Judgment 1 wp3776.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3776 OF 2015
Shri Sheshrao Bhimraoji Wadbudhe, (Dead)
LRs of Petitioner :
1. Smt. Chandrakala Wd/o. Sheshrao Wadbudhe,
Aged about 45 years, Occu. : Household,
2. Nitesh S/o. Sheshrao Wadbudhe,
Aged about 26 years, Occu.: Labour,
3. Yogesh S/o. Sheshrao Wadbudhe,
Aged about 24 years, Occu.: Labour,
Applicant No.1 to 3 are R/o. Pipla(Kewalram)
Tah. Narkhed, Dist. Nagpur.
.... PETITIONER.
// VERSUS //
1. The Commissioner under the Workmen
Compensation Act cum Judge, Second
Labour Court, Nagpur.
2. Shri Raju S/o. Nanaji Somkuwar,
Aged about 40 years, Occ.: Building
Contractor, R/o. Killa Pura, Ward No.23,
Saoner, Tah. Saoner, Distt. : Nagpur.
3. Smt. Rajni W/o. Sitaram Deshmukh,
Aged about 52 years, Occ.: Household,
R/o. Chhindawara Road, Near MSEB
Power Station, Saoner, Tah. Saoner,
Distt. : Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri R.S.Charpe, Advocate for Petitioner.
Ms T.H.Khan, A.G.P. for Respondent No.1.
Shri M.V.Mohokar, Advocate for Respondent No.3.
___________________________________________________________________
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Judgment 2 wp3776.15.odt
CORAM : Z.A.HAQ, J.
DATED : DECEMBER 12, 2017.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The petitioners (legal heirs of original claimant) have challenged the order passed by the Commissioner under the Employees Compensation Act, 1923 by which delay of about 18 months in filing the application for setting aside exparte order is condoned.
4. The claimant-Sheshrao Bhimraoji Wadbudhe had filed application under Section 22 of the Employees Compensation Act, 1923 against the respondent Nos. 2 and 3 claiming compensation on account of injury caused to him during the course of employment. The respondent No.2 had not put in appearance in the proceedings. The respondent No.3 filed her written statement, but had not participated in the proceedings subsequently. The Commissioner under the Employees Compensation Act, 1923 proceeded with the trial and by the order dated 28 th November, 2008 upheld the claim of Sheshrao Bhimraoji Wadbudhe for compensation of Rs.3,04,992/- with interest as stated in the order. The Commissioner held that the respondent Nos. 2 and 3 are jointly and severally liable to pay the amount. ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 00:18:02 :::
Judgment 3 wp3776.15.odt The original claimant filed execution proceedings and when the notice of execution proceedings was served on the respondent No.3, she filed an application praying that the expate order be set aside. As there was delay in filing this application, the respondent No.3 filed the application praying for condonation of delay which is allowed by the impugned order.
5. The facts on record show that the original claimant-Sheshrao Bhimraoji Wadbudhe was engaged by the respondent No.2 as Mason to carryout the work at the premises owned by the respondent No.3. The defence of the respondent No.3 as reflected in the written statement is that the original claimant was not engaged by her and there was no relationship of employer-employee between the respondent No.3 and the original claimant and therefore, the liability of payment of compensation cannot be fastened on her.
6. The advocate for the petitioners (legal heirs of the original claimant) has submitted that merits of the matter are not relevant and at this stage the only point which is required to be considered is whether the respondent No.3 has been able to show sufficient cause for the delay in filing the application for setting aside the ex-parte order. It is submitted that though the learned Commissioner has condoned the delay, he has recorded that the reason given by the respondent No.3 for the delay in filing the ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 00:18:02 ::: Judgment 4 wp3776.15.odt application for setting aside the ex-parte order cannot be accepted. It is argued that as the Commissioner has not accepted the reason given by the respondent No.3 for the delay in filing the application for setting aside the exparte order passed against her, the delay could not have been condoned and the application filed by the respondent No.3 should have been dismissed. It is further submitted that the order passed by the Commissioner on 28 th November, 2008 cannot be set aside as it has become final against the respondent No.2.
7. The advocate for the petitioner has argued that the order passed by the learned Commissioner on 28th November, 2008 is not challenged by the respondent No.2 and has attained finality against the respondent No.2 and therefore, the order cannot be set aside at the behest of the respondent No.3 also. As the respondent No.2 has not challenged the order passed by the learned Commissioner on 28th November, 2008, it has attained finality against the respondent No.2, however, the respondent No.3 cannot be deprived of the opportunity of defending herself and availing appropriate remedies according to law. Only because the respondent No.2 has not challenged the order passed by the learned Commissioner it does not mean that the respondent No.3 cannot challenge the order passed by the learned Commissioner. It cannot be said that the respondent No.3 cannot seek setting aside of the order passed by the learned Commissioner. ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 00:18:02 :::
Judgment 5 wp3776.15.odt
8. Considering the facts of the case, I am not inclined to interfere with the discretion exercised by the learned Commissioner in condoning the delay in filing the application for setting aside the exparte order passed against the respondent No.3. However, in my view, the amount of costs granted to the petitioners by the Commissioner is insufficient and in my view the respondent No.3 will be liable to compensate the present petitioners by paying costs of Rs.Fifteen Thousand.
9. The order passed by the learned Commissioner is modified. The order condoning delay in filing the application for setting aside exparte order is maintained, however, it is directed that the respondent No.3 shall pay costs of Rs.Fifteen Thousand to the petitioners within one month and produce receipt of it on record of the Commissioner.
The writ petition is disposed in the above terms.
JUDGE RRaut..
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