FAO No.150 of 2008. Page 1 of 4 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 FAO No.150 of 2008. Page 2 of 4 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 FAO No.150 of 2008. Page 3 of 4 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 FAO No.150 of 2008. Page 4 of 4 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