth respondent-Commissioner of Workmen's Compensation (Deputy Commissioner of Labour), Salem for fresh disposal on merits after giving due opportunity to both the petitioner and the respondents 1 to 3. The writ petition is allowed. No costs. Consequently, W.P.M.P. No. 3657 of 2002 is closed.