Kerala High Court
Abdul Rahiman vs Secretary on 28 January, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:6011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 28TH DAY OF JANUARY 2025 / 8TH MAGHA, 1946
WP(C) NO. 15133 OF 2024
PETITIONER:
ABDUL RAHIMAN,
AGED 60 YEARS, S/O.MUHAMMADKUTTY,
KARIKKAYIL HOUSE, CHELAKKODE PO,
THRISSUR, PIN - 680587.
BY ADV.
SRI.L.RAJESH NARAYAN
RESPONDENTS:
1 SECRETARY,
INDUSTRIAL TRIBUNAL, OLAVAKODE,
PALAKKAD, PIN - 678002.
2 COMMISSIONER FOR EMPLOYEE'S COMPENSATION,
OLAVAKODE, PALAKKAD, KERALA,
PIN - 678002.
3 DEPUTY TAHSILDAR,
THALAPPILLY TALUK,
THRISSUR, PIN - 680601.
4 VILLAGE OFFICER,
CHELAKKODE, THRISSUR,
PIN - 680587.
2025:KER:6011
W.P.(C) No.15133/2024
:2:
5 MURALEEDHARAN,
S/O.NARAYANAN, KUNNATH PADINJARE HOUSE,
THEKKEPOTTA POST, PALAKKAD,
PIN - 678687.
BY ADVS.
SRI.C.A.CHACKO, R5
SMT.C.M.CHARISMA, R5
SMT.MABLE C KURIAN, SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.11.2024 AND THE COURT ON 28.01.2025
DELIVERED THE FOLLOWING:
2025:KER:6011
W.P.(C) No.15133/2024
:3:
N. NAGARESH, J.
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W.P.(C) No.15133 of 2024
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Dated this the 28th day of January, 2025
JUDGMENT
~~~~~~~~~
The petitioner is the opposite party in a
Workmen Compensation Case filed by the 5 th respondent
before the Commissioner or Employees Compensation,
Palakkad.
2. The 5th respondent filed WCC No.185/2004
(later renumbered as ECC No.96/2011) before the 2nd
respondent alleging that the 5th respondent sustained injuries
on 19.05.2004 in the course of his employment under the
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petitioner. The 5th respondent stated that while he was
working as Mason on 19.05.2004 on the second floor of the
newly constructed building, he fell down from the second floor
and sustained serious injuries.
3. The petitioner states that he was not aware
fo the case as he was working abroad from 1980 to 2013 as
Helper in a grocery shop. When he lost job in 2013, he went
to Mysore and worked in a hotel. He came back and settled
in his native place only in the year 2017.
4. The petitioner states that he had not
employed the 5th respondent. The petitioner had given
contract to a Contractor named Ali in the year 2004. After
completion of building work, possession was handed over to
the petitioner. To the best of the knowledge of the petitioner,
the 5th respondent did not work as a Mason in the contract in
respect of the construction of the petitioner's building. The
petitioner and the 5th respondent have no employer-employee
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relationship.
5. On 12.07.2018, the petitioner was served
with a revenue recovery notice from which only the petitioner
came to know about the Workmen Compensation Case. The
petitioner thereafter obtained a copy of Ext.P1 ex-parte order
dated 07.11.2012 of the Court of the Commissioner for
Employees Compensation, from which the petitioner came to
know that the Court had directed to deposit an amount of
₹3,09,406/- together with simple interest at the rate of 12%
per annum from 19.05.2004. The petitioner filed IA
No.32/2018 seeking to set aside the ex-parte order. The IA
was filed along with Ext.P3 application for condonation of
delay of 2354 days.
6. The petitioner had approached this Court
also filing W.P.(C) No.25369/2018 and this Court disposed of
the writ petition as per Ext.P4 judgment directing the 2nd
respondent to take up Exts.P2 and P3 and pass orders within
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two months.
7. Before the Commissioner for Employees
Compensation, the petitioner produced documents to show
that he was abroad during the relevant time. The petitioner
states that though there were valid reasons to condone the
delay, the 2nd respondent has proceeded to dismiss Exts.P2
and P3 stating untenable reasons as per Ext.P6 order dated
19.02.2024. Ext.P6 order is highly illegal and arbitrary,
contends the petitioner.
8. The 5th respondent resisted the writ petition
filing counter affidavit. The 5th respondent pointed out that
Ext.P1 order was passed by the 2nd respondent in the year
2004. Notices sent to the petitioner were returned with the
endorsement "Addressee refused". Accordingly, he was set
ex-parte on 08.02.2012. The case of the 5th respondent was
allowed on 07.11.2012. The petitioner filed Exts.P2 and P3
applications to set aside the ex-parte order and to condone
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delay, only in the year 2018, after lapse of nearly six years.
9. The 5th respondent further stated that he has
sustained 40% permanent disability of body as a whole and
70% of loss of earning capacity. The 5th respondent is
continuing treatment. The writ petition is therefore without
any merit and it is liable to be dismissed.
10. I have heard the learned counsel for the
petitioner, the learned Senior Government Pleader
representing respondents 1 to 4 and the learned counsel
appearing for the 5th respondent.
11. The accident arose on 19.05.2004.
According to the 5th respondent, it was an employment
accident while he was engaged as a Mason for construction
of a building of the petitioner Workmen Compensation Case
was filed in the year 2004 itself. The petitioner was set ex-
parte as per order dated 08.02.2012. the 5th respondent
adduced evidence. The Compensation Claim was allowed on
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07.11.2012. In this writ petition, there is no challenge of
Ext.P1 Award. The petitioner seeks to set aside Ext.P6 order
in IA No.31/2018. The said IA is filed by the petitioner to
condone the delay of 2354 days in filing the application to set
aside ex-parte order dated 08.02.2012. The case of the
petitioner is that he had been working abroad from 1980 to
2013 and thereafter he went to Mysore to work in a Hotel.
The petitioner came back only in the year 2017. There is no
employer-employee relationship between the petitioner and
the 5th respondent.
12. The petitioner has admitted construction of
his new building in the year 2004. The petitioner has obtained
possession of the building also after construction. The
accident occurred on 19.05.2004 during construction work.
The petitioner did not adduce any evidence in the WCC/ECC
to show that he was in Gulf at the time of accident.
13. If notices were issued to the petitioner's
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home address, then the fact that the petitioner was abroad
during the relevant time could not nullify the service of notice.
This is a case of employment injury where the workman has
suffered 40% permanent disability of body as a whole and
70% loss of earning capacity due to the accident. Though the
accident was in the year 2004, the workman could get an
Award in his favour only on 07.11.2012, after eight years. In
such circumstances, the judgment of the Hon'ble Apex Court
in Delhi Development Authority v. Jagan Singh [2023 KLT
OnLine 1677] relied on by the petitioner can have no
application, especially when the petitioner has no case that
notice of proceedings was not sent to his permanent address.
In such circumstances, I find no merit in the
writ petition. The writ petition is hence dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/27.01.2025
2025:KER:6011
APPENDIX OF WP(C) 15133/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED
07.11.2012 IN ECC NO.96/2011 (OLD
NO.WCC 185/2004) OF THE COURT OF
COMMISSIONER FOR EMPLOYEE'S
COMPENSATION, PALAKKAD
Exhibit P2 TRUE COPY OF THE PETITION TO SET ASIDE
THE EXPARTE ORDER AS IA NO.32/2018
DATED ..07.2018 IN ECC NO.96/2011 (OLD
NO.WCC 185/2004) OF THE COURT OF
COMMISSIONER FOR EMPLOYEE'S
COMPENSATION, PALAKKAD
Exhibit P3 TRUE COPY OF THE PETITION TO CONDONE
DELAY IA NO.31/2018 DATED ..07.2018 IN
ECC NO.96/2011 (OLD NO.WCC 185/2004)
OF THE COURT OF COMMISSIONER FOR
EMPLOYEE'S COMPENSATION, PALAKKAD
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED
31.10.2023 IN WPC NO.25369/2018
Exhibit P5 TRUE COPY OF THE MEMO DATED 29.1.2024
FILED BY THE PETITIONER IN ECC
NO.96/2011 (OLD NO.WCC 185/2004) OF
THE COURT OF COMMISSIONER FOR
EMPLOYEE'S COMPENSATION, PALAKKAD
Exhibit P6 TRUE COPY OF THE ORDER DATED 19.2.2024
IN IA NO.31/2018 DATED 19.2.2024 IN
WCC NO.96/2011 OF THE COURT OF
COMMISSIONER FOR EMPLOYEE'S
COMPENSATION, PALAKKAD
