IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.04.2010 CORAM THE HONOURABLE Mrs.JUSTICE R.BANUMATHI AND THE HONOURABLE Mr.JUSTICE M.VENUGOPAL W.A.No.2505 of 2001 Kolandhayee ..Appellant/2nd Respondent vs. 1.The Deputy Commissioner of Labour (Commissioner for Workmen's Compensation Act), Tiruchirapalli – 20. 2.The Management of Deccan Sugars (Division of Nava Bharat Ferror Alloys Limited), Pugalur Sugar Factory Post, Pin – 639 113. Tiruchirapalli District. .. Respondents/Petitioners/ 1st Respondent Writ Appeal filed under Clause 15 of the Letters Patent Act to set aside the order dated 18.02.2000 made in W.P.No.19515 of 1992 and to dismiss the Writ petition. WP.19515/92: This Writ petition filed Under Article 226 of the Constitution of India praying to issue a writ in the nature of a writ of certiorari or other appropriate writ or directions, call for the records from the file of the 1st respondent herein in W.C.I.A.No.25/1991 and quash the order passed therein dated.26th day of May 1992. For Appellant : Mr.P.V.Bakthavachalam For Respondent 1 : Mr.A.Arumugam Special Govt. Pleader For Respondent 2 : Mr.S.Ravindharan for M/s.T.S.Gopalan & Co. https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T Judgment of the Court was delivered by M.Venugopal, J. The Appellant/2nd Respondent has filed this Writ Appeal as against the order of the Learned Single Judge dated 18.02.2000 in W.P.No.19515 of 1992. 2.The Learned Single Judge, while passing orders in the Writ Petition filed by the Appellant/2nd Respondent has inter alia observed that 'there is no provision in the Act to entertain such an application. The order of the Authority is far in excess of its jurisdiction. The Authority having some quasi judicial functions should exercise it judicially. The order passed by the 1st Respondent cannot be sustained on any ground. There are errors apparent on the face of records, etc. and resultantly, allowed the Writ petition without costs.' 3.According to the Learned counsel for the Appellant/2nd Respondent, the Appellant's husband died while at work and the Learned Single Judge wrongly assumed that there was no application filed for condonation of delay, but the candid fact was that the Appellant indeed filed a set aside application within 30 days on 19.08.1991, since I.A.No.6 of 1991 was dismissed for default only on 24.07.1991, there was no necessity for filing an application for condonation of delay in filing the restoration petition W.C.I.A.No.25 of 1991. 4.It is the further contention of the Learned counsel for the Appellant/2nd Respondent that the Learned Single Judge had not appreciated the fact that the 1st Respondent/Authority had passed a valid and considered order in W.C.I.A.No.25 of 1991 and there was no necessity to interfere with the same inasmuch as the claim was to be decided on merits and therefore, prays for allowing the Writ appeal in the interests of justice. 5.In response, the Learned counsel for the 2nd Respondent/Petitioner/ Management supports the order the Learned Single Judge in allowing the Writ petition by setting aside the order passed by the 1st Respondent/Authority and prays that the said order may not be interfered with at this stage of the appeal. 6.The 2nd Respondent/Writ Petitioner in the Writ petition had taken a specific stand that the 1st Respondent/Authority had not assigned any reasons, much less acceptable reasons for setting aside the order passed in W.C.I.A.No.6 of 1991 on 24.07.1991 and restoring the W.C.No.101 of 1989 and in fact, the 1st Respondent/Authority had no jurisdiction to entertain I.A.No.25 of 1991 after dismissing https://hcservices.ecourts.gov.in/hcservices/ I.A.No.6 of 1991, which was filed by the Learned counsel for the Appellant/2nd Respondent on 18.04.1991. 7.The substance of the stand of the 2nd Respondent/Petitioner is that the 1st Respondent/Authority had no jurisdiction to pass orders to set aide the Ex-parte Order and also restoring the application which was dismissed for default and the suit does not contemplate such a position and in fact, the Appellant/ 2nd Respondent had not filed any application for condonation of delay in projecting the application to set aide the Ex-parte Order and in the absence of such an application, the 1st Respondent/Authority ought not to have entertained the subsequent application. 8.Also, it is the plea of the 2nd Respondent/Management that the accident took place in the year 1977 and the application claiming compensation was filed in the year 1989, after a huge delay of 12 years and there was no acceptable reasons furnished on the side of the Appellant/2nd Respondent to condone the same and this would point out that the Appellant/2nd Respondent was never diligent and pursuing the remedy of claiming the compensation. 9.It is to be noted that the Appellant/2nd Respondent filed I.A.No.25 of 1991 before the 1st Respondent/Authority only on 19.08.1991 (after the dismissal of I.A.No.6 of 1991) filed for restoration of appeal viz., W.C.No.101 of 1989, which was dismissed for default on 18.03.1991. In reality, the said application was filed after a gap of 5 months. 10.That apart, the order of the 1st Respondent/Authority dated 26.05.1992 in allowing the I.A.No.25 of 1991 filed by the Appellant/2nd Respondent was a non-speaking order and no satisfactory reasons were furnished to reject the contentions of the 2nd Respondent/Writ Petitioner/Management and therefore, the same was allowed to be set aside. 11.The stand of the Appellant/2nd Respondent in the Writ petition was that her husband was employed as a godown worker with the 2nd Respondent/Petitioner and in the course of his employment, he died on 23.03.1987 and this aspect could not be re-agitated since the same was earlier raised before this Court in W.P.No.3741 of 1990 and by an order dated 02.11.1990 in the aforesaid Writ petition, a clear finding was given by this Court in favour of the Appellant/2nd Respondent. 12.Continuing further, it is the stand of the Appellant/2nd Respondent that the application, oral evidence and the order of the 1st Respondent/Authority dated 26.05.1991 unerringly pointed out her non-appearance and her counsel's absence were bonafide and therefore, she was entitled to contest the matter, since she being an illiterate person, as per finding rendered by the 1st https://hcservices.ecourts.gov.in/hcservices/ Respondent/Authority. 13.At this juncture, it is useful for this Court to refer to the I.A.No.25 of 1991 filed by the Appellant/2nd Respondent wherein she had among other things stated that she was suffering from illness and not able to move and appear before the 1st Respondent/Authority on the previous hearing dates on 11.12.1990, 08.01.1991 and finally, it was posted to 18.03.1991. Moreover, her counsel suffered a heart-attack and he was admitted into the hospital for the last few months and therefore, could not made other arrangements to represent the matter before the 1st Respondent/Authority and also that she was ill and could not appear on 18.03.1991 and as such I.A.No.25 of 1991 was dismissed for default on 18.03.1991. 14.As a matter of fact, though the Appellant/2nd Respondent could not contact her counsel, she informed about her illness and her inability to attend the Court on 18.03.1991 and her counsel filed an application to set aside the Ex-parte Order and prayed for restoration of the same and to decide the case on merits on 18.04.1991 and the said application taken on filed as I.A.No.6 of 1991 and was posted to 20.05.1991 and adjourned to 28.05.1991 and finally to 24.07.1991. 15.Because of the fact that the Appellant/2nd Respondent was suffering from Jaundice and her counsel again suffered an Heart Attack both of them could not be present on 24.07.1991 and as such the I.A.No.6 of 1991 was dismissed for default and therefore, had prayed for restoration of I.A.No.6 of 1991 and W.C.No.101 of 1981 to file for deciding the same on merits. 16.The 2nd Respondent/Writ Petitioner in the counter had averred that numbering of the application inter-locutory as well as the present application were not at all maintainable and only option for the Appellant/2nd Respondent was to file an appeal as also that reasons adduced by the Appellant/2nd Respondent were not true and delay was not explained and indeed in the Writ petition filed by the Management, direction was issued to the 1st Respondent/Authority to dispose of W.C. application within four weeks and the time had already elapsed and therefore, no relief could be granted to the Appellant/2nd Respondent. Added further, in the absence of an application to set aside the dismissal of the inter-locutory application, there was no justification for the Appellant/2nd Respondent to file an application to set aside the Ex-parte Order passed on 18.03.1991. 17.On going through the order of the 1st Respondent/Authority in I.A.No.25 of 1991 dated 26.05.1992, we find that the 1st Respondent/Authority had clearly opined that the Appellant/2nd Respondent was an aged and illiterate person and further, if her https://hcservices.ecourts.gov.in/hcservices/ counsel had participated in the several hearings, then these types of dismissal orders would not have been passed. But in the present case, the Appellant/2nd Respondent had engaged another counsel who had conducted the case and examined the witnesses and accordingly, she had performed her part. In short, the 1st Respondent/Authority had found Appellant's illiteracy and her ignorance, where two factors which went against her. Further, the 1st Respondent/Authority had come to the conclusion that the Appellant/2nd Respondent version that she was afflicted with Jaundice and she took medicine and moreover, she had no adequate facility for medical treatment. 18.It is not out of place for this Court to make a significant mention that Section 23 of the Workmen's Compensation Act, 1923 invests the Commissioner with all the powers of the civil Court under the Code of Civil Procedure for the purpose of taking evidence on oath and enforcing the attendance of witnesses and compelling the production of documents and material objects. Relevant provisions of the Code of Civil Procedure are (a)Sections 27 to 32; (b)Order XI, Rules 12 to 18; (c)Order XVI; (d)Order XVIII, Rules 16, 17 and 19 (e)Further, Rule 41 of the Workmen's Compensation Rules enables the following provisions of First Schedule to the Code of Civil Procedure applicable to proceedings before the Commissioners, viz., those specified in Order V, Rules 9 to 13 and 15 to 30; (f)Order IX and Order XIII, Rules 3 to 10; (g)Order XVI, Rules 2 to 21; (h)Order XVII and Order XXIII, Rules 1 and 2. 19.We aptly point out that in Praveen Industries v. Banawal Singh 1990 ACJ 980, the facts were that the Workmen's Compensation Commissioner had allowed the workman's claim to compensation and the employer filed an application under Order 9, Rule 13 of the Civil Procedure Code to get the order of that Authority set aside on the basis that it was passed ex-parte. However, the Authority rejected that application and the employer preferred an appeal before the High Court under Order 43, Rule 1 of the Civil Procedure Code. The issue before the High Court was whether the appeal was maintainable. The contention was raised that since Order 9, Rules 9 to 13 made applicable, the aforesaid application as well as the appeal both were maintainable. But the said contention was partly rejected and it was observed by the High Court as follows: "As could be seen from Rule 41, only certain specified provisions of the Code of Civil Procedure are made applicable to the proceedings under Workmen's Compensation Act. Order 9 of Civil Procedure Code is one of them. Therefore, certainly an application for setting https://hcservices.ecourts.gov.in/hcservices/ aside an ex parte order could be filed under Order 9, Civil Procedure Code before the Workmen's Compensation Authority... An appeal under Order 43, Rule 1, Civil Procedure Code lies against an order made under Rule 13 of Order 9 in view of clause (d) of Order 43, Rule 7, Civil Procedure Code. But the said provision is not made applicable to the proceedings under the Workmen's Compensation Act under Rule 41 of the Workmen's Compensation Rules. Therefore, the appeal under Order 43, Rule 1, Civil Procedure Code is not maintainable." 20.Be that as it may, in fact, no appeal is maintainable under Section 30 the Workmen's Compensation Act, 1923 as against an order rejecting an application for recall of Ex parte Order as per decision Shravan Pal Singh v. Pooran Nath Goswami (1996) 2 LLN 980. 21.Admittedly, the provisions of the Evidence Act are not applicable before the Commissioner under the Workmen's Compensation Act which are summary in nature. 22.We also recall the observations made in Vinlab Export Pvt. Ltd. Nainital v. Karan Bahadur 2006 (110) FLR 416, 417 whereby and whereunder it is observed that 'under Section 5 of the Limitation Act, condonation of delay application, the workmen cannot be deprived of right to file claim petition on account of technicalities and there should be a liberal approach in condoning the delay and that the Tribunal's order in condoning the delay was not an erroneous one.' 23.In fact, Section 5 of the Limitation Act is applicable to the proceedings under Workmen's Compensation Act as per decision Premchand v. Workmen Compensation Commissioner and others (2001) LLR SUM 955 (ALLHC). 24.Though as per the Workmen's Compensation Act, the Commissioner does not possess the inherent powers of a civil Court conferred by a Code of Civil Procedure, but the principles of the said Section applies to quasi-judicial authorities like the Commissioner Workmen Compensation as per decision K.K.Aboo v. The Workmen's Compensation Commissioner 1977 ACJ 446 (Ker). 25.We also point out another decision Koli Mansukh Rana v. Patel Natha Ramji 1992 ACJ 772, 778 wherein at paragraph 17, it is observed thus: "17.Before parting with this judgment, it is difficult to resist the temptation of mentioning about the approach of the Learned Commissioner. Needless to mention that the proceedings before the Commissioner for Workmen's Compensation are proceedings not like before a civil court https://hcservices.ecourts.gov.in/hcservices/ and the strict principles of Civil Procedure Code and Evidence Act do not apply as they are applicable in civil proceedings before a civil court. The proceedings under the Act are distinct and stand on a different footing. Higher responsibility is cast on the Commissioner. For example, even under Section 10-A of the Act, the Commissioner is empowered to initiate suo motu inquiry about an employment accident or injury and to collect necessary information on receipt of intimation about such an accident from any source. Rules are also made under the Act. Therefore, the Commissioner is obliged to see that the rightful claim arising out of unfortunate employment injuries is not delayed or defeated on account of any such technicalities or procedures. The Learned Commissioner could have resorted to the provisions of section 12 of he Act. But unfortunately, though the Commissioner found that the applicant was a workman, did not award compensation on hypertechnical ground that it was not proved as to who was the employer. Could a workman who is legally entitled to compensation on account of such calamities arising out of employment injuries be left at the mercy of such technicalities? The Learned Commissioner, unfortunately, failed to address himself to the underlying design and desideratum of the provisions of the Act and the relevant rules. An illiterate and unsophisticated village labourer remains unpaid and was deprived of his rightful compensation for a long spell of nine years on the altar of technicalities. Be as it may." 26.In Management of Venkateswara Industries Chennai v. Deputy Commissioner Labour II, Chennai (2002) LLR 67 (MAD), it is held that 'interference by a High Court in setting aside an Ex-parte Order by the Compensation Commissioner will not be justified. 27.In Thangavel v. Saminathan and others 2004 LLR 126, this Court has held 'refusal of the Commissioner to set aside an Ex-parte Award on the ground that on an earlier occasion also the permission to set aside an Ex-parte Order was allowed and again it could not be allowed will not be tenable.' 28.In M.S.Grewal v. Deep Chand Sood 2001 (8) SCC 151, the Honourable Supreme Court has held hereunder: "Law Courts will lose their efficacy if they cannot possibly respond to the need of approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice." 29.In N.Balakrishnan v. M.Krishnamurthy 1998 S.C.F.B. and Rent C 427, it is held that law of limitation is founded in public policy https://hcservices.ecourts.gov.in/hcservices/ on the 'maxim of interest reipublicae up sit finis litium' i.e. for the general welfare, and observed thus: "The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bade cause would transform into a good cause." 30.In the decision Sakina Bibi v. Shipping Corporation of India 2006 (3) CLR 783 CAL : 2006(3) CHN417, it is held that 'refusal to condone the delay was not proper and in the interests of justice no justification to disbelieve the explanation of delay that on the assurance of employer she could not file a claim petition within limitation.' 31.The concept of 'every day's delay must be explained' does not mean that a pedantic approach should be made. Really speaking, it must be applied in a rational common sense and pragmatic manner. It is now a well accepted principle that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. After all, the end view is that an elastic approach of a Court of Law in a processual system of jurisprudence is to deliver even handed justice on merits in preference to the approach which stifles decision on merits. 32.On a careful consideration of respective parties and bearing in mind of an important fact that the Appellant/2nd Respondent is a illiterate and ignorant person and also considering the facts and circumstances of the case in an integral fashion on the basis of available materials on record, we are of the considered view that rules of procedure and the rules of limitation are not meant to destroy the right of parties and in the present case on hand, the 1st Respondent/Authority while allowing I.A.No.25 of 1991 by his order dated 26.05.1992 had exercised his discretion in proper and sound manner that too with a justice oriented approach and the said order does not suffer from any vice, arbitrariness or capriciousness and in fact, he had applied the design and desideratum of the provisions of the Workmen's Compensation Act, 1923 and the rules in a proper perspective, but these vital aspects were not taken note of by the Learned Single Judge while allowing the W.P.No.19515 of 1992 dated 18.02.2000 and in short, we are not in agreement with the observation made by the Learned Single Judge that the 1st Respondent/Authority had not applied his mind and there was wilful failure on his part to advert to the material circumstances and therefore, we are perforced to interfere with the said order of the Learned Single Judge and accordingly, allow this appeal by setting aside the order in W.P.No.19515 of 1992 dated 18.02.2000 to prevent aberration of justice. https://hcservices.ecourts.gov.in/hcservices/ 33.In the result, the Writ Appeal is allowed leaving the parties to bear their own costs. Resultantly, the order passed by the Learned Single Judge in W.P.No.19515 of 1992 dated 18.02.2000 is set aside. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gm To 1.The Deputy Commissioner of Labour (Commissioner for Workmen's Compensation Act), Tiruchirapalli – 20. + 1 CC to M/s.J.Saravana Vel,Advocate,SR.25251 + 1 CC to M/s.T.S.Gopalan & Co.,,Advocate,SR.25229 + 1 CC to Government Pleader,SR.25688 W.A.No.2505 of 2001 RJ(CO) EM/27.4.10 https://hcservices.ecourts.gov.in/hcservices/