1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1543 0F 2009 *** Shri Tukaram Saloba Mokale Versus Smt. Nirmala Bhagwan Mokale and another *** 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. Counsel appearing for respective Respondents waive Rule notice, though both of them have not filed affidavits in reply. 3. This petition takes exception to the judgment and order passed by the learned Judge, Labour Court, Aurangabad in Misc. Application WC (Delay) No.129 of 2006 dated 22nd December, 2008. This was an application seeking condonation of around 5 months 6 days delay, occurred in filing the application for setting aside the ex-parte award passed by the learned Judge, Labour Court. This application is rejected by the learned Judge, 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Labour Court holding that no just and sufficient reason is assigned by the present petitioner. This order is impugned in this writ petition. 4. It is not in dispute that the Respondent No.1 in this application had filed application NO.41 of 2004 in the Court of learned Judge, Labour Court at Aurangabad under section 3, 4 of the Workmens Compensation Act, 1923 (the said Act, for short) seeking compensation on account of death of her husband Bhagwan S/o Apparao Mokale. It was her contention that her husband, at the relevant time, was working with the Respondent No.2 cooperative Sugar Factory. Such employment was through Respondent NO.3, who, at the relevant time, was acting allegedly as Gang man. Last drawn salary of the husband of the petitioner was Rs.1,500/- per month. Said application was heard and decided by the learned Judge, 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Labour Court by the judgment and order dated 14th June, 2006. Copy is on record. It is not in dispute that Award was for Rs. 1,55,985/-, penalty of Rs.50,000/- and interest at the rate of 12% p.a. from the date of accident till realisation of the amount of compensation. Liability was joint and several i.e. of the Gang man and cooperative sugar factory. It is also not in dispute that this was an ex-parte judgment, so far as the present petitioner is concerned. 5. The present petitioner filed an application before the learned Judge, Labour Court under section 5 seeking condonation of delay, occurred in filing application for setting aside the exparte judgment and Award passed by the learned Judge, Labour Court in Misc./W.C.41 of 2004. That was under section 3, 4 of the said A t. The application seeking condonation of delay is on record, 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. page 25. In this application, para 2, it has been contended by the present petitioner that he could not file application for setting aside the exparte judgment and Award for the reason that he does not know regarding delivery of exparte judgment in proceeding application No.41 of 2004. On this sole ground, delay of around 5 months 6 days was sought to be condoned. This was the application filed on 2nd February, 2006. 6. This application has been rejected by the trial Court as noticed herein above. Both the learned counsel for Respondents did not file reply but then vehemently opposed the present writ petition. According to them, the judgment and order is just and proper. The trial Court did observe in its order that present petitioner was served with the main proceeding i.e. application No.41 if 2994, did engage a lawyer. Applicant/ petitioner did not remain present for hearing 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. of the application 41 of 2004, neither his lawyer remained present, that is how learned Judge has observed that ex-parte judgment was delivered in application NO.41 of 2004. With the assistance of the learned counsel for the parties, I have seen the observations of the learned trial Court in para 4 of the judgment. It is observed by him in para 4 that "Even Advocate for the applicant filed his no instruction Purshis on behalf of the applicant on 1/11/2005 and even then the applicant remained absent before the Court for no reasons." It is further observed by the learned Judge that the applicant has not attended the Court at all from 2004 till the date of judgment which was passed on 14th June, 2006. Learned Judge concluding that no just and sufficient explanation is tendered for delay, rejected the application. 7. Learned counsel for the Respondent No.1 submits that section 30 of the said Act is 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. relevant i.e. efficacious remedy is made available. It is not possible to accede to the submissions of learned counsel for the Respondent No.1. Section 30 of the said Act provides appeal to the High Court from the orders of Commissioner which are enumerated under that section. Section 30 (1) has further given eventualities mentioned in (q) (aa) (b) (c) (d) (e). Thus, all orders passed by the learned Commissioner for Workmens Compensation under the provisions of the said Act have not been made appellable. Subsection (2) of section 30 provides limitation of 60 days and subsection (3) makes available section 5 of the Limitation Act for seeking condonation of delay. Proviso of section 30 (1) makes it clear that such appeal shall be considered by the Court i.e. High Court if substantial question of law is involved. In the case on hand, we are concerned only to find out as to whether any 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. remedy for rejection of delay condonation application i.e. delay occurred in filing application for setting aside the exparte Award, is made available under section 30. There is no appeal provided under section 30 for such eventuality. This is the reason why I am not in agreement with the submission of learned counsel for Respondent No.1 that section 30 of the Act makes available efficacious remedy. 8. Counsel for Respondent No.1 then relied on a judgment of Allahabad High Court in the matter of "Chandra Shekhar Azad University of Agriculture and Technology, Kanpur Nagar and Workmen Compensation Commissioner and another" reported in [2002 (94) FLR 1227]. Counsel fairly concedes that in the reported judgment, it was an appeal filed by the employer challenging the Award passed by the learned Commissioner for Workmens Compensation. Facts are altogether 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. different. Ratio does not apply to the facts obtaining in the case on hand. 9. In the case on hand, in my view, this Court can interfere under its extraordinary jurisdiction under Article 226 and 227 of the Constitution. Indisputably, learned Judge, while rejecting the application for condonation of delay and appeal has observed that the earlier counsel appearing for the present Petitioner in application No.41 of 2004 did file no instructions Purshis. He further observed that Petitioner/ applicant also did not remain present. In fact, it was for the learned Judge, the moment no instructions purshis is filed by the Advocate appearing for any of the party, in a proceeding, to issue notice to the litigant himself informing that his lawyer has filed no instructions Purshis. In other words, litigant concerned ought to have been informed of the fact of filing no 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. instructions Purshis by his Advocate and must have been called upon to remain present before the Court or engage another lawyer of his choice. This course is not adopted by the learned Judge and he proceeded to pass the exparte judgment and Award. On this background, the petitioner, who filed the application for condonation of delay of 5 months and 6 days delay, on the ground that the moment he came to know the delivery of judgment and Award, he filed the application for setting aside and for that purpose delay of 5 months and 6 days be condoned out to have been allowed. In my view, order impugned is perverse, requires to be quashed and set aside. Delay occurred in moving the Court needs to be condoned. In the case on hand, while exercising such powers I am also taking into account the status of the original applicant, who moved the Court under section 3 and 4 of the said Act for 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. compensation of her deceased husband. Some costs needs to be awarded to the Respondent No.1. 10. Writ petition is allowed. Order impugned is quashed and set aside. Delay occurred stands condoned on the condition that the applicant shall make the payment of Rs.2,000/- payable to the Respondent No.1 Nirmalabai. This amount to be deposited in the trial Court on or before 17th March, 2010. The Respondent No.1 is permitted to make appropriate application seeking withdrawal of the amount from the trial Court. If this amount is not deposited within the stipulated period, as above, the writ petition shall be treated as dismissed. 11. The learned Judge, on receipt of the amount, shall proceed with hearing of the application i.e. by quashing and setting aside the ex-parte Award, in accordance with the provisions of law. He shall decide and 11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. dispose of the said application within a period of two months from 17th March, 2010. Parties shall appear before the learned Judge, Labour Court on 17th March, 2010. The main proceeding is under section 3 and 4 of the said Act. Learned Judge shall decide the said application expeditiously and as far as possible within three months from the date of restoration of the main application, after setting aside the exparte Award. 12. Authentic copy of this order is permitted to the requesting parties, as per usual procedure. [S.B.DESHMUKH, J.] Dated:02/03/2010. ans/1543