Orissa High Court
M/S.Krishna Coke (India) Pvt. Ltd vs Pooja Behera And Others on 11 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.547 of 2012
M/s.Krishna Coke (India) Pvt. Ltd. Appellant
Mr.G.K.Acharya, Sr.Advocate
-versus-
Pooja Behera and others .... Respondents
Mr.Biswojit Mohanty, Advocate
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
11.8.2022
Order No.
17. 1. The matter is taken up through Hybrid mode.
2. Heard Mr. Acharya, learned Senior Advocate along with
Mr.Budiha, for the Appellants and Mr. Mohanty, learned counsel
for the Respondents.
3. Present appeal by the employer is directed against impugned
judgment/award dated 31st March, 2007 passed by the Deputy/
Asst. Labour Commissioner - Cum - Commissioner for
Workmen Compensation, Cuttack in W.C.Case No.34-D/2007.
4. The deceased-Ranjan Behera was working as a Bhati
Mistry/Foreman under employment of the present Appellants i.e.,
M/s. Krishna Coke (India) Pvt. Ltd, Jajpur having its registered
office at Cuttack. He died in the hospital on 3rd June, 2006 due to
the injuries sustained in the accident dated 31st May, 2006. His
wife and two minor children claimed compensation to the tune of
Rs.6,00,000/- on account of death of the deceased in the accident
arising out of and in course of his employment under the
Appellants as Bhati Mistry/Foreman. The Commissioner in the
impugned award has directed for payment of compensation of
Rs.4,19,000/- along with interest @12% from 3rd June, 2006.
5. Mr. Achayra without disputing the employment and
remuneration of the deceased submits for the Appellant that the
Commissioner before passing the award neither issued any notice
to the present Appellant, who was the Opposite Party before the
Commissioner, nor framed any issue to decide the dispute before
passing of the award. Thus, for non-compliance of the provisions
of Rule 26, 27 and 28 of the Employees' Compensation Rules,
1924 (hereinafter stated as '1924 Rules') the award is liable to be
set aside.
6. The substantial question has been framed in the same line. It
is to the effect that, whether the impugned award is unsustainable
for non-compliance of the provisions under Rule 26, 27 and 28 of
1924 Rules.
7. Rules 26, 27 and 28 of 1924 Rules specify the requirement of
issuance of notice to the opposite parties, their appearance, filing
of written statement and framing of issues. The main contention
of Mr. Acharya is to the effect that the Commissioner did not
issue any notice to the company before proceeding in the matter.
Before answering this, it is important to mention here that prior to
coming in the present appeal, the Appellants had earlier
approached this Court in W.P.(C) No.11793 of 2009 challenging
the same award on the plea that it was passed ex-parte without
granting any opportunity of hearing to the Appellants. This Court
by order dated 17th August, 2012 dismissed the said writ petition
with the observation that the award is not an ex-parte order. The
relevant observations of the order are reproduced below:
"Xx .. xx .. Taking into consideration the above
materials of facts and statements of the site
manager so also the spot enquiry and after
hearing both parties since the Commissioner
has rightly passed a reasoned award, this Court
holds that the same is not an ex-parte order and
as such is not inclined to interfere with the
same.
Accordingly the writ petition stands
dismissed."
Against the same, Writ Appeal No.308 of 2012 was preferred,
which was also dismissed being devoid of merit.
8. It means this court has already adjudicated on this contentious
issue and answered in negative against the appellant regarding
issuance of notice and valid service of the same. Such finding of
this Court in the earlier order is enough to suggest that there is
valid service of notice and appearance before the Commissioner.
So what is now contended by the Appellant on the same ground is
not permissible.
9. However, as seen from the copy of the L.C.R., order dated 6th
February, 2007 of the Commissioner reflects that notice was
issued to the opposite parties. The subsequent orders further
reveal that since the opposite parties did not appear, the
Commissioner inspected the spot in exercise of power under Rule
36 & 37 of 1924 Rules. The fact of participation of the
Appellants in the inspection proceeding by the Commissioner is
not disputed at the Bar. It otherwise justifies the earlier finding of
this court that that the award is not an ex parte award and that
notice has been sufficiently served on the present Appellants in
the claim proceeding.
10. Next, the question of framing of issue will only arise when
there is affirmation by one party and denial by the other.
Admittedly the Appellant did not file any written statement
despite valid service of notice. Rule 28 of 1924 Rules postulates
that, the Commissioner after considering the written statement
shall ascertain the material proposition on which the parties are at
variance and then proceed to frame the issues. As stated earlier
since no denial was there from the side of the Appellant in
absence of any written statement, question of framing of issue
does not arise at all. So the Appellant fails in his contention that
the award is bad for non-compliance of such provisions of rules.
As such, the substantial question of law is answered against the
Appellants.
11. In the result, the appeal is dismissed.
12. The certified copy of the order dated 17th August, 2012
passed in W.P.(C) No.11793 of 2009 is kept on record.
( B.P. Routray)
Judge
C.R.Biswal
