Kehar Singh Vs. Durjan Singh Gond - Court Judgment

HIGH COURT OF MADHYA PRADESH : AT JABALPUR Writ Petition No :

9409. of 2012 Kehar Singh - V/s - Durjan Singh Gond Present : Hon’ble Shri Justice Rajendra Menon.

-------------------------------------------------------------------------------------- Shri Sanjay Verma, counsel for the petitioner.

None for the respondent.

-------------------------------------------------------------------------------------- Whether approved for reporting: Yes / No.ORDER

16/07/2012 Challenging an interlocutory order passed by the Commissioner for Workmen Compensation, directing the petitioner to deposit 50% of the compensation awarded for considering an application submitted for setting aside an ex-parte award, petitioner has approached this Court.

2- Records indicate that due to certain injuries sustained respondent filed an application before the Commissioner for Workmen Compensation-cum-Labour Court, Narsinghpur and an ex-parte award has been passed.

Seeking setting aside of the ex-parte award, an application under Order IX Rule 13 of the Code of Civil Procedure has been filed and in the said application the Commissioner, Workmen Compensation-cum-Labour Court has passed an order directing the petitioner to deposit 50% of the amount awarded as a pre-condition for hearing of the application.3. Interalia contending that under Order IX Rule 13 CPC, a Court is not empowered to direct for any deposit before deciding the application on merits and pointing out that such a direction can be given only after final order is passed on the application under Order IX Rule 13, this writ petition is filed challenging the impugned action.

4- Having heard learned counsel for the petitioner and on a perusal of the records, it is clear that the proceedings in this case are being held in accordance to the Employees Compensation Act, 1923 and the Rules framed therein i.e… the Workmen Compensation Rules, 1924, the procedure for deciding an application for compensation is contemplated in Part V from Rule 19 onwards.

A perusal of these Rules indicates that all the provisions of the CPC are not applicable and the learned Commissioner for Workmen Compensation is required to conduct the proceeding as per the statutory rules framed under the Act.

Except for certain provisions of the CPC as are contained in Rule 41, the strict rules of the CPC are not applicable.

Even with regard to applicability of the provisions of the CPC as contemplated under Rule 41, the proviso thereof gives a power to the Commissioner to make such alterations as may be necessary for proceeding in the matter in accordance with law.

Rule 41 and its proviso reads as under: “41.

Certain provisions of Code of Civil Procedure, 1908 to apply – Save as otherwise expressly provided in the Act or these Rules, the following provisions of the FiRs.Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rule 9 to 13 and 15 to 30: Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 and 2, shall apply to proceeding before CommissioneRs.in so far as they may be applicable thereto: Provided that – (a) for the purpose of facilitating the application of the said provisions the Commissioner may 3 construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him.

(b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interests of the parties will not thereby be prejudiced.”

(Emphasis supplied) 5- Even though by virtue of Rule 41, the provisions of Order IX Rule 13 CPC has been made applicable to a proceeding, but in the light of the proviso to Rule 41 of the Workmen Compensation Rules, 1924, as discretion is given to the Commissioner to construe and to make alteration without affecting the substance of a procedure, I am of the considered view that the discretion exercised by the learned Commissioner in directing for payment of 50% of the amount cannot be termed as illegal or erroneous to such an extent that interference at this interlocutory stage in a proceeding under Article 227 of the Constitution is called for.

6- The proviso clearly mandates that for facilitating decision on an application, the Commissioner can adopt such procedure and if such a procedure is fair and reasonable, interference into the matter is not called for.

In the present case, except for contending that the order for deposit has been made even before the application under Order IX Rule 13 is not decided and the same is not permissible under the said provision.

Nothing is brought to the notice of this Court to indicate as to how and on what basis the discretion exercised by the learned Commissioner can be termed as arbitrary or unreasonable warranting interference in the matter at this interlocutory stage.

Even no financial or other constraint on the part of the petitioner is pointed out at the time of hearing in this regard.7. In this regard the Rajasthan High Court also in the case of Uttam Chand Gangwal versus Commissioner, WCC Act, Ajmer, III(2008) ACC 562.has held that while applying the principles of the Code of Civil Procedure to Workmen Compensation, Commissioner may proceed otherwise than in accordance to the said provision, if the interest of the parties are not prejudiced.

In the present case, the petitioner has not demonstrated before this Court as to how prejudice is caused to him because of the discretion exercised by the learned Commissioner in the manner indicated.

8- Except for contending that the learned Commissioner has proceeded in excess of the powers conferred upon him under Order IX Rule 13 of the Code of Civil Procedure, no other ground is canvassed at the time of hearing and even in the memorandum of the petition, this is the only ground taken.

9- Accordingly, finding no ground to interference into the matter on the grounds raised, the petition is dismissed.

( RAJENDRA MENo.) JUDGE Aks/-