HEERA LAL VS. SMT. SANTOSH & ORS. (S.B.CIVIL WRIT PETITION NO. 2757/06) 1 HEERA LAL VS. SMT. SANTOSH & ORS. (S.B.CIVIL WRIT PETITION NO. 2757/06) Dated: 10.7.09. HON'BLE MR.JUSTICE SANGEET LODHA Mr.S. Saruparia, for the petitioner. None present for the respondents no. 1 to 4 & 7. Mr. Vikram Choudhary, for respondent no.6. 1. This writ petition is directed against order dated 27.1.05 passed by the Workman Compensation Commissioner, Chittorgarh in Workman Compensation Case No. 23/01, whereby an application preferred by petitioner-non claimant under Order 9 Rule XIII read with Section 151 CPC for setting aside the ex parte award , stands dismissed. 2. The claimants-respondent nos. 1 to 4 filed the claim petition before the Workman Compensation Commissioner, Chittorgarh u/s 22 of the Workmen's Compensation Act, 1923( in short “the Act of 1923” hereinafter) claiming compensation on account of death of their husband/father in course of his employment with the petitioner-non claimant. The petitioner-non claimant did not appear despite service therefore, the matter was proceeded ex parte against him vide order dated 14.12.02 passed by the Workman Compensation Commissioner. 3. After consideration of the evidence on record, the HEERA LAL VS. SMT. SANTOSH & ORS. (S.B.CIVIL WRIT PETITION NO. 2757/06) 2 Commissioner found the petitioner-non claimant liable to pay compensation and accordingly, passed an award dated 29.10.04 in favour of the claimants-respondents no. 1 to 4 for payment of compensation quantified at Rs.1,65,919/- and penalty a sum of Rs.33,184/- with interest @ 9% on the amount of compensation from the date of filing of the claim petition i.e. 4.7.01. 4. The petitioner-non claimant preferred an application for setting aside the ex parte award under Order 9 Rule XIII read with Section 151 CPC stating therein that the notices were never served upon him and he had no knowledge about the pendency of the proceedings before the Commissioner. It was stated that the petitioner came to know about the passing of the award against him on 21.12.04 when the notice for recovery of the amount of compensation was sought to be served upon him. 5. It appears that no notice on application for setting aside ex parte award was issued by the Commissioner to the claimants- respondents no. 1 to 4 and straight away rejected the application for setting aside holding that the notices were duly served upon the petitioner-non claimant by registered post and it will not be appropriate to set aside the ex parte award, keeping in view the fact that the claimants are widow and her minor children. 6. Admittedly, no notice was issued by the Commissioner to HEERA LAL VS. SMT. SANTOSH & ORS. (S.B.CIVIL WRIT PETITION NO. 2757/06) 3 respondents-claimants on application preferred by the petitioner- non claimant for setting aside ex parte award and the averments made in application remained uncontroverted. A perusal of order sheets placed on record show that there were no directions to get the petitioner-non claimant served by registered post. Thus, on the facts and in the circumstances of the case, in considered opinion of this court, it would have been appropriate for the Workman Compensation Commissioner to issue notice to the claimants-respondents of the application preferred on behalf of the petitioner-non claimant for setting aside ex parte award and the application should have been decided after giving an opportunity of hearing to the claimants-respondents no. 1 to 4. 7. Since, the claimants-respondents no. 1 to 4 have not put in appearance before this court despite service and the application for setting aside the ex parte award was rejected without notice to them therefore, it will not be appropriate for this court to consider the matter for setting aside the ex parte award. However, the order rejecting the application for setting aside the ex parte award passed by the Workman Compensation Commissioner is not sustainable in eye of law and the matter deserves to be remanded to Workman Compensation Commissioner for consideration of the application afresh after giving an opportunity of hearing to the claimants-respondents HEERA LAL VS. SMT. SANTOSH & ORS. (S.B.CIVIL WRIT PETITION NO. 2757/06) 4 no. 1 to 4. 8. In the result, the writ petition succeeds, it is hereby allowed. The order dated 27.1.05 passed by the Workman Compensation Commissioner, Chittorgarh is set aside. The matter is remanded to the Workman Compensation Commissioner, Chittogarh with the directions to decide the application for setting aside ex parte award afresh after giving an opportunity of hearing to the claimants-respondents no. 1 to 4. The petitioner shall appear before the Workman Compensation Commissioner , Chittorgarh on 17th August,09. No order as to costs. (SANGEET LODHA),J. Aditya/-