IN THE HIGH COURT OF JUDICATURE AT PATNA M.A.No. 504 of 2007 1. M/s. Kunal Agency, Maheshkhunt Bazar Chauk, Khagaria, through its Proprietor 2. Anik Mandal @ Anik Lal Mandal, son of late Mahadeo Mandal, Vill & PO Mahesh Khunt, P.S. Mahesh Khunt, District- Khagaria ………Opp. Parties … APPELLANTS Versus Anita Devi, W/O Late Gorelal Chaurasia, Vill. & P.S. Mahesh Khunt, O,S. Mahesh Khunt, District- Khagaria……….Respondent --------- For the appellants:- M/S K.N.Gupta, Satyendra Kishore Prasad & Ashok Kumar Sinha, Advocates. For the Respondent:- Mr. Pravin Kumar Gupta, Advocate. ---------- 8. 25.1.2010 The appeal has come up at the stage of hearing under Order 41 Rule 11 of the Code of Civil Procedure but with the consent of learned counsels for the parties, the matter has been heard at length and being disposed of at the admission stage itself. The appeal is directed against the order dated 30.7.2007 passed by the Deputy Commissioner, Labour-cum- Commissioner Workmen’s Compensation, Munger Sub- Division, Begusarai in W.C. Case No. 26 of 2005. The said case was filed by the respondent, Anita Devi alleging that her husband, Gorelal Chaurasia was employed as a Munshi-cum-Watchman since the year 2000 by the appellants and while he was boarding a train arising out of and in the course of his employment he fell and received injury resulting in his death on 19.8.2004. The death occurred while he was trying to catch a train at Mahesh Khunt Railway Station and 2 he fell down and died on the spot. It was further claimed that the wages of the deceased was Rs. 2000/- per month and notice of the accident was sent on the same day and a claim of Rs. 2.5 lacs was made as lump sum compensation. The said case was registered as W.C. Case No. 26/2005 and notices were issued to the appellants fixing 7.1.2006. The appellants entered appearance through an Advocate, Shri Ravish Kumar Sinha and prayed for time for filing written statement which was allowed and the next date was fixed on 11.2.2006. Again on 25.3.2006 time was prayed for filing the written statement. Thereafter, the counsel for the opposite party-appellants remained absent and ultimately on the request of the applicant-respondent’s counsel, the matter was fixed for evidence. On a consideration of the evidence of the applicant and the documents brought on the record, the Deputy Labour Commissioner-cum-Workmen’s Compensation Commissioner, Munger Sub-division, Begusarai, awarded a compensation of Rs. 1,84,170/-. The admitted position is that the said amount has been deposited by the appellant on 11.9.2007, and a certificate with respect to the same is annexed as Annexure-4.It is stated by learned counsel for the appellants that the amount has not yet been withdrawn which fact is not disputed by learned counsel for the respondent. Learned counsel for the appellant apart from making submissions on the merits of the case, essentially makes two submissions before this Court. The first submission of 3 learned counsel is that in terms of the notification bearing SO 1188 L&E dated 31.12.99 issued by the State Government under Section 20(1) and (2) of the Workmen’s Compensation Act, the Deputy Labour Commissioner, Begusarai has been notified as the Workmen’s Compensation Commissioner for the whole of Darbhanga Division and the Presiding Officer, Labour Court Begusarai has also been notified as the Workmen’s Compensation Commissioner for the districts of Begusarai, Darbhanga, Madhubani and Samastipur. It is further provided in the said notification that the Presiding Officers of Labour Court, as ex-officio Commissioners for Workmen’s Compensation shall deal with all contested cases arising under the said Act and the Rules framed thereunder; the officers other than the Presiding Officer of the Labour Courts as ex-officio Commissioners for workmen’s compensation shall deal with non-contested cases only arising under the said Act and the Rules framed thereunder. It is further provided that petitions for claim of compensation shall be filed in the Court of the Commissioner for the Workmen’s Compensation for uncontested cases and if the cases become contested, they will be transferred to the respective Presiding Officers of the Labour Courts, as ex-officio Commissioner for Workmen’s Compensation for disposal. Learned counsel for the appellants submits that in view of the aforesaid notification the present matter being clearly a contested case as the deceased was not an employee of 4 the appellants according to them, they had every reason to contest the case and for which they had also appointed an Advocate in the Court of the Deputy Labour Commissioner- cum-Workmen’s Compensation Commissioner. The case being contested one, therefore, it was beyond the jurisdiction of the Deputy Labour Commissioner to decide and could only have been decided by the Presiding Officer of the Labour Court as the Worksmen’s Compensation Commissioner. In support of the said proposition learned counsel relies upon a decision of this Court in the case of Oriental Insurance Company Vs. Ram Pyara Paswan & Anr.: 2007(2) PLJR 141, in para-9 of which it has been held as follows:- “9.- So when according to the learned counsel for the appellant, the Presiding Officer of the Labour Court has been appointed as Commissioner under the Act for contested cases and this is not controverted by the other side, and the impugned order shows that the appellant had contested the claim of the applicant- respondent, it is evident that it was beyond the jurisdiction of the Deputy Labour Commissioner to deal with the case and passed the impugned order. This view also finds support from the above decisions relied on by the Insurance Company/appellant. Learned counsel for the appellants further submits that it is true that as a matter of fact, the contest could not be made before the Deputy Labour Commissioner but for that the appellants are not at fault and the default was of the Advocate as he did not pursue the matter in the court below by filing the 5 written statement for which twice he had prayed for time. It is alleged that the duty of the litigant is to appoint an Advocate and thereafter the litigant depends upon the Advocate for pursuing the case. If the Advocate has committed a default then the litigant should not be penalized for the same. In support of the said proposition learned counsel relies upon a decision of the Supreme Court in the case of Rafiq and another Vs. Munshilal and another: AIR 1981 SC 1400, in para-3 of which it has been held as follows:- “3.- The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court’s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch- dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K.Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on 6 the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K.Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi.” Learned counsel also submits that the impugned order also suffers from serious irregularities for the reason that there is no finding that the deceased was an employee 7 of the appellants. It is further submitted that there is also no finding that the death of the deceased arises out of and in the course of his employment. It is urged by him that these are the two very basic requirements, without a finding upon which no compensation can be awarded to the claimant under the Workmen’s Compensation Act and since no such finding has been recorded by the Deputy Labour Commissioner-cum- Workmen’s Compensation Commissioner, the compensation granted by him ought to be set aside. Learned counsel also refers to the written information addressed to the Officer-in-Charge, Railway Police Station, Mahesh Khunt (Annexure-4) in which the factum of the accident of the respondent’s husband while he was boarding the train and his death thereby has been mentioned but no reference has been made therein that he was an employee of the appellants. He also refers to a letter addressed to the Block Development Officer, Gogri submitted on 8.12.2004 much before filing of the application for compensation in which it is stated that the husband of the respondent used to work as labourer and there is no mention of the fact that he was an employee of the appellants. Learned counsel submits that all these documents go to show that the deceased was not an employee of the appellants. For all the aforesaid reasons and particularly on the ground that the appellants had no opportunity to defend themselves and getting the matter decided on contest 8 by the Presiding Officer, Labour Court-cum-Workmen’s Compensation Commissioner, learned counsel submits that the impugned order ought to be set aside and the matter should be remanded to the Presiding Officer, Labour Court-cum- Workmen’s Compensation Commissioner for a decision in accordance with law. Learned counsel for the respondent, on the other hand, submits that the application of the respondent for compensation was filed before the competent authority and upon notices being issued the appellants also appeared through counsel and thereafter if they have not pursued the case, then they have no right to claim that the order passed by the Deputy Labour Commissioner should be set aside. It is submitted that the question of transfer of the case to the Presiding Officer, Labour Court would only have arisen if the contest had been made on behalf of the appellants but the same was not done despite ample opportunity having been granted to them. In the said circumstances, learned counsel contends that the Deputy Labour Commissioner-cum-Workmen’s Compensation Commissioner has rightly passed the order dated 30.7.2007 granting the compensation as the facts stated in the application were supported by the oral evidence of the applicant-respondent and the documentary evidence which had been filed. Learned counsel particularly relies upon the certificate dated 20.8.2005 issued by the Mukhiya of Mahesh Khunt Gram Panchayat in 9 which he had clearly stated that the deceased husband of the respondent was an employee of the appellants and accident took place while he was carrying a draft of Rs. 55,000/- bearing No. 440374 dated 17.8.2004 for depositing the same at Begusarai and he met with the accident on 19.8.2004. Learned counsel for the respondent therefore, submits that the order dated 30.7.2007 of the Deputy Labour Commissioner-cum-Workmen’s Compensation Commissioner ought not to be interfered with. Having considered the submissions of learned counsels for the parties, this Court finds some force in the submission of learned counsel for the appellants. It is evident from the materials brought on the record that the nature of the case is definitely contested one although the contest could not be entered into on account of the fact that learned counsel for the appellants appointed before the Deputy Labour Commissioner- cum-Workmen’s Compensation Commissioner did not appear in the matter after the first two dates. While it is equally the duty of the litigant to ensure that the case is properly proceeded with but in the present matter it is also evident from the record that a prayer had been made by learned counsel for the appellants before the Workmen’s Compensation Commissioner for time in order to file the written statement on two occasions. Thus, the intention was definitely expressed to contest the case. Moreover, the nature of the materials available on the record, make it a fit case for the appellants being given an opportunity to contest the 10 matter before the liability arising from the accident is imposed upon them. Upon a consideration of the entire facts and materials on the record without expressing any opinion on the merits of the matter, this Court is of the view that the matter ought to have gone to the Presiding Officer, Labour Court-cum- Workmen’s Compensation Commissioner for being decided on contest by the parties. The appeal is accordingly allowed. The order dated 30.7.2007 passed by the Deputy Labour Commissioner-cum-Workmen’s Compensation Commissioner, Munger Sub-Division, Begusarai is set aside. The appellants are given a liberty to file their written statement before the Deputy Labour Commissioner within six weeks from today whereupon the Deputy Labour Commissioner shall refer the matter to the competent Presiding Officer, Labour Court-cum-Workmen’s Compensation Commissioner for being decided as a contested case, within a further period of two weeks thereafter. In view of the fact that this is a case of 2005, the Presiding Officer, Labour Court-cum-Workmen’s Compensation Commissioner is directed to proceed expeditiously in the matter and without permitting any unnecessary adjournments, dispose of the same within a period of six months from the date of receipt of the records from the Deputy Labour Commissioner. The deposit of the compensation 11 amount made by the appellants before the Deputy Labour Commissioner on 11.9.2007 shall abide by the result of the case and shall not be handed over to either of the parties until then. Since on account of laches of the appellants and their counsel the respondent has been put to harassment, it is directed that the appellants shall pay a cost of Rs. 5000/- to the respondent which shall be deposited before the Deputy Labour Commissioner-cum-Workmen’s Compensation Commissioner within one month from today, who shall immediately thereafter hand over the same to the respondent-Anita Devi S.Pandey ( Ramesh Kumar Datta, J.)