Shri Sheshrao S/O Bhimraoji ... vs The Commissioner Second Labour ...
2017 Latest Caselaw 9526 Bom

 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.

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

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.

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..