Hi-Lines Airtel Connect vs Shilpi Dass Barman & Ors
2010 Latest Caselaw 97 Del

                                                         UNREPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         FAO No.150/2008

                               Date of Decision: January 11, 2010


       HI-LINES AIRTEL CONNECT                  ..... Appellant
                      Through Mr. Pankaj Gupta, Advocate

                         versus


       SHILPI DASS BARMAN & ORS                 ..... Respondents
                     Through Ms. Pratima Chaudhary, Advocate
                     for respondents No.1 to 3.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

This appeal is directed against the order of the Commissioner,

Workmen's Compensation/DLC (North) dated March 31, 2008.

Before I come to the impugned order, it is necessary to refer to a few

facts:-

The Commissioner, Workmen's Compensation had earlier

passed an ex-parte order dated September 17, 2004 and thereby had

granted compensation to the claimants under the Workmen's

Compensation Act, 1923. The Management on coming to know of the

ex-parte order filed an application before the Commissioner for

setting-aside of the same. The application so filed was dismissed on

March 01, 2005. Aggrieved by the dismissal, the Management came

to this Court by way of a writ-petition bearing No.19537/2005 which

was disposed of on July 14, 2006. By virtue of the order dated

July 14, 2006, the ex-parte order passed by the Commissioner was

set-aside and consequently, the writ-petition was allowed, with a

direction to the Commissioner to dispose of the application under

Order 9 Rule 13 of the Code of Civil Procedure (hereinafter called the

Code). Consequent to the order of the High Court, the Commissioner

allowed the application of the Management under Order 9 Rule 13 of

the Code, subject to the payment of cost Rs.1,000/-. This order was

passed on September 19, 2006 and the matter was listed for further

proceedings. In the meanwhile, the Management filed an application

under Order 7 Rule 11 of the Code, alleging that the claimants'

application was not maintainable on the ground that they are not

dependents of the deceased in terms of Section 2(d) of the Workmen's

Compensation Act, the accident did not take place in the manner

alleged and that the Commissioner had no jurisdiction to entertain the

claim petition at Delhi, for the reason that the claimants were not

ordinary residents of Delhi. By an order dated March 31, 2008, the

Commissioner dismissed the said application and not only this by the

same order, he also decided the claim application affirming its earlier

ex-parte order passed on September 17, 2004. As noticed at the

outset, it is this order of the Commissioner which is the subject matter

of the present appeal.

It is submitted by learned counsel for the

appellant-Management that the Commissioner has disposed of the

claim application without affording an opportunity to the Management

to cross-examine the witnesses of the claimants or to lead its own

evidence. It is further submitted that once this Court has set-aside

the ex-parte order earlier passed by the Commissioner, it was

imperative on his part to afford an opportunity to the Management to

cross-examine the witnesses of the claimants and to lead its own

evidence.

A perusal of the proceedings of the Commissioner goes to show

that after the case was remanded back to him by this Court, no date

was fixed for either the cross-examination of the witnesses of the

claimants or for the evidence of the Management. As noticed above,

the Commissioner passed a composite order whereby the application

of the Management under Order 7 Rule 11 of the Code was dismissed

and by the same order, the application of the claimants for

compensation was also allowed by affirming the earlier ex-parte order

passed on September 17, 2004. The order so passed cannot be

sustained. Having dismissed the application under Order 7 Rule 11 of

the Code, the Commissioner ought to have given an opportunity to the

parties to lead evidence and ought not to have straightway proceeded

to decide the application for compensation.

In view of the above, the matter is once again remanded to the

Commissioner, with a direction to afford an opportunity to the parties

to lead evidence in support of their respective cases and only

thereafter shall he proceed with the decision of the case.

As the claim petition was filed on August 22, 2003 and as since

then a period of 7 years has gone by, it is necessary that the matter is

disposed of at the earliest. Accordingly, I direct the Commissioner to

dispose of the whole case within 6 months from today. The

Commissioner is further directed to decide the case on the basis of

the evidence which may emerge before him uninfluenced by the

observations made by him in relation to the application under Order 7

Rule 11 of the Code.

The parties are directed to appear before the Commissioner on

January 22, 2010.

The record of the Commissioner be sent back forthwith.

Dasti.

REKHA SHARMA, J.

JANUARY 11, 2010 PC/ka