IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 9103 of 2010(O) ------------------------- PETITIONERS: --------------- 1. RAPHAEL, AGED 52 YEARS, S/O.PAUL, 504, KIDANGAM VEEDU, EDAKUNNI VILLAGE, THALNOOR P.O., THRISSUR-6. 2. CICILY, AGED 51 YEARS, W/O.RAPHAEL, 504, KIDANGAM VEEDU, EDAKUNNI VILLGE, THALNOOR P.O., THRISSUR-6. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS) RESPONDENTS: --------------- 1. UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTH-WESTERN RAILWAY HUBLI. 2. UNION OF INDIA, REPRESENTED BY ITS GENERAL MANAGER, SOUTHERN RAILWAY. ADV. SRI.R.SATISH KUMAR FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9103 of 2010 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : CLAIM PETITION O.A.NO.(IIu) NO.19/2008 FILED BY the PETITIONERS BEFORE the RAILWAY CLAIMS TRIBUNAL, ERNAKULAM EXHIBIT P2 : RESTORATION APPLICATION FILED BY THE PETITIONERS BEFORE THE TRIBUNAL. EXHIBIT P3 : DELAY CONDONATION PETITON. EXHIBIT P4 : ORDER DTD 04-12-2009 OF THE TRIBUNAL RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.9103 of 2010 --------------------------------------- Dated this 22nd day of October, 2010 JUDGMENT This petition is directed against Ext.P4, order dismissing applications bearing Diary Nos.236 and 237 of 2009 in O.A(IIu). No.19/2008. By that order, the Railway Claims Tribunal (for short, “the Tribunal”) has declined to condone the delay of 14 days and allow application for restoration of the claim petition bearing No.O.A(IIu).No.19/2008 which was dismissed for default. The reason stated for condonation of delay is that petitioner No.1 is aged about 58 years, a resident of Edakunni Village, in Thrissur District and he was not able to contact the counsel on time. I have heard learned counsel for petitioners and respondents. 2. It is seen from Ext.P4, order that the Tribunal has declined to entertain the application bearing Diary No.236 of 2009 for the reason that petitioners have not complied with Rule 18(2) of the Railway Claims Tribunal (Procedure) Rules, 1989 (ie. filing of the application for restoration within 30 days), the application to condone the delay is not entertainable by the Tribunal as it has no power to condone the delay and since petitioners have not complied with the order of Tribunal Dated 20-08-2009 (before W.P(C).No.9103 of 2010 : 2 : dismissal of the claim petition for default, directing payment of cost of Rs.500/- to the respondents). Learned counsel contends that the view taken by the Tribunal that it has no power to condone the delay is not correct. Learned counsel has referred me to Sec. 13 (1A) of the Railway Claims Tribunal Act, 1987 (for short, “the Act”). 3. As per the said provision the claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Sec.124A of the Act all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil court in respect of claims for compensation now payable by the Railway Administration under Sec.124A of the said Act or the Rules made thereunder. Sec.18(h) of the Act enables the Tribunal to set aside an order of dismissal of any application for default. Going by Sec.13 (1A) of the Act it is clear that on and from the date of commencement of the provisions of Sec.124A of the Act (it is not disputed that the claim petition in this case was filed thereafter), the Tribunal can exercise the jurisdiction, power and authority as were exercisable immediately before that day by any civil court in respect of claims for compensation. The Court had the authority to condone the delay under Sec.5 of the Limitation Act. If that be so, the Tribunal also could exercise that power in view of Sec.13(1A) of the Act. A Division Bench of this court in Thamkam R. Pillai Vs. W.P(C).No.9103 of 2010 : 3 : Arbitrator (1996(1) KLT 225) considered the question whether an Arbitral Tribunal appointed under the Co-operative Societies Act, 1969 (Kerala) could, in the absence of confirment of specific power to that effect in the Act could order impleadment of legal representatives of a deceased party a proceeding before it. The Division Bench held that all powers which are not specifically denied by the statute or the statutory rules should be vouchsafed to a Tribunal so that it may effectively exercise its judicial functions and that “Tribunal” literally means a seat of justice. I also bear in mind that under Sec.18(3)(h) of the Act the Tribunal is vested with the same power as a civil court has, to set aside an order of dismissal of any application for default or any order passed ex parte. There is no reason to think that the Tribunal does not have the ancillary power to condone the delay if an application to set aside the dismissal of ex parte order is filed beyond time for reasons beyond the control of the applicant. In the light of that decision and in view of Sections 13(1A) and 18(3)(h) of the Act referred to above, the view taken by the Tribunal that it has no power to condone the delay cannot be upheld. 4. I stated the reason for delay. It is seen that petitioner No.1 is aged about 58. Reason for delay is that he was not able to contact the counsel. I am satisfied that delay is satisfactorily W.P(C).No.9103 of 2010 : 4 : explained. Hence delay is only to be condoned. Resultantly this petition is allowed in the following lines: Ext.P4, order dismissing applications bearing Diary Nos. 236 and 237 of 2009 in O.A(IIu).No.19/2008 is set aside and those applications will stand allowed. The claim petition will stand restored to file. Tribunal shall decide the claim petition after giving parties opportunity to adduce evidence. Parties shall appear before the Tribunal on 16-11-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-