Rajasthan High Court - JodhpurFirm Bansal Ginning & Oil Mill vs Commi. Under Workmen Comp.Act. &Ors on 10 July, 2012Bench:Arun Mishra,Sangeet LodhaFIRM BANSAL GINNING & OIL MILL, SRI GANGANAGAR VS
                               THE COMMISSIONER UNDER WORKMAN COMPENSATION ACT, SRI GANGANAGAR & ORS.
                                                                (D.B.CIVIL SPECIAL APPEAL (W) NO.711/2008)


                                           1

       IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                            JODHPUR

                                  JUDGMENT

         FIRM BANSAL GINNING & OIL MILL, SRI GANGANAGAR
                                VS
      THE COMMISSIONER UNDER WORKMAN COMPENSATION ACT
                      SRI GANGANAGAR & ORS.
      (D.B.CIVIL SPECIAL APPEAL (W) NO.711/2008)

                    Date of Judgment :: 10.7.2012


         HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA
             HON'BLE MR.JUSTICE SANGEET LODHA



Ms Kamni Chouhan, for the appellant.
None present for the respondents despite service.


BY THE COURT:(PER HON'BLE MR. SANGEET LODHA,J.)1.    This intra court appeal is directed against order of learned Single

Judge of this Court, whereby the writ petition preferred by the

petitioner   assailing   the   validity         of     order        dated         9.10.2007           of

Commissioner, Workman Compensation Act, Sri Ganganagar (referred to

as 'the Commissioner' hereinafter), rejecting the application preferred

by the appellant under Order 9 Rule 13 read withSection 151CPC

accompanied by an application underSection 5of the Limitation Act,

stands dismissed.FIRM BANSAL GINNING & OIL MILL, SRI GANGANAGAR VS
                            THE COMMISSIONER UNDER WORKMAN COMPENSATION ACT, SRI GANGANAGAR & ORS.(D.B.CIVIL SPECIAL APPEAL (W) NO.711/2008)22.    The respondent no.2, a workman was employed with the

petitioner industrial unit, as Sarjan Fitter. On 04.01.2002, when he was

repairing the machine, his right arm was crushed in the machine and,

therefore, he filed a claim petition before the Commissioner against the

appellant and one Shri Om Prakash, the respondent no.3 herein,

claiming   compensation   under       the       provisions          of     theWorkmen's

Compensation Act, 1923(for short 'the Act') quantified at Rs.1,56,974/-.

Despite service, the appellant did not appear and, therefore, the matter

was proceeded ex parte against it. The claim petition was contested by

the respondent no.2 herein. On the basis of the pleadings of the parties,

the Commissioner framed the issues and the parties led their evidence.

After due consideration of the evidence on record the Commissioner

found the appellant herein liable to pay a sum of Rs.1,77,904/- as

compensation to the respondent-workman.3.    The appellant preferred an application under Order 9 Rule 13

read withSection 151CPC for setting aside the ex parte decision dated

31.8.2006 as also order dated 29.10.2005, whereby an order proceeding

ex parte was passed against it. Since, the application preferred as

aforesaid was barred by limitation, the appellant also prayed for

condonation of delay by way of an application preferred underSection 5of the Limitation Act.FIRM BANSAL GINNING & OIL MILL, SRI GANGANAGAR VS
                             THE COMMISSIONER UNDER WORKMAN COMPENSATION ACT, SRI GANGANAGAR & ORS.(D.B.CIVIL SPECIAL APPEAL (W) NO.711/2008)34.    The appellant contended before the Commissioner that summons

of the proceedings were never served upon him and he never refused

the notice alleged to have been sent by registered post. It was averred

that the appellant came to know about the ex parte decision on

03.01.2007 when it received the communication dated 27.12.2006 sent

by the Commissioner, directing payment of amount of compensation.5.    After due consideration of the submissions made on behalf of the

appellant and the order sheets of the proceedings, the Commissioner

found that after service of the notice, the appellant's proprietor Labhu

Ram had put in appearance and his signature appears on the order sheet

of that date. That apart, it was revealed that the notice sent to the

appellant on 10.08.2005 by registered AD post was duly served upon the

proprietor of the appellant-firm. The Commissioner observed that all

these facts have been deliberately concealed by the appellant while

making the applications as aforesaid. Accordingly, the application

preferred for setting aside the ex parte judgment belatedly was

rejected.6.    Aggrieved thereby the writ petition preferred by the appellant

has been dismissed by the learned Single Judge considering the factual

position as noticed above.7.    Learned counsel for the appellant contended that the learned

Single Judge has seriously erred in holding that the appellant was duly
                                                     FIRM BANSAL GINNING & OIL MILL, SRI GANGANAGAR VS
                             THE COMMISSIONER UNDER WORKMAN COMPENSATION ACT, SRI GANGANAGAR & ORS.(D.B.CIVIL SPECIAL APPEAL (W) NO.711/2008)4served. It is submitted that the appellant was never served with the

notice of the proceedings and its proprietor came to know about the ex

parte    judgment    only   on    03.01.2007             when          he      received           the

communication dated 27.12.2006 sent by the Commissioner. Learned

counsel submitted that on the basis of the material on record it is

apparent that the respondent-workman was not employed by the

appellant and, therefore, it cannot be held liable for payment of

compensation.8.      We have considered the submissions of the learned counsel for

the appellant.9.      Indisputably in terms ofOrder 9 Rule 13 CPC, an ex parte decree

passed can always be set aside upon the satisfaction of the court that

either the summons were not duly served upon the defendant or he was

prevented by any sufficient cause from appearing in the case on the

date of hearing. It is pertinent to note that in the instant case the

appellant had taken absolutely false stand before the Commissioner.

The appellant had contended that the summons were never served upon

him and the service has wrongly been treated sufficient on the basis of

the endorsement of refusal on the registered AD post received unserved.

On the basis of the record, the Commissioner found that as a matter of

fact the notices sent to the petitioner on 10.08.2005 by registered AD

post were duly served upon him on 18.8.2005 and, there is no registered
                                                                           FIRM BANSAL GINNING & OIL MILL, SRI GANGANAGAR VS
                                                   THE COMMISSIONER UNDER WORKMAN COMPENSATION ACT, SRI GANGANAGAR & ORS.(D.B.CIVIL SPECIAL APPEAL (W) NO.711/2008)5AD envelope bearing the endorsement of refusal available on record.

      The matter does not end at this, as a matter of fact after service of

      notice as aforesaid, the proprietor of the appellant-firm actually

      appeared before the Commissioner on 28.8.2005, which stands fortified

      from the order sheet drawn on that date which bears the signature of

      the appellant. In this view of the matter, the application preferred by

      the appellant for setting aside the ex parte judgment, taking absolutely

      false stand has rightly been rejected by the Commissioner.10.     In view of discussion above, the appellant was not entitled for any

      indulgence by this Court and, therefore, the learned Single Judge has

      rightly declined to interfere with the order impugned in exercise of

      extraordinary jurisdiction of this Court under Article 226/227 of the

      Constitution of India.11.     In the result, this intra court appeal fails, it is hereby dismissed.(SANGEET LODHA),J.                                                                  (ARUN MISHRA),C.J.



vijAll corrections made in the judgment/order have been incorporated in the judgment/order being emailed.



        Vijayant Sharma, PA