IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 14248 of 2009(A) -------------------------------------- PETITIONER(S): ----------------------- A.V.VARGHESE, ATHIKUZHI, MAYILAMBADY P.O., MEENANGADI VIA, WAYANAD. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): -------------------------- 1. N.K.KUMARAN, S/O.LATE KUTTAN, NADANCHERY HOUSE, NADAKKARA, NENMANI P.O., SULTHAN BATHERY. 2. N.P.MOHANAN, TODDY SHOP CONTRACTOR, VAZHAVATTA, WAYANAD. 3. KOTTAPPALLY NARAYANAN, ANIVAYAL P.O. 4. PEETHAMBARAN P.K., VENICHIRA P.O. 5. A.V.PHILIP, S/O.ULAHANNAN, ALAMOLASSERY HOUSE, KOTTAKUNNU, S.BATHERY P.O. 6. LAKSHMI, W/O.NARAYANAN, KOTTAPPALLY HOUSE, ARIVAYAL P.O. 7. VIJAYAN, S/O.NARAYANAN, KEETHAPALLY HOUSE, ARIVAYAL P.O. 8. SREEDHARAN, KEETHAPALLY HOUSE, ARIVAYAL P.O. 9. MOHANAN, KEETHAPALLY HOUSE, ARIVAYAL P.O 10. REMANAN, KEETHAPALLY HOUSE, ARIVAYAL P.O. 11. MURALI, KEETHAPALLY HOUSE, ARIVAYAL P.O. 12. THE WORKMEN'S COMPENSATION COMMISSIONER AND DEPUTY LABOUR COMMISSIONER, KANNUR. R1 BY ADV. SMT.M.P.MARY BY GOVT. PLEADER SRI.P.M.MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO. 14248/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 26.4.2008 ISSUED BY THE 12TH RESPONDENT. P2:- COPY OF THE APPLICATION DTD. 13.10.2008 FOR SETTING ASIDE THE EXPARTE ORDER. P3:- COPY OF THE APPLICATION FOR CONDONATION OF DELAY IN FILING EXT.P2. P4:- COPY OF THE ORDER DT. 16.1.0 OF THE WORKMEN'S COMPENSATION COMMISSIONER. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE LETTER NO.K4/SUBA-8/86-87 DTD. 17.11.2007 OF THE WELFARE FUND INSPECTOR, KOZHIKODE. R1(b):- COPY OF THE REPORT NO.K1/KKD. 2341/09/3655 DT.D 24.10.2009 OF THE WELFARE FUND INSPECTOR , KOZHIKODE. R1(c):- COPY OF THE LETTER NO.B 483/09 DTD. 6.6.2011 FROM THE COMMISSIONER, WORKMEN'S COMPENSATION , KANNUR. TRUE COPY P.A. TO JUDGE tss4 P.N.RAVINDRAN, J. -------------------------------------------- WP (C) No. 14248 of 2009 --------------------------------------------- Dated this the 10th day of August, 2011 JUDGMENT Ext.P4 order passed by the Court of the Commissioner for Workmen’s Compensation, Kannur in W.C.Case No. 127 of 1991 is under challenge in this writ petition. The brief facts of the case are as follows: 2. The first respondent herein filed an application before the Court of the Commissioner for Workmen's Compensation, Kozhikkode seeking payment of compensation for the injuries sustained by him in the course of employment as a toddy tapper under opposite parties 1 to 11 in the said application. The said application was later transferred to the Court of the Commissioner for Workmen’s Compensation, Kannur. By Ext.P1 order passed on 26.4.2008 the Court of the Commissioner for Workmen's Compensation awarded the sum of Rs.47,940 as compensation to the first respondent and directed the petitioner herein, who was joined as opposite party No.4, to pay the said amount of compensation with interest at 12% per annum from the date of the accident together with costs Rs.2,000/-. 3. The case set out by petitioner herein is that he had not WP (C) No. 14248 of 2009 2 received any notice in W.C.Case No. 127 of 1996 and that he became aware of the proceedings instituted by the first respondent only when a copy of Ext.P1 order was served on him in the address given in the writ petition after it was redirected by the postal authorities. It is stated that after a copy of Ext.P1 order was served on the petitioner on 6.10.2008, he immediately filed Exts.P2 and P3 applications dated 13.10.2008, the former to set aside the exparte order and the latter to condone the delay of five months and seventeen days in filing the former application. By Ext.P4 order which is impugned in this writ petition, the Court of the Commissioner for Workmen's Compensation dismissed the applications on the ground that the Commissioner for Workmen's Compensation is not empowered to review his own orders and can correct only clerical or arithmetical mistakes arising from any accidental slip or omission. Hence this writ petition, challenging Ext.P4 and seeking a direction to the Court of the Commissioner for Workmen's Compensation to consider Exts.P2 and P3 applications and pass orders thereon on the merits. It is contended that the Commissioner for Workmen's Compensation WP (C) No. 14248 of 2009 3 is empowered under rule 41 of the Workmen's Compensation Rules, 1924 to exercise the powers of the civil court under Order IX and therefore, the statement in Ext.P4 order that the Commissioner for Workmen's Compensation does not have the power to set aside an exparte order for the reason that he has no power of review, cannot be sustained. The petitioner also relies on the decision of a learned single Judge of this Court in O.P. No14159 of 1996 in support of his contention that under rule 41 an application to set aside an order passed exparte is maintainable. 4. The first respondent, who is the principal contesting respondent has been served. He has also sworn to a counter affidavit wherein it is contended that the Commissioner for Workmen's Compensation did not commit any mistake, that the address given by the petitioner to the Welfare Fund Inspector, Kozhikkode was the address given in Ext.P1 order, that the petitioner purposefully gave a false address to avoid being proceeded against for realization of compensation by his employees, that steps were taken on a number of occasions to serve notice on the petitioner by post, but such attempts were WP (C) No. 14248 of 2009 4 unsuccessful, that thereupon the notice was published in the ‘Pradeepam’ daily dated 16.11.2005 and 6.3.2008, that even thereafter the petitioner did not enter appearance and therefore the Commissioner for Workmen's Compensation set him exparte. The first respondent has also raised various other contentions including the contention that the remedy of the petitioner if he is aggrieved by Ext.P1 is to challenge the same in appeal and therefore, as the petitioner has an alternate remedy, the writ petition is liable to be dismissed. 5. When this writ petition came up for hearing on 25.7.2011, after hearing the learned counsel on both sides it was felt that the records leading to Ext.P4 should be called for. I accordingly directed the Court of the Commissioner for Workmen's Compensation, Kannur to make available the files leading to Ext.P4 order through the learned Government Pleader. The files were accordingly produced by him today. The learned Government Pleader after going through the files submitted that the files do not contain an application for review and that it contains the originals of Exts.P2 and P3 applications filed by the petitioner to set aside Ext.P1 order passed exparte WP (C) No. 14248 of 2009 5 after condoning the delay in filing the said application. I have also perused the files. The original of Ext.P3 application is at pages 311 to 315. The prayer therein is to condone the delay of 517 days in filing the application to set aside the exparte order passed on 26.4.2008. The original of Ext.P2 is at pages 351 to 355 thereof. The prayer therein is to set aside the exparte order passed on 26.4.2008. Apart from the said applications, no application seeking a review of Ext.P1 order is available in the files. The Court of the Commissioner for Workmen's Compensation however rejected the applications on the ground that under rule 32(2) of the Workmen's Compensation Rules, 1924 he is not empowered to review his own orders and can correct only clerical errors. 6. In O.P.No. 14159 of 1996, after analyzing rules 32 and 40 (1) of the Workmen's Compensation Rules 1924, Justice J.B.Koshy (as his lordship then was) held as follows: “1..... In this case, Ext.P1 judgment was passed exparte and petition under rule 41 read with connected provisions under the Code of Civil Procedure was filed before the Commissioner. This was rejected because of the provisions in rule 32. WP (C) No. 14248 of 2009 6 2. It is argued by the learned counsel for the respondent that after passing the judgment if the petitioner is aggrieved his remedy was to file an appeal under Section 30 of the Workmen's Compensation Act. To avoid deposits, he chosen this method and in view of rule 32 Commissioner was right in not interfering with the matter. 3. It is true that under rule 32 Commissioner cannot review the order already passed. In view of rule 41, I am of opinion that if the judgment is passed as exparte, Commissioner has got power to set aside the above if he is satisfied that there are reasons for setting aside the exparte order. Learned counsel for the respondent also emphasized the effect of the proviso to rule 41 and also submitted that even if there are no grounds for setting aside the exparte order in this case, under rule 41, Commissioner has got power to set aside exparte order. In paragraph 5 of counter affidavit, he details the delay and latches on the part of the petitioner in not prosecuting the case and delaying the matter. Whether the petitioner has got sufficient grounds for setting aside the exparte order is a matter for the Commissioner to look into. But, the Commissioner has got power to set aside an exparte order if he is satisfied that the reasons stated by the party are correct. Therefore, Ext.P2 application for setting aside the exparte order has to be considered by the Commissioner on merit. Therefore, I set aside Ext.P3 order and direct the Commissioner to consider Ext.P2 WP (C) No. 14248 of 2009 7 application on merit”. 7. I am in respectful agreement with the opinion of the learned single Judge in O.P.No.14159 of 1996. It is evident from a reading of Ext.P4 order that the Commissioner for Workmen's Compensation treated the applications filed by the petitioner as applications to review his own order. The Commissioner for Workmen's Compensation thereby misdirected himself when he passed the impugned order. As held by this Court in O.P.No.14159 of 1996, rule 41 of the Workmen's Compensation Rules, 1924 empowers the Commissioner for Workmen's Compensation to set aside the order passed exparte if the person against whom the exparte order has been passed makes out sufficient grounds for setting aside the exparte order. It is evident from the materials on record and the files leading to Ext.P4 that the Commissioner for Workmen's Compensation has not considered the application submitted by the petitioner to set aside the exparte order by treating it as an application filed under rule 41 of the Workmen's Compensation Rules, 1924. Necessarily therefore, it has to be held that Ext.P4 order cannot be sustained. WP (C) No. 14248 of 2009 8 In the result I allow the writ petition, set aside Ext.P4 and direct the Court of the Commissioner for Workmen's Compensation, Kannur to pass orders on Exts.P2 and P3 applications, expeditiously and in any event within two months from the date on which either the petitioner or the first respondent produces a certified copy of this judgment before him. Till such time as orders are passed on Exts.P2 and P3 applications, recovery proceedings pursuant to Ext.P1 order shall be kept in abeyance. I make it clear that I have not expressed any opinion on the merits of the rival contentions and that it is for the Commissioner for Workmen's Compensation to decide whether having regard to the pleadings and the materials on record, Ext.P1 order is liable to be set aside as prayed for by the petitioner. P.N.RAVINDRAN, JUDGE. rkc