Shri Rajendra Prasad vs Workmen Compensation ...
2023 Latest Caselaw 11989 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - C No. - 6263 of 2021
 

 
Petitioner :- Shri Rajendra Prasad
 

 
Respondent :- Workmen Compensation Commissioner And Another
 
Counsel for Petitioner :- Adarsh Kumar,Jay Singh Yadav
 
Counsel for Respondent :- C.S.C.,Bal Ram Gupta
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Adarsh Kumar, learned counsel for the petitioner, learned Standing counsel on behalf of respondent No.1 and Sri Bal Ram Gupta for respondent No.s 2 and 3.

2. The respondent No.3, who is mother of the deceased employee moved an application under Section 41 of the Workmen Compensation Act, 1924 read with Order IX Rule 13 of C.P.C. preferred before respondent No.3 seeking compensation for the death of her son who died during course of employment of the petitioner.

3. Respondent No.3-claimant had stated that her son Dharmendra aged about 20 years was employed with the petitioner for nearly one year and was cleaner/helper of the JCB bearing No.UP 78 CN 8552 and was receiving about Rs.10,000/- per month along with Rs.100/- per day for food and lodging expenses. He worked for 12 hours a day and on the date of the incident i.e. 11.5.2015 in Village Chittapur Majra Dadankheda, police station Kalyanpur District Fatehpur where the deceased employee was working on the JCB owned by the petitioner bearing No.UP 78 CN 8552 which was being driven by the driver and involved in the work of digging along with a dumper/truck bearing No.UP 78 CN 7151. At about 12 p.m. during the said digging both the machines collided with each other due to which the JCB rolled over and under it the son of respondent No.3 was buried and died on the spot.

4.The petitioner, who is owner of the vehicle, was immediately informed and when he reached on the spot along with other villagers the petitioner was lying buried under the JCB. In order to escape the liability it is stated that the petitioner tried to change the number of the vehicle which were involved in the said accident as the actual vehicle in the said accident was not insured and accordingly he himself got an F.I.R. registered under the signature of the father of the deceased so as to tamper with the evidence. It is further stated that the petitioner continuously assured the respondent No.3 that he will pay compensation for the death of her son but no money or compensation was paid and consequently the application was moved under the Employees Compensation Act, 1923.

5. During the said proceedings notices were issued to the petitioner, who was respondent in the said case. Notices were returned back along with endorsement that the petitioner could not be found and subsequently another notice was sent which was returned stating that he has refused to accept the notice. Considering the aforesaid facts that the respondents despite notice has refused to join the proceedings the same were held ex-parte against the petitioner.

6. The Prescribed Authority / Commissioner under the Employees Compensation Act considered entire material adduced by respondent No.3 herself including oral evidence in support her case for compensation. The claim was also supported by various other documents where it was shown that the son of the claimant had met with an accident wherein the vehicle owned by the petitioner was involved due to which her son had died after the vehicle had tumbled over and crashed on the body of the deceased. It was also shown that the said mishap occurred while the deceased was on duty of the petitioner. The deceased was also subjected to post mortem. The Prescribed Authority found that the respondent was entitled for the claim and accordingly allowed the claim vide order dated 29th September, 2018 awarding an amount of Rs.8,96,000/- as compensation.

7. Against the said award rendered on 29th September, 2018 the petitioner immediately moved an application for recall of the said order. In the application for recall he contested the fact that the petitioner was not properly served and there were material available on record to conclude that the service of notice was not proper. He further contested the award on merits and further stated that according to the notification dated 9.7.2014, the Prescribed Authority could not have adjudicated upon the award. Th recall application preferred by the petitioner was duly considered and rejected by means of order dated 30.10.2019.

8. While rejecting the application or recall the Prescribed Authority has again revisited the entire facts and he had confirmed the fact from the record that despite service of notice the petitioner deliberately did not appear and join the proceeding. He also relied upon the judgment of Supreme Court in the case of State of Madhya Pradesh VS. Heera Lal, 1996 (27) FLR 313 where it has been held that if the house is found to be locked or that the respondent is not available then the service would be deemed to be sufficient. In the present case, he has further observed that there is endorsement of the postal authority that the petitioner had refused to accept the notice which also was considered to be an adequate service of notice. He has further recorded a finding that the petitioner was adequately served and despite service he had not put in appearance and consequently did not find any reason to interfere with the award. He has also considered other objections raised by the petitioner with regard to difference in the registration number of the vehicle. After considering the submissions made by the petitioner the application for recall was rejected vide order dated 3.10.2019.

9. Assailing the aforesaid two orders learned counsel for the petitioner has submitted that the petitioner was not adequately served and consequently the order for proceeding ex-parte against the petitioner is illegal and arbitrary and deserves to be set aside.

10. Learned Standing counsel, on the other hand, has supported the impugned orders and submitted that the petitioner was served on two separate occasions through clear endorsement of the postal authorities that the petitioner has refused to accept the notice. Needless to say that once a person as refused to accept a notice he will be deemed to have accepted the notice and his non-appearance or non-joining the proceedings would be held to be intentional despite adequate service.

10. Hon'ble Supreme Court in the case of M/s. Ajeet Seeds Ltd. Vs. Gopala Krishnaiah passed in Criminal Appeal No.1523 of 2014 has held as under:-

"8. This Court then referred to Vinod Shivappa?s case, where the above aspects have been highlighted. This Court quoted the following paragraph from Vinod Shivappa with approval.

?15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre-mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.?

9. This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read as under:

?13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:

?27. Meaning of service by post.- Where any Central Act or regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ?serve? or either of the expressions ?give? or ?send? or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post?.

14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ?refused? or ?not available in the house? or ?house locked? or ?shop closed? or ?addressee not in station?, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.?

10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business."

11. This aspect of the matter has been adequately and elaborately dealt with by the Prescribed Authority while deciding the recall application. He has stated that a postal letter sent through registered post was deemed to be accepted by the petitioner when it has been endorsed that he has refused to accept the notice. On another occasion the postal notice has been returned with the remark that the respondents could not be contacted on the address stated and endorsement has been made on 25.4.2019. It is not the case of the petitioner that the endorsements made by the postal authorities in the notices were incorrect or forged.

12. It light of the above, it cannot be said that there is any infirmity in the findings of the Prescribed Authority requiring interference of this Court under Article 226 of the Constitution.

13. Another ground raised by the petitioner is that the Prescribed Authority did not have the qualification as laid down under Section 20 of the Employees Compensation Act, 1923. The objection raised by him have been reduced in writing in paragraph 20 of the application for recall submitted before the Prescribed Authority. He submits that the Government of Uttar Pradesh has appointed all the Additional/ Deputy / Assistant Labour Commissioner as Commissioners under the Employees Compensation Act vide notification dated 9.7.2019 superseding all the previous notifications. In support of paragraph 20 neither any qualification of the Prescribed Authority has been mentioned nor is there any averment that he did not fulfill the qualifications prescribed under the Employees Compensation Act, 1923. In absence of any pleadings having been made it cannot be said that the Prescribed Authority did not have any qualification. Even otherwise any order passed by a competent authority would be valid and legal unless it is proved otherwise. No material was adduced by the petitioner to challenge the qualification of the Prescribed Authority. In absence of any pleadings no finding can be returned in this regard. Accordingly, the said plea also fails.

14. In light of the above, this Court is of the considered view that there is no merit in challenge to the award or order passed on the application for recall preferred by the petitioner, hence, the petition is dismissed.

15. Considering the fact that this Court has dismissed the writ petition and upheld the award as well as the order passed on the application for recall, the amount of compensation which has been deposited by the petitioner with the Commissioner under Employees Compensation Act, 1923 shall be released in favour of respondent No.3 expeditiously on her making a suitable application before the concerned authorities.

Order Date :- 20.4.2023 (Alok Mathur, J.)

RKM.