IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4101 OF 2009 Pradip V. Sakhare and Another ...Petitioners Vs. Tukaram M. Patil and Another ... Respondents --- Shri S.S. Pakale h/h Shri Kirankumar Phakade for Petitioners Shri M.S. Topkar for Respondent No.1 Ms. Bhakti Barve i/b. Ms.Aarti Barve for Respondent No.2 ---- CORAM: V.M. KANADE J. DATED 17TH JULY, 2009 P.C. 1. Heard the learned Counsel for the Petitioners and the Respondents. 2. Rule. 3. Rule is made returnable forthwith by consent of parties. 4. The Petitioners are challenging the order passed by the Commissioner under the Workmen Compensation Act, 1926 in W.C.No. 15/B-7/2003. By the said order, the learned Commissioner was pleased to allow the said application filed by the Respondent No.1 herein and directed the Petitioners herein to pay an amount of Rs.4,50,440/- along with interest at the rate of 12% p.a. as compensation since 1.8.2002 till the whole amount is deposited. The Commissioner further directed the Petitioners herein to deposit Rs.2,00,000/- in the Court towards penalty to be paid to the Applicant. 5. The learned Counsel appearing for the Petitioners submits that an ex-parte order was passed by the Commissioner and as a result, the Petitioners were not in a position to prove that the relationship of employer and employee existed between the Petitioners and the Respondent No.1. He submitted that the Commissioner ought to have directed the Insurance Company to pay the said amount to that extent. The order passed by the Commissioner was required to be set aside. He submitted that the Petitioners did not wish to challenge the compensation which was awarded by the Commissioner. He, however, submitted that the penalty ought not have been imposed on the Petitioners herein. 6. The learned Counsel appearing on behalf of the Respondent No.2 Insurance Company submitted that in fact, the Petitioners had filed their written statement before the Commissioner and,therefore, it could not be said that the Petitioners was not given an opportunity to appear before the Commissioner. She submitted that the Learned Commissioner had observed in his order that the Petitioners were negligent and had not taken adequate steps to appear before him and, therefore, the application for setting aside the ex-parte order was rejected and application for condonation of delay was also not granted. She submitted that the Petitioners also had an alternate remedy of filing an appeal against the order of the Commissioner. 7. Shri Pakale, the learned Counsel appearing on behalf of the Petitioners, on the other hand, submitted that existence of an alternate remedy by itself would not be a bar for the purpose of filing a petition in this Court and in cases where there is violation of principles of natural justice, this Court would entertain the writ petition under Article 226 of the Constitution of India. In the present case, the Respondent No.1's son died in a road accident. It is an admitted position that he was on duty while the said accident took place. Application for claim of the compensation was filed before the Commissioner in time and notices were issued and served on the Petitioners as well as the Insurance Company in time. The Petitioners also had filed written statement to the said complaint. However, subsequently, they did not appear before the Commissioner. Under these circumstances, the Commissioner had no alternative but to allow the application. The Petitioners herein are having a grossery shop and Shri Pakale, the learned Counsel appearing on behalf of the Petitioners submitted that due to certain misunderstanding between the partners and also on account of their illeness, they did not appear before the Commissioner. Shri Pakale has fairely conceded that so far as the finding recorded by the Commissioner on the first two issues was not challenged by the Petitioners. The Commissioner had framed the following issues: (i) Whether the Applicant proves that deceased Dipak T. Patil died during and in the course of employment with Opponent No.1 and 2? ...Yes (ii) Whether Applicant is entitled for compensation as prayed for? ...Yes (iii) What order? ... No. He, however, submitted that the Commissioner ought to have framed a further issue as to whether the compensation is to be paid by the Petitioners or the Insurance company. He submitted that the Commissioner had not addressed himself on the said issue. 8. Perusal of the order, however, indicates that since the Petitioners did not appear before the Commissioner, the said issue has not been properly taken into consideration since the submissions of the Petitioners as raised by them in the written statement have not been taken into consideration. 9. In this view of the matter, in my view, it would be appropriate and in the interest of justice that the matter be remanded back to the Commissioner for the purpose of deciding the application as to who should pay the penalty and the compensation along with interest. By order dated 21st April, 2009, this Court had directed the Petitioners to deposit an amount of Rs. 3,00,000/- in this Court. Accordingly, the said amount has been deposited by the Petitioners in this Court on 22.4.2009. The Respondent No.1 was directed to withdraw the said amount unconditionally since the finding on Issue Nos.1 and 2 recorded by the Commissioner has not been challenged by the Petitioners herein. It is clarified that after the Commissioner decides as to who is liable to pay the compensation and in the event the Insurance Company is made liable to pay the compensation, the said amount may be adjusted and may be paid to the Petitioners herein. 10. The Writ Petition is allowed in the aforesaid terms and is disposed of. The recovery proceedings initiated accordingly, are set aside. V.M.KANADE J.