Gujarat High Court
Maheshbhai vs Suleman on 11 July, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
Print
SCA/2251/2011 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2251 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MAHESHBHAI
HARKISHANBHAI BELANI - Petitioner(s)
Versus
SULEMAN
ISHAK DHUDHA - Respondent(s)
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Appearance
:
MRPRATIKYJASANI
for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 28/02/2011
ORAL
JUDGMENT
1. By present petition, the petitioner has challenged the order dated 15.12.2010 passed by the Commissioner of Workmen's Compensation Act, 1923, Rajkot (hereinafter referred to as "Act") whereby the learned Commissioner has allowed the Misc. Application preferred by present respondent seeking condonation of delay in filing the Claim Petition No.46/2004 seeking payment of workmen's compensation which was not paid and has not been paid by present petitioner (to the respondent), in accordance with the provision of the Act.
2. Heard Mr.Jasani, learned advocate for the petitioner and perused the record.
3. It appears from the record of present petition that the respondent herein was a workman, within the meaning of the said term under the provisions of the Act, in the employment with the petitioner. It also appears that on 11th October, 1996, the respondent met with an accident during the course of employment. Though, in view of the provisions under Sections 3 and 4 of the Act, the petitioner-employer was statutorily obliged to pay compensation to the respondent-workman, in accordance with provision of the Act, the compensation was, undisputedly, not paid.
3.1 It appears that for some-time, the respondent did not take recourse under the provision of the Act and did not approach the learned Commissioner with appropriate application seeking compensation and the application was not made within the period of limitation prescribed under the Act.
3.2 One of the reasons urged by the respondent in support of the request to condone the delay was that the petitioner-employer had assured that he would be give suitable light work and would be regularly paid monthly wages shortly paid the compensation amount. Then in 2004, the respondent herein filed the claim application under the provision of the Act.
3.3 The said application/claim petition filed by the respondent came to be registered as Workmen Compensation (Non Fatal) Application No. 46 of 2004. Since the presentation of the said claim petition was delayed i.e. the filing of the application was done after expiry of limitation prescribed under the Act, the respondent filed application seeking condonation of delay.
3.4 The said Misc. Application seeking condonation of delay was filed in light of the provisions contained under Section 10 of the Act, particularly the proviso of the said Section 10 which confers power to the learned Commissioner to condone delay and entertain the claim petition even if filed after prescribed period of limitation, if he is satisfied that the failure to prefer claim was due to sufficient cause. The said Section 10 reads thus:-
"10. Notice and claim.- (1) 1[No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within 2[two years] of the occurrence of the accident or, in case of death, within 2[two years] from the date of death:] Provided that, where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease:
Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work, the period of two years shall be counted from the day the workman gives notice of the disablement to his employer:
[Provided further that if a workman who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected:] [Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the 5*[entertainment of a claim]--
(a) if the claim is [preferred] in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of th premises or place were the accident, or
(b) if the employer [or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed] had knowledge of the accident from any other source at or about the time when it occurred:
Provided further, that the Commissioner may 2*[entertain] and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been 3*[preferred], in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or [prefer] the claim, as the case may be, was due to sufficient cause.
(2) ..........
[(3) .........
(4) .........."
3.5 The petitioner-employer who had not paid the compensation upon the occurrence of the accident, more particularly, within the period prescribed by the Act, came forward raising objection against maintainability of the application on the ground of limitation.
3.6 Differently put, the party, who conveniently neglected the period of limitation in making payment of compensation, raised the objections on the ground of limitation against the maintainability of the application.
3.7. The learned Commissioner considered the submission of the contesting parties and after considering the submission of the claimant-workman and the opponent-employer and upon such consideration, found it appropriate and just to allow the application seeking condonation of delay.
3.8 Accordingly, the learned Commissioner passed the aforesaid order dated 15.12.2010 and condoned the delay.
3.9 The application seeking compensation is, accordingly, now-rather still- pending before the learned Commissioner and it would be or rather it could be tried on merits if the delay stands condoned otherwise the claim for compensation would be frustrated.
4. It appears that the petitioner-employer does not want or intend to undergo the trial and would rather prefer that the respondent's claim for compensation may be ousted on ground of delay. The petitioner feels aggrieved by the order dated 15.12.2010 condoning delay and filing the application. The petitioner has, therefore, preferred present petition. This Court has considered present petition on its own merits, without confronting the petitioner about maintainability of the petition in view of the provision under Section 30 of the Act, which provides for statutory remedy of appeal against the order passed by the learned Commissioner.
4.1 The provision under Section 30 of the Act provides for Appeal, however, on the ground that the appeal against order condoning delay, may not lie and may not be entertained, the petitioner-employer has preferred present petition.
4.2 When the legislature has, while making provision of appeal consciously not provided for remedy of appeal in the matter of orders condoning delay or orders of like nature, then, ordinarily the writ petition would not be entertained against such orders. However, as aforesaid, without confronting the petitioner-employer with the aforesaid position, in present petition, the objections of the petitioner are examined on merits.
5. As noted hereinabove earlier, the respondent met with an accident, allegedly during the course of employment with the petitioner on 11th October, 1996.
5.1 In present case, the respondent workman has, inter-alia, contended that he has suffered permanent injuries due to accident.
5.2.
The provision under Section 10 prescribes two years period as limitation period before expiry of which the claim petition should be filed before the learned Commissioner, if amount towards compensation is not paid or is short paid by the employer within time prescribed by the Act. In present case the claim petition came to be filed in 2004 i.e. six years after the expiry of period of limitation (however the petitioner insists to assert that the application was delayed by 8 years, by counting period from the date of accident, instead of counting it from the expiry of the limitation period).
5.3 It is not in dispute that on the date of accident or within reasonable time, the petitioner did not make any payment towards compensation to the respondent.
5.4 On the other hand, it is also true that the respondent did not file the claim-application within period of limitation prescribed under the Act. It is also true that his application before the learned Commissioner was filed belatedly and thus, was barred by limitation prescribed under the Act.
5.5 The provision under the Act particularly Section 10 of the Act empower the learned Commissioner to condone delay in case where the claimant-workman satisfies the learned Commissioner about sufficient cause for not having filed the application within prescribed limitation. If upon consideration of the explanation given by the claimant, the learned Commissioner is satisfied about the cause which prevented the claimant from filing the claim application in time, he is empowered to condone delay. In present case, the respondent had, in his application seeking condonation of delay, submitted, (free translation) inter-alia, that:-
"(1) I, the applicant met with an accident on 11.10.1996 during discharging duty at the place of the opponent of this case. On account of the said reason, I have sustained serious injuries and I have become disabled permanently.
(2) As per the provision of the Workman Compensation Act, 1923, the application should be filed for getting compensation within two years from the date of accident. But, I, the applicant could not file the application before the Commissioner in respect of getting compensation due to following reasons:-
(A) I, the applicant had to take treatment as an indoor patient in the hospital due to serious injuries sustained by me. Moreover, thereafter, the follow up treatment continued for a very long period.
(B) After the incident of the accident, the opponent had given me, the applicant such assurance and trust that I shall never be terminated from service and the light work i.e. the duty of Peon shall be given in the institution. As he was our employer, keeping trust on his fact and promise and as the question was pertaining to our livelihood, I had not initiated and proceeding.
(C) I was given such promise and trust by the opponent at the relevant time that he would regularly send admissible monthly salary to me at my village Sevak Devaliya. Therefore also, I waited in this regard and any proceeding had not been initiated.
(D) I am a poor, illiterate and ignorant villager and therefore, I may have no such knowledge that such application should be filed within necessary time limit. I could not file this application within time limit.
(3) Thus, due to above mentioned my just reasons and for the reasons that opponent had given promise and trust in respect of my livelihood and service, I could not file my application in stipulated time.
(4) The Workman Compensation Act, 1923 is enacted for an object of social welfare and for the protection of interest of workmen. If any this application for condonation of delay is not granted, I shall be compelled to deprive of the right of getting compensation and I shall have to bear intolerable economical loss. In this circumstances, it is necessary to grant my application in the interest of justice.
(5) Therefore, by filing this application, it is prayed:-
(A) to allow our this application.
(B) to register the original compensation application by condoning delay caused by the applicant in filing the original compensation application.
(C) to grant any such other reliefs in the matter as may be deemed fit and proper by the Hon'ble Court.
(6) My affidavit is attached in support of this application."
5.6 Obviously, the petitioner-employer had contested the said application. The petitioner-employer started his points of objection from the basic point i.e. disputing the employer and employee relationship. Having raised the dispute about existence of employer and employee relationship at the second stage, the petitioner-employer objected the maintainability of the application on the ground of delay. The petitioner-employer also contested the claim for compensation and submitted that the amount is not payable. Accordingly on diverse grounds, the application came to be contested. The learned Commissioner, after having considered the objection raised by the petitioner-employer, allowed the application and condoned delay in filing the claim petition.
6. In this backdrop, Mr.Jasani learned advocate for the petitioner has, inter-alia, submitted that the learned Commissioner failed to appreciate that the respondent-workman had not made out sufficient cause and had not tendered satisfactory explanation for delay. Mr.Jasani, learned advocate submitted that in absence of any sufficient cause having been established and in absence of satisfactory explanation for delay in preferring the application, such long delay of almost 6 years should not have been condoned. Mr.Jesani, learned advocate referred to the various documents produced on record of present petition and contended that the documents which were produced by the workman related to the year 1996 or 2000 and on that strength he contended that the explanation on ground of ill-health or treatment cannot be said to have been established. Thus, satisfactory explanation regarding delay is not tendered and any case for condonation of delay is not made out.
7. Having regard to the facts of the case, I am of the view that the petitioner has failed to make out any case to interfere with the discretionary order passed by the learned Commissioner.
7.1 Neither in his reply before the learned Commissioner nor in the petition and neither during the submission made before this Court, the petitioner has even once, alleged and contended that the application of the respondent was actuated by mala-fide. In absence of any allegations about mala-fide, particularly in absence of any material to establish the mala-fide, ordinarily Court would not interfere with the discretionary orders passed by the learned Commissioner.
7.2 As noted above the petitioner has assailed the order passed by learned Commissioner condoning the delay on diverse grounds. On examination of the grounds raised by the petitioner against the order it emerges that almost all of them are such which can be, and which ought to be raised and considered when the claim petition is tried on merits. Illustratively speaking, the petitioner has claimed there never was employer-employee relationship between the petitioner and respondent. The said issue is a matter of evidence. The respondent can establish the relationship if the claim petition is tried on merits. However to oppose the application seeking condonation of delay on the said ground i.e. absence of employer-employee relationship, tantamount to preempting the main claim petition and the decision therein and also amounts to frustrating the trial of the main petition without affording opportunity to the respondent to establish the relationship. In my view, the decision of the Commissioner does not deserve to be faulted or disturbed on such ground.
7.3 Furthermore, the petitioner has contended that the documents produced by the respondent along with the application go to show that the said documents are not of period beyond 2000. Obviously the respondent placed on record the documents to prima-facie establish the factum of accident and the fact that he had undergone the treatment and that even after discharge from the hospital he and to continue to take medicine. The fact that the respondent produced some of the documents, cannot be considered as an impediment and cannot be construed, at the stage of considering application seeking condonation of delay, to mean that the respondent would not be able to place on record sufficient, cogent evidence e.g. Doctor's evidence (by examining concerned doctor who treated him after accident) etc. when the claim is tried on merits. Actually the said documents, prima facie, go to show that the respondent met with an accident and had to undergo the treatment. It would be matter of evidence to establish that the accident did not occur at the petitioner's undertaking/establishment. Hence, it is one of the reasons that the order condoning delay so that the claim of respondent can be examined on merits, does not deserve to be set aside.
7.4 The petitioner has also disputed the respondent's assertion that for long time he had to undergo the treatment as a result of which he was prevented from raising the claim. Whether the said assertion is justified or not, is also a matter of evidence which can be provided the matter is tried on merits and the respondent gets an opportunity to lead sufficient evidence at the trial.
7.5 Besides the aforesaid aspects, it is also relevant to note that the respondent asserted that he was assured by the petitioner-employer that after his recovery he would be assigned lighter duty e.g. of a peon and he would be in the meanwhile paid the wages regularly every month. The petitioner, in the petition disputes the said assertion of the respondent. Even at the time when learned Commissioner was considering the delay condonation application, the petitioner disputed the said assertion of the respondent before the learned Commissioner also.
7.6 Whether such assurance was given or not, is also matter of evidence which the respondent can establish during the trial when he gets opportunity to lead oral and documentary evidence. Likewise the petitioner can disprove the said assertion by subjecting the respondent to cross-examination.
7.7 However the claim that since the petitioner denied and disputed the respondent's assertion, the delay should not be condoned, is unacceptable and unsustainable. The learned Commissioner rightly observed that the respondent asserted that assurance was given in view of which he had earlier not filed the claim petition, then it would not be just and proper to not to make available the opportunity of trial on merits to the respondent where the veracity of his assertion can be tested.
7.8 The petitioner's contention, if entertained and accepted, would amount to denying the respondent's opportunity to lead evidence and prove his case. Differently put, it would also amount to accepting the petitioner's bare denial without testing its veracity in light of enough evidence.
8. The provision under Section 10 confers wide discretion to the learned Commissioner. The provision allows the Commissioner to be satisfied about the sufficient cause. If for the reason recorded in the order the Commissioner, in any given case, is satisfied about the sufficiency of the cause and exercises discretion in favour of condoning delay then a writ petition challenging such decision would provide very little and limited scope of interference against such exercise of discretion by the learned Commissioner, who is, by statute, conferred with wide and discretionary powers. Of course such power and discretion ought to be exercised judiciously. It is trite to say that wider the power and discretion, wider and larger the obligation to be extra cautious in exercise of such discretion.
8.1 When the order impugned in present petition is examined it emerges that the learned Commissioner has taken into consideration various aspects raised before him including petitioner's objection and found it appropriate and just to exercise discretion and condoned delay so that the rival and conflicting contention, claims and objection can be considered on merits.
9. It is pertinent to note that if the order impugned in present petition is allowed to operate then the petitioner also would get opportunity to subject the respondent to cross-examination and get the respondent's claim and assertion and their veracity tested before the learned Commissioner in light of the evidence which may be brought on record. It would be open to the petitioner to also challenge the respondent's claim that he was petitioner's workman and/or in petitioner's employment at the time of alleged accident and get it tested. It would also be open to and possible for the petitioner to claim and contend that if the respondent succeeds, then in view of the delay caused by the respondent, the direction awarding interest and/or penalty may be appropriately modified and any relief for the intervening period may not be granted. All these and such other opportunities would be available to the petitioner if the case is tried on merits.
9.1 Whereas if the petition is accepted and the impugned order is set aside then it would render the respondent without remedy and without compensation, and that too without opportunity of establishing his claim and contentions.
9.2 Thus, on overall consideration of the matter and upon examining petitioner's contention and the impugned order from different perspectives and angle I am convinced that the impugned order does not warrant any interference and the learned Commissioner has not committed any error in allowing the respondent's application seeking condonation of delay. The impugned order does not suffer from any infirmity and it cannot be said that the learned Commissioner has exercised his discretionary power arbitrarily or irrationally or indiscriminately.
10. In this context, a reference may be made to the judgment of the Hon'ble Apex Court in the case between N. Balakrishnan and M. Krishnamurthy, reported in 1998 (7) SCC 123, wherein the Hon'ble Apex Court has observed in para nos.9 and 11 to 12 as under:-
"9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refused to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Low o limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Low of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]."
(emphasis supplied) 10.1 Earlier, in case of Collector, Land Acquisition, Anantnag & Anr. V/s. Mst. Katiji & Ors. reported in AIR 1987 SC 1353 the Hon'ble Supreme Court has observed as under :-
"To condone, or not to condone, is not the only question. Whether or not to apply the same standard in applying the "sufficient cause"
test to all the litigants regardless of their personality in the said context is another.
3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause"
employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 389 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained"
does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the in-390 herited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. Appeal is allowed accordingly. No costs. Appeal allowed." (emphasis supplied) 10.2 A reference may also be made to the observation of this Court in the case of Special Land Acquisition Officer, Godhra V/s. Lilavatiben Kodar Ranchhod & Others reported in 2002(3) GLH 226 wherein at para 7 it is observed that :-
"7. Apart from that the ultimate anxiety of the Court while dealing with an application of condonation of delay has been, to see that ordinarily no meritorious matter is thrown over board on the technical grounds of delay. The purpose and design incorporating the provisions of Section 5 of the Limitation Act is to see that ordinarily a substantial justice is required to be given and ordinarily, unless there are circumstances running counter to the spirit of the provision of section 5, the meritorious matters are required to be dealt with and adjudicated upon on merits. It is rightly said that no party or person would stand benefitted by filing appeal or application late without any reason ordinarily when he has made up his mind to challenge the impugned order, award, judgment or decision, as the case may be. There cannot be such presumption also. This proposition of law is also very well settled since long. Therefore, while dealing with an application for condonation of delay, one cannot start with presumption that party did not intend to question it. On the contrary, the presumption may be other way round. Whereas in the present case it is manifested in the application that the certified copy of the impugned common award was applied for on the same day when the Reference Court finalized the matters. Therefore, the contention that delay cannot be condoned in this group of matters is unsustainable and unacceptable."
11. It is also appropriate to refer to the decision, the Apex Court in the case between State of West Bengal Vs. The Administrator, Howrah Municipality wherein the Apex Court considered the issue whether the expression "sufficient cause" should receive liberal construction. In the said decision, the Apex Court referred to the earlier judgment in the case between Ramlal Vs. Rewa Coalfields Ltd. (AIR 1962 SC 361) wherein it has been pointed out:-
"29.
In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be light-heatedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred no the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) ILR 13 Mad 269, S.5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."
12. After referring to the said observations, the Apex Court observed in para-30 of the judgment that from the above observations it is clear that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.
13. What emerges from the aforesaid observations is, as noted in the said decision, also that when sufficient cause for excusing delay is shown, the discretion is given to the Court to condone delay and that the discretion has been deliberately conferred on the Court so that the judicial power and discretion may be exercised to advance substantial justice. The discretion needs to be exercised in the way in which the judicial power and discretion ought to be exercised upon principles which are well understood and the words "sufficient cause", receiving liberal construction so as to advance substantial justice when any inaction on want of bona-fide is not imputable.
14. Besides this, it is necessary to note that the act imposes obligation on the employer to make payment of compensation on the date of accident or within reasonable time from the date of accident. The employer who fails to discharge the said obligation, would, in view of this Court, ordinarily lose the right to oppose, on the ground of delay/limitation, the workman's application seeking compensation.
15. So as to establish that the reason given by the workman in support of his request for condonation of delay and/or so as to establish that the cause of continued ill-health and that he was undergoing the treatment etc. are incorrect, the petitioner-employer did not cross examine the workman and did not establish that the reason given by the respondent in support of his request for condonation of delay were incorrect.
16. Having not examined his own witness and/or having not subjected and respondent to cross examination and having failed to establish before the learned Commissioner that the reason mentioned by the workman was incorrect, it is not permissible for the petitioner-employer to now raise the contention, in a petition against the order of the learned Commissioner, that the reason given by the respondent-workman are incorrect. The petitioner-employer has failed to lead any evidence to substantiate such contention before the learned Commissioner. In absence of any evidence-particularly the evidence which would disprove such assertions by the respondent, it is not possible to examine such factual aspects, in the petition of present nature.
17. In view of this Court, the learned Commissioner has not committed any error, much-less any jurisdictional error in allowing the application seeking condonation of delay. The order does not suffer from any infirmity. The learned advocate for the petitioner has failed to make out any ground to interfere with the order and/or to establish that the order is perverse or arbitrary and its suffers from jurisdictional error. The petition fails and deserves to be rejected. Accordingly, the petition is hereby dismissed.
18. If this petition had been decided after issuing notice to the workman and after inviting the workman, probably there could have been order of cost, however, since this Court has not issued notice and not invited the workman to appear and oppose the petition, any order imposing cost while disposing the petition is not passed. The petition stands disposed of. No costs.
(K.M. Thaker, J.) rakesh/ Top