Allahabad High Court
Laxmi Narain Gupta S/O Sri Badri Prasad ... vs Workmen'S Compensation Commissioner ... on 5 April, 2007
JUDGMENT S.P. Mehrotra, J.
1. The present Writ Petition, under Article 226 of the Constitution of India, has been filed by the petitioner, inter-alia, praying for quashing the order dated 6th March, 2000 (Annexure 9 to the Writ Petition) passed by the Workmen's Compensation Commissioner-cum-Assistant Labour Commissioner, U.P., Fatehpur (Respondent No. 1).
2. It appears that the respondent No. 2 filed an Application making claim for compensation under the Workmen's Compensation Act, 1923 against the petitioner Laxmi Narain Gupta and Laxmi Dal Mills.
3. The said Application was registered as Case No. (WC) 2 of 1998 under the Workmen's Compensation Act, 1923.
4. Copy of the said Application has been filed as Annexure 5 to the Writ Petition.
5. It further appears that by an ex-parte order dated 9-8-1999, the respondent No. 1 awarded compensation amounting to Rs. 1,37,942-00 to the respondent No. 2 with interest as mentioned in the said ex-paite order dated 9-8-1999.
6. Copy of the said ex-parte order dated 9-8-1999 has been filed as Annexure 6 to the Writ Petition.
7. It further appears that a Restoration Application was, thereafter, filed on behalf of the petitioner, inter-alia, praying for recall of the said ex-parte order dated 9-8-1999.
8. An Affidavit, sworn on 1st January, 2000, was also filed in support of the said Restoration Application.
Copy of the said Affidavit has been filed as Annexure 7 to the Writ Petition.
9. It further appears that objections were filed on behalf of the respondent No. 2 against the said Restoration Application filed on behalf of the petitioner.
10. Copy of the said objections has been filed as Annexure 8 to the Writ Petition.
11. It further appears that by the order dated 6lh August, 2000, the respondent No. 1 set aside the ex-parte order dated 9th August, 1999 subject to the condition that within 15 days from the date of the said order dated 6th August, 2000, the petitioner would deposit 50 % of the compensation awarded (Rs. 1,37,942.10), i.e., an amount of Rs. 68,971/- in the Court of the respondent No. 1.
12. Copy of the said order dated 6th August, 2000, as mentioned above, has been filed as Annexure 9 to the Writ Petition.
13. Thereupon, the petitioner has filed the present Writ Petition.
14. By the order dated 24th May, 2000, notice was directed to be issued on the Writ Petition, and an interim order subject to condition was passed.
15. The said order dated 24th May, 2000 is reproduced below:
Notice on behalf of respondent No. 1 has been accepted by the learned Standing Counsel.
Issue notice to respondent No. 2 returnable at an early date.
In the meanwhile, subject to the condition, petitioner furnishes bank guarantee for the amount in question, i.e., Rs. 68,971/- within two weeks from today, the operation of impugned order insofar it imposes condition of payment of the said amount in question shall remain stayed.
16. It further appears that Civil Misc. Stay Vacation Application No. 94252 of 2002 along with Counter Affidavit, sworn on 15th May, 2002, was filed on behalf of the respondent No. 2.
17. The petitioner has filed Rejoinder Affidavit, sworn on 2nd January, 2006, in reply to the aforesaid Counter Affidavit.
18. It further appears that a Second Stay Vacation Application, namely, Civil Misc. Stay Vacation Application No. 35427 of 2007 was filed on behalf of the respondent No. 2 along with Counter Affidavit, sworn on 4th February, 2007.
19. In reply to the Counter Affidavit, sworn on 4th February, 2007, the petitioner has filed today a Rejoinder Affidavit, sworn on 5th April, 2007.
20. I have heard Sri C.B. Singh, learned Counsel for the petitioner and S/Sri H.M. Srivastava and R.S. Satyarthi, learned Counsel for the respondent No. 2, and perused the record.
21. It is submitted by Sri C.B. Singh that in view of Rule 41 of the Workmen's Compensation Rules, 1924 framed under the Workmen's Compensation Act, 1923, the provisions of Order IX of the Code of Civil Procedure, including Rule 13 thereof, are applicable to the proceedings before the Commissioners under the Workmen's Compensation Act, 1923.
22. It is further submitted that the respondent No. 1 having been satisfied with the sufficiency of cause for non-appearance of the petitioner, ought to have restored the case subject to only nominal condition. The condition imposed in the impugned order dated 6th March, 2000 is onerous and unreasonable.
23. In this regard, Sri C.B. Singh, learned Counsel for the petitioner has referred to an order dated 22nd November, 1999 (Annexure 10 to the Writ Petition) passed by the respondent No. 1 on Restoration Application filed in some other case, namely, Case No. (WC) 5 of 1997.
24. It is submitted that the respondent No. 1 ought to have maintained parity in deciding the restoration matter.
25. In reply, the learned Counsel for the respondent No. 2 submits that the Restoration Application has been allowed by the respondent No. 1 imposing reasonable condition, and no interference is called for with the impugned order dated 6th March, 2000.
26. It is further submitted that Restoration matter in different cases is decided on the peculiar facts and circumstances of the particular cases, and there is no question drawing parity in such a matter.
27. I have considered the submissions made by the learned Counsel for the parties.
28. Rule 41 of the Workmen's Compensation Rules, 1924 framed under the Workmen's Compensation Act, 1923, inter-alia, makes the provisions of Order IX of the Code of Civil Procedure, including Rule 13 thereof, applicable to the proceedings before the Commissioner under the Workmen's Compensation Act, 1923.
29. Rule 13 of Order IX of the Code of Civil Procedure provides as follows:
13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
Explanation. -Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.
30. It will thus be seen that Rule 13 of Order IX of the Code of Civil Procedure gives wide discretion to the Court in imposing conditions while setting aside an ex-parte decree.
31. This is evident from the words "the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit," occurring in Rule 13 of Order IX.
32. Therefore, while passing an order setting aside an ex-parte decree, the Court may impose conditions, such as, regarding payment of costs, or regarding payment of decretal amount (whole or in part), etc. The conditions should be reasonable, and should not be unreasonable or onerous or harsh or illegal.
33. Reference in this regard may be made to the following decisions:
A) - Nanak Chand v. Goswami Preetam Lal (para 2).
B) - N. Karuppan v. M. Sankaran Nair (paras 11 & 12).
C)-B. Padmavathi Rai v. Parvathiamma AIR 1976 Kamataka 97 (paras 4 & 5).
34. In view of the provisions of Rule 13 of Order IX of the Code of Civil Procedure, which are applicable to the proceedings before the Commissioner under the Workmen's Compensation Act, 1923, it was open to the respondent No. 1 to impose conditions while setting aside the ex-parte order dated 9th August, 1999.
35. The respondent No. 1 in the impugned order dated 6th March, 2000 has, accordingly, imposed condition regarding deposit of 50% of the compensation awarded while setting aside the ex-parte order dated 9th August, 1999.
36. I am unable to agree with the learned Counsel for the petitioner that the said condition imposed by the respondent No. 1 was unreasonable or onerous.
37. In my opinion, no illegality has been committed by the respondent No. 1 in imposing the said condition regarding deposit of 50 % of the compensation awarded, nor can the said condition be said to be unreasonable or onerous or harsh or illegal.
38. As regards the order dated 22nd November, 1999, passed by the respondent No. 1 in another case, namely, Case No. (WC) 5 of 1997 in respect of Restoration Application, I have passed the said order, filed as Annexure 10 to the Writ Petition. In my opinion, Restoration Application filed in any case, is decided on the peculiar facts and circumstances of the particular case. In case, the Court is satisfied with the sufficiency of cause on the peculiar facts and circumstances of the particular case, the Court passes suitable orders for restoration. Therefore, no parity can be drawn in such a matter on the basis of the order passed in a different case on the peculiar facts and circumstance of that case. Hence, the submission made by Sri C.B. Singh, learned Counsel for the petitioner on the basis of the order dated 22nd November, 1999 (Annexure 10 to the Writ Petition), cannot be accepted.
39. As noted above, an interim order dated May 24, 2000 was passed in the present case, inter-alia, staying the operation of the impugned order dated 6th March, 2000 subject to the petitioner furnishing bank guarantee for the amount in question, i.e. Rs. 68,971/- within two weeks from the date of the said order, namely, May 24, 2000.
40. A perusal of the averments made in paragraph 3(m) of the Counter Affidavit, sworn on 15th May, 2002, filed on behalf of the respondent No. 2, shows that the said condition regarding furnishing bank guarantee for the amount of Rs. 68,971/-, as mentioned in the said interim order dated May 24, 2000, was complied with by the petitioner. However, it is alleged in the said paragraph 3 (m) of the said Counter Affidavit that the furnishing of bank guarantee was not done within two weeks, as per the directions given in the said interim order dated May 24, 2000.
41. A perusal of paragraph 11 of the Rejoinder Affidavit, sworn on 2nd January, 2006, filed on behalf of the petitioner in reply to the aforesaid Counter Affidavit, sworn on 15th May, 2002, shows that the averments made in paragraph 3(m) of the said Counter Affidavit have not been specifically denied.
42. It is thus evident that the bank guarantee for Rs. 68,971/- was furnished by the petitioner, as per the requirements of the said interim order dated May 24, 2000, though there might have been some delay in furnishing the same as alleged in paragraph 3 (m) of the aforesaid Counter Affidavit.
43. As the said bank guarantee has already been furnished by the petitioner, I am of the opinion that the interest of justice would be subserved if instead of requiring the petitioner to make deposit of Rs. 68,971/-, as directed by the impugned order dated 6-3-2000, the said bank guarantee for the amount of Rs. 68,971/- be directed to continue to remain in operation till the disposal of Case No. (WC) 2 of W98 by the respondent No. 1, pursuant to the impugned order dated 6-3-2000, and further, a time limit be fixed for disposal of the said Case No. (WC) 2 of 1998.
44. It is, accordingly, directed that the bank guarantee furnished by the petitioner, pursuant to the said interim order dated May 24, 2000 passed by this Court will continue to remain in operation till the disposal of the said Case No. (WC) 2 of 1998, pursuant to its being restored by the impugned order dated 6-3-2000, and the petitioner will complete the necessary formalities, if any, in this regard. In view of the said direction, the petitioner will not be required to deposit Rs. 68,971/-, as directed by the impugned order dated 6-3-2000. The impugned order dated 6-3-2000 stands modified to the said extent.
45. It is further directed that the respondent No. 1 will proceed to decide the said Case No. (WC) 2 of 1998, pursuant to its being restored by the impugned order dated 6-3-2000, expeditiously, and in any case, within three months from the date of appearance of the parties before the respondent No. 1, as fixed here-in-after in the present order.
46. Learned Counsel for the parties are agreed that their respective parties, namely, the petitioner and the respondent No. 2 will appear before the respondent No. 1 on 24th April, 2007. The petitioner and the respondent No. 2 are accordingly directed to appear before the respondent No. 1 on 24th April 2007.
47. The Writ Petition is disposed of subject to the above directions.
48. Certified copy of this order will be supplied to the learned Counsel for the parties on payment of usual charges within ten days.