Karnataka High Court
Parveen Industries vs Banawar Singh on 13 December, 1989
Equivalent citations: II(1990)ACC108, 1990ACJ980, [1990(60)FLR745], ILR1990KAR605, 1990(3)KARLJ197, (1990)IILLJ412KANT
ORDER Rama Jois, J.
1. This Appeal has come up for orders on the office objection regarding the maintainability of this appeal. The brief facts of the case which are relevant to decide the office objection are as follows :-
The respondent workman filed an application before the Workmen's Compensation Authority claiming compensation in respect of employment injury. The said application was allowed by the order of the authority dated 25th August 1987. On 18th September 1987 the Appellants filed an application under Rule 41 (wrongly referred to as Rule 42) of the Workmen's Compensation Rules praying for setting aside the order dated 25th August 1987 on the ground that no notice had been served on the Appellants and therefore the order passed ex parte against them should be set aside. This application was rejected by the order dated 4th August 1989 made by the authority upholding the objection of the workman that notice had been served on the Appellants and there was no justification for the Appellants not to have appeared before the authority. It is against the said order the Appellants have preferred this appeal under Order 43 Rule 1 of the Code of Civil Procedure. The office has raised an objection regarding the maintainability of the appeal.
2. Learned Counsel for the Appellants submits that the appeal is maintainable in view of Rule 41 of the Workmen's Compensation Rules, 1924. The said Rule reads :-
"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 :- xx"
Learned Counsel pointed out that Order IX Rules 9 to 13 of C.P.C. had been made applicable and therefore the application for setting aside the ex parte decree was maintainable and consequently the appeal under Order 43 Rule 1 C.P.C. is also maintainable against an order dismissing the application.
3. As could be seen from Rule 41, only certain specified provisions of the Code of Civil Procedure are made applicable to the proceedings under the Workmen's Compensation Act. Order IX of C.P.C. is one of them. Therefore, certainly an application for setting aside an ex parte order could be filed under Order IX C.P.C. before the Workmen's Compensation Authority. But, the question which arises for consideration is, whether an appeal lies to this Court under the provisions of Code of Civil Procedure against an order made by the Workmen's Compensation Authority dismissing or allowing an application under any of the provisions under Order IX C.P.C. ?
4. An appeal under Order 43 Rule 1 C.P.C. lies against an order made under Rule 13 of Order IX in view of clause (d) of Order 43 Rule 1 C.P.C. But the said provision is not made applicable to the proceeding under the Workmen's Compensation Act under Rule 41 of the Workmen's Compensation Rule` Therefore, the appeal under Order 43 Rules 1 C.P.C. is not maintainable.
5. The only provision regarding appeal against the orders made by the Workmen's Compensation Authority is found in Section 30 of the Workmen's Compensation Act. Under clause (a) of Section 30(1) an appeal lies to this Court from the orders of the Commissioner awarding compensation. Therefore, it is clear that if an order awarding compensation has been made by the Workmen's Compensation Authority and thereafter an application was made under Order IX Rule 13 praying for setting aside that order on the ground that the appellant had been placed ex parte without justification and that application is dismissed, the only course open to the party is to prefer an appeal against the order awarding compensation as provided in Section 30(1)(a) of the Act. But no appeal can be filed against an order dismissing the application for setting aside the order as there is no provision for filing such an appeal under Section 30 of the Act and under the Rule 41, the provisions of Order 43 Rule 1 C.P.C. are not made applicable.
6. If, for any reason, as actually happened in this case, by the time the application for setting aside the ex parte decree is dismissed, the time for filing appeal against the original order is over, the only course open for the party is to file an application under Section 5 of the Limitation Act praying for condonation of delay, as the said provision is expressly made applicable under Section 30(3) of the Workmen's Compensation Act.
7. For the aforesaid reasons, we hold that the appeal is not maintainable and it is dismissed leaving liberty for the Appellants to file an appeal under Section 30(1)(a) of the Workmen's Compensation Act.