IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 13TH JUNE 2007 / 23RD JYAISHTA 1929 MFA.No. 65 of 2005() -------------------- WCC.35/2002 of W.C.C.,ERNAKULAM .................... APPELLANT: ----------- ALIBABA, PROPRIETOR, WOOD TECH, MUDALIYARBHAGAM, KOCHI-5. BY ADV. SRI.T.I.DANIEL SRI.DILIP MOHAN RESPONDENTS: ------------- 1. THE COMMISSIONER, WORKMENS COMPENSATION, COLLECTORATE BUILDING, KAKKANAD. 2. M.G.ANTONY, S/O.M.A.GEORGE, MAKKINIKKATTU HOUSE, KUMBALANGI, ERNAKULAM. BY GOVERNMENT PLEADER SRI.B.N.SHIVSANKAR SRI.JOSE TOM C. KANDATHIL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR . J. ------------------------------------------ M.F.A No.65 of 2005 ----------------------------------------- Dated this the 13th day of June 2007 JUDGMENT The opposite party in W.C.C 35 of 2002 on the file of the Commissioner for Workmen's Compensation ( Deputy Labour Commissioner) Ernakulam is the appellant in this M.F.A. The 2nd respondent in W.C.C 35/2002. Sri. Antony M.G. filed application under Section 22 of the Workmen's Compensation Act claiming compensation alleging that he sustained employment injuries. It was averred that he was employed in the appellant's establishment and he sustained injuries during the course of his employment. It was averred that due to the accident two of his fingers were lost. The appellant appeared and filed an objection contending that the 2nd respondent was not his employee. It was contended that till September 1992 the appellant was working in a gulf country and came back to India on 11-9-1992. Thereafter he started a workshop for wood works According to him the 2nd respondent was a freelance carpenter and he approached the appellant seeking some space for doing his own work. According to the appellant he allowed the 2nd respondent to make furniture on payment of rent. The appellant was doing his own work. The fact that the respondent met with accident on 8-6-2001 was admitted. The 2nd respondent filed rejoinder reiterating his contention that since 1996 he was working as a supervisor M.F.A. No.65 of 2005 -2- and doing other works for the appellant. The 2nd respondent gave evidence as AW1.Ext.A1 & A2 were proved and marked. . Two witnesses were examined as AW2 & AW3 on the side of the respondent. The appellant did not appear and cross-examine the witnesses of the 2nd respondent. He also did not adduce any evidence. So the Deputy Labour Commissioner passed an order in the absence of the appellant. Challenging that order this M.F.A. is filed. . It is an admitted fact that the 2nd respondent appeared in person and he had not engaged a lawyer of his choice. The specific case put forward by the appellant was that the 2nd respondent was not his employee. When the appellant filed objection the 2nd respondent herein filed an application for amendment and he had filed a rejoinder also. According to the appellant after receiving his objection he was informed by the Commissioner that the case will be posted for evidence and he will be informed about the next posting date of the case. But he did not receive any notice and hence failed to appear. I do not propose to probe further into the matter, but considering the nature of the contentions raised I am of the view that it is only just and proper that the appellant be given an opportunity to contest the matter by cross-examining AW1 to AW3 and also to adduce evidence. For that purpose the case has to go back . M.F.A. No.65 of 2005 -3- In the result, the M.F.A is allowed. The order passed by the Deputy Labour Commissioner on 24-3-2003 allowing the claim petition of the 2nd respondent in this M.F.A is hereby set aside. Deputy Labour Commissioner is directed to take W.C.C. 35/2002 back to file and dispose of same afresh after giving reasonable opportunity to both sides to adduce evidence. In case a request made by the appellant to cross- examine AW1 to AW3 the same shall be considered by the Deputy Labour Commissioner and dispose of in accordance with law. I also make it clear that it is open to the parties to amend the pleadings to adduce further evidence if so advised. The parties shall appear before the Workmen's Compensation Court on 17th July 2007. sd/- K.PADMANABHAN NAIR,JUDGE es