CW 10537/08 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.10537/08 Gangadhar Mali Versus Workmen's Compensation Commissioner, Sawaimadhopur & Ors. DATE OF ORDER : 26/05/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Dhananjay Bhardwaj for Mr. Vizzy Agrawal, for petitioner Mr. K.C. Sharma ] for respondents Mr. L.L. Gupta ] *** Instant petition has been filed by petitioner who is respondent No.2 in the proceedings pending before Workmen's Compensation Commissioner, Sawaimadhopur in Claim Case No.17/07, Smt. Mamta Meena Vs. Kamlesh Sharma on 23rd May, 2008 with the request that since both the respondent Nos.1 & 2 have adverse interest, as such he may be permitted to cross-examine the witnesses of respondent NO.5 which was dis-allowed by the authority under order impugned dt.5th August, 2008 [Ann.19] on the premise that such permission cannot be granted in view of R.27 of Workmen's Compensation Rules, 1960. Claim application was filed by non-petitioner Nos.2 & 3 on account of death of their bread winner deceased Kaluram Meena before Commissioner under Workmen's Compensation Act, 1923 impleading CW 10537/08 [2] the petitioner and respondent No.5 as respondent Nos.2-1 respectively. It appears from the record that apart from dispute which non-petitioners have raised before Workmen's Compensation Commissioner, further question arose as to who is the principal employer amongst two respondents. After evidence of appellant was concluded on 18th March, 2008, non-petitioner No.5 produced his witness and cross-examined by the appellant non- petitioner Nos.2-3 on 15th May, 2008. On the next date of hearing i.e. 23rd May, 2008 certainly witnesses of non-petitioner Nos.5 and so also of petitioner were cross-examined by non-petitioner Nos.2-3. From the statements recorded during the course of pending proceedings on behalf of non- petitioners defendant Nos.1-2 as there was adverse interest amongst defendants who is the principal employer. At this stage, the petitioner who is respondent No.2 before the Workmen's Compensation Commissioner filed application on 23rd May, 2008 seeking permission to cross-examine the witness produced by co-defendant (respondent No.5) since they have adverse interest which was disallowed on the premise that R.27 does not grant permission for cross-examining the witnesses. It is not in dispute that after written statement was filed by non-petitioner CW 10537/08 [3] No.5 and so also by petitioner their interest is adverse to each other and it is to be ascertained as to who is principal employer amongst two and to decipher it can only be determined after the defendants are being permitted to cross-examine their witnesses. In such circumstances, it was all the more necessary for Workmen's Compensation Commissioner granting permission to both the defendants nos.1 & 2 permitting to cross-examine their witnesses and that is the only way to determine about the principal employer for just decision of the matter. R.27 of the Rules, 1960 laid down the procedure for appearing and examination of opposite party and if this become adverse to each other for the purposes of examining their witnesses they too become party opposite to each other which requires to cross-examine their witnesses even under R.27 of the Rules. It has been examined by this Court in Sohanlal Vs. Gulab Chand (1965 RLW-346) holding that if there is adverse interest by either of the defendant certainly is entitled to cross- CW 10537/08 [4] examine the co-defendant or his witnesses. In the light thereof, in opinion of this Court, the order impugned passed by Workmen's Compensation Commissioner rejecting application filed by petitioner vide order Ann.19 dt.5th August, 2008 is not legally sustainable and deserves to be set aside. Counsel for respondent No.5 who is defendant No.1 before Workmen's Compensation Commissioner requests that if petitioner is entitled and granted permission to cross-examine his witness, he may also be granted permission to cross- examine the witness produced by the petitioner. Submission certainly requires consideration and deserves acceptance. If petitioner is entitled to cross examine witnesses because of adverse interest, certainly the respondent No.5 is also entitled to cross-examine their witnesses. But at the same time, delay in such matters cause prejudice to the claimants who have approached for compensation under the provisions of the Act. Accordingly, writ petition stands allowed. Order dt.5th August, 2008 [Ann.19] is hereby CW 10537/08 [5] quashed and set aside. Workmen's Compensation Commissioner in Claim Case No.17/07, Smt. Mamta Meena Vs. Kamlesh Sharma, is directed to grant permission to both the defendants in claim application to cross-examine their witnesses, both of them will produce their witnesses on the date fixed by the Commissioner. It is expected from the Commissioner to dispose of the matter expeditiously since it is pending for last more than 18 months by now. Parties are directed to appear before the Workmen's Compensation Commissioner on 15th June, 2009. No order as to costs. [AJAY RASTOGI], J. FRBOHRA10537CW08 26-5FRB.doc