Mohd. Idrish And Sons vs Shri Chagga Ali And Anr.
2003 Latest Caselaw 877 Del

JUDGMENT

S.K. Mahajan, J.

1. This order will dispose of the appeal filed by the appellants against the order dated 3.2.1989, passed by the Commissioner, Workmen's Compensation, Delhi whereby the application of the appellants under Order 9 Rule 13 CPC for setting aside the ex-parte order directing the appellants to pay compensation to respondent no. 1 was rejected. A few facts relevant for deciding this appeal are :

Respondent No. 1 claiming himself to be an employee of the appellant firm as well as of respondent No. 2 firm filed an application before the Commissioner, Workmen's Compensation, claiming compensation for the injuries alleged to have been sustained by him during the course of employment with the said firms. In the application, respondent No. 1 had not specified as to with which of the two firms was he employed and while working with which of the two firms he was allegedly injured. While Mohd. Idrish claims to be the sole proprietor of the appellant firm, respondent No. 2 firm is stated to be a partnership firm of his sons with which he has nothing to do. On receipt of notice from the Commissioner, the son of the appellant appeared before him but later on he also stopped appearing and both the firms were proceeded ex parte and an ex parte order was passed against them to pay compensation. On coming to know of the ex parte order, appellants filed an application for setting aside the same. The application was dismissed by the impugned order, aggrieved by which the present appeal is filed.

2. The contention of learned counsel for the appellants is that the appellant was not served with the notice from the Commissioner, Workmen's Compensation and consequently no one had appeared before the Commissioner to defend the case on behalf of the appellant. Respondent no. 1 as already mentioned had filed application claiming compensation not only against the appellants but also against respondent no. 2, namely, New India Stationers, Chawari Bazaar, Delhi. The notice in the case was admittedly received by the son of the appellant. The sons of the appellant are partners in the firm being run under the name and style of New India Stationers and they have nothing to do with the firm M/s Mohd. Idrish and Sons of which Mohd. Idrish is the sole proprietor. The contention of learned counsel for the appellant, therefore is that as the son of the appellant had nothing to do with the firm Mohd. Idrish and sons and he was partner in the New India Stationers, his son had no authority to appear and represent the appellant before the Commissioner, Workmen's Compensation It was also the case of the appellant that he did not had good relations with his sons and rather their relations were strained. It is, therefore, submitted that as the appellants were not served with the notice from the Commissioner, Workmen's Compensation, the ex-parte order passed against the appellants was required to be set aside and an opportunity ought to have been given to the appellant to contest the application of respondent no. 1 on merits. It is also contended that respondent No. 1 could not claim to be the employee of two firms and the order passed against two firms was, in any case, bad and liable to be set aside.

3. The other ground on which the impugned order has been challenged by the appellant is that while dismissing the application of the appellant under Order 9 Rule 13 CPC, the Commissioner has also decided the merits of the case and has held that respondent no. 1 was an employee of the appellants and was thus entitled to claim compensation from them. It is submitted that if the Commissioner, Workmen's Compensation was not inclined to allow the application of the appellant under Order 9 Rule 13 CPC, he could not have proceeded to decide the case in merits afresh. It is submitted that if a fresh decision is taken on the merits of the case, an opportunity ought to have been given to the appellants to defend the case. For this reliance is placed by Mr. Singh upon a judgment of this Court in FAO NO. 91A/1988, Sheikh Amir Versus Asharfi Lal and Others decided on 12th December, 1998.

4. I have gone through the aforesaid judgment of this Court and have carefully considered the arguments advanced by learned counsel for the appellant and I find merits in the same. In Sheikh Amir Vs. Asharfi Lal (supra), it was held by this Court that the authority below, namely, Commissioner, Workmen's Compensation had erred in proceeding to decide the case again on merits while deciding the application for setting aside the ex-parte order. The Court held that since the authority was deciding the case again on merits, interest of justice demanded that an opportunity should have been given to the appellant to substantiate his case as to how and why respondent no. 1 was not entitled to claim compensation from him. The Court had, therefore, set aside the order dismissing the application of the appellant in that case for setting aside the ex-parte order and had given an opportunity to the appellant to contest the case on merits.

5. The aforesaid judgment in Sheikh Amir Vs. Asharfi Lal and Others, in my view, is fully applicable to the facts of the present case. Without, therefore, going into the question as to whether respondent no. 1 could be the employee of two firms at the same time and whether he could claim compensation from two firms for injuries alleged to have been sustained during the course of his employment with one of the firms and whether the son of appellant had been authorised to represent the appellant, in my view, this appeal can be disposed of only on the ground that while deciding the application for setting aside the ex-parte order, the Commissioner could not proceed to decide the case on merits and in case a fresh decision is given on merits of the case an opportunity should be given to the appellants to put forth his defense in the matter.

6. For the foregoing reasons, I allow this appeal, set aside the impugned order and direct the Commissioner, Workmen's Compensation to decide the case afresh on merits insofar as the appellant is concerned. The appellant will file reply to the claim application before the Commissioner, Workmen's Compensation on the date when the matter will be fixed before him and no further opportunity will be given for this purpose. This appeal is, accordingly, disposed of and matter remanded to the Commissioner, Workmen's Compensation with a direction to decide the application of respondent no. 1 for compensation, insofar as the appellants are concerned, on merits. Since no one is appearing on behalf of the respondent, I leave the parties to bear their own costs. The appellant is directed to appear before the Commissioner, Workmen's Compensation on 16.9.2003.

7. The record of the Commissioner, Workmen's Compensation be sent back immediately.