Pradeep Kant, J.
1. The petitioner being aggrieved by an order dated 1.2.2001 passed by the Workmen Compensation Commissioner, by virtue of which the ex parte order dated 6th March. 1999, has been set aside, has approached this Court under Article 226 of the Constitution of India.
2. The main thrust of challenge to the impugned order is as follows :
(i) The Workmen Compensation Commissioner under the provisions of the Workmen's Compensation Act, 1923, was having no power to set aside the ex parte order.
(ii) The only remedy available to the petitioner was to file an appeal under Section 30 of the Act and that too within the prescribed period.
(iii) There was neither any power to entertain the application for setting aside the ex parte order nor the benefit of Section 5 of Indian Limitation Act could be given to the petitioner as the said benefit in view of sub-section (3) of Section 30 is available to the appeals only.
(iv) In view of Section 23 which prescribes power or procedure of Commissioner, the provisions of the Civil Procedure Code in so far as they relate for the purpose of taking evidence on oath or enforcing the attendance of witnesses and compelling the production of documents and material object is concerned, was applicable and consequently Rule 41 which makes various other orders of the Code of Civil Procedure applicable in the proceedings before the Commissioner including Order IX of the Code is unconstitutional and ultra vires the Act, as it goes beyond the powers given in the Act, namely, Section 23. It may be clarified that thevirus of Rule 41 has not been challenged in the writ petition and there is no pleading to this effect but since it is a pure legal question, the learned counsel for the petitioner requested that this plea may be directed to be raised and this Court has granted permission to raise this plea.
(v) Under Rule 32. only clerical mistake should be correctedby the Commissioner.
3. The petitioner, who was working with M/s. Vijay Shri Chemicals (India) Limited, Kosi Kalan. Mathura, white on duty suffered acid burn injuries in which his right eye was seriously damaged, had claimed compensation under the provisions of Workmen's Compensation Act. An ex parte order was passed on 6.3.1999 awarding compensation to the amount of Rs. 88.401.60P along with 12% interest. In this proceeding admittedly the employer did not participate and they were absent. It appears that thereafter on 3rd May. 1999, a recovery certificate was sent by the Commissioner. Agra Region. Agra, to the Collector, Mathura for making recovery of the amount ordered to be paid to the petitioner.
4. It is the case of the respondents/employer that they did not have any knowledge of the proceedings which has taken place before the Commissioner and it was only on 11th August. 2000, when the Tehsildar contacted them for effecting the recovery, they came to know about such an order and immediately thereafter they moved an application for setting aside the ex parte order. The petitioner has not given the dale of filing the application. On this application, the parties appeared and a contest was put in by the petitioner on the ground that under Rule 32 only clerical and arithmetical error can be corrected in the judgment and that the application was time barred. Besides this, it was also stated that the facts stated in the application are not correct as the respondent No. 3was having full knowledge of theproceedings.
5. The Workmen Compensation Commissioner found that the notice was not served upon the respondents. While reaching on this finding, the Commissioner has noticed that the postman has made an endorsement on the registered envelop that despite repeated visits, nobody could be found in the factory. The Commissioner, therefore, held that there was no service upon the respondents and being convinced with the reasons advanced for setting aside the ex parte order, the Commissioner set aside the order on payment of Rs. 200 as costs.
6. It is no gain-saying andrepeating that endorsement to theeffect which had been made by thepostman in the instant case wouldnot mean service upon therespondents. If the respondent didnot meet, the question of knowledgeof the proceedings can neither beattributed to them nor it can bepresumed that respondent hasrefused to take notice nor the noticecould be said to have been served.The endorsement itself was sufficientto prove that without effecting serviceupon the respondents, theproceedings have been continued anddecided in favour of the petitioner.The view taken by the WorkmenCompensation Commissioner,therefore, does not suffer from anymanifest error while holding that therespondents were not served with thenotice.
7. So far as the argument of the learned counsel for the petitioner raising a challenge to the authority of the Commissioner to set aside ex parte order is concerned, it would be relevant to notice the scheme of the Act and the Rules. Section 3 of the Act deals with the employers' liability for compensation. Liability can only be fixed when an opportunity is given to the erring employer and not unilaterally. The amount of compensation, which is determined according to Section 4 of the Act also. would necessarily mean providing opportunity to the employer for the purpose along with the employee. Theapplication under the prescribed form under Section 22 of the Act is to be moved claiming compensation and the Commissioner appointed by the State Government shall consider the application and award compensation or reject the same, as the case may be. Under Section 23, the powers of the Commissioner regarding the procedure for dealing with the application have been provided. Against the order of the Commissioner an appeal has been provided under Section 30 of the Act providing sixty days period of limitation with further applicability of Section 5 of Indian Limitation Act in the matter of filing appeal. Section 32 of the Act gives the power to the State Government to make Rules which Rules can be framed for carrying out the purposes of this Act. Sub-section (2) of Section 32 further provides that in particular and without generality of the foregoing powers, such rules may provide for all or any of the following matters. Sub-clause (c) of Clause (2) of Section 32 reads as under :
'(c) for prescribing the procedure to be followed by Commissioners in the disposal of the cases under this Act and by the parties in such cases.'
8. In pursuance of the powers conferred by Section 32 of the Act. Workmen's Compensation Rules. 1924, have been framed. Rule 24 deals with the summary disposal of application and Rule 25 provides for preliminary enquiry into the application. In case an application claiming compensation is not rejected by the Commissioner under Rule 24 or 25 of the Rules, then notice to the opposite party has to be issued under Rule 26. Rule 26 lays down as under :
'Notice to opposite party.--If the Commissioner does not dismiss the application under Rule 24 or 25, he shall send to the party from whom the applicant claims relief (hereinafter referred to as the opposite party) a copy of the application together with a notice of the date on which he will dispose of the application, and may call upon the parties toproduce upon that date any evidence which they may wish to tender.'
9. On such notice being served,appearance is to be put in by theopposite party and the opposite partyis to be examined, as provided underRule 27. Then Rule 28 also prescribes for filing statement and for framing of issues. Rule 33 specifically deals withsummoning of witnesses and Rule 35deals with right of entry for localinspection. Rule 41 makes certainprovisions of the Code of CivilProcedure applicable in theproceedings before theCommissioner. This Rule specificallyembraces in itself Order IX of theCode of Civil Procedure. The provisoattached to Rule 41 gives power to theCommissioner that this provision asincorporated in Rule 41 may beconstrued by him with such alteration not affecting the substance as may benecessary and proper and to adoptthem to the matter before him for the purpose of facilitating the application of the said provisions. Thus, in theproceedings before the WorkmenCompensation Commissioner, theprovisions of the Code of CivilProcedure including Order IX havebeen statutorily made applicable witha further power to the Commissionerto construe them In accordance withsub-clause (a) of the proviso. Sub-clause (b) of the proviso further givespower to the Commissioner toproceed otherwise than in accordancewith such provision, if he is satisfiedthat interest of parties will notthereby be prejudiced for sufficientreasons. On a cumulative reading ofthe aforesaid provisions and lookingto the scheme of the Act and theRules, it is clear that when anapplication claiming compensation ismoved and if it is not dismissed underRule 24 or 25 of the Rules,mandatorily a notice has to be issuedunder Rule 26 to the opposite parties.For issuance of notice, the provisionsof Order V of the Code of CivilProcedure has been made applicable.The opportunity has to be given tothe employer on the opposite party,as their liability is to be fixed in thematter of alleged accident withrespect to a workman and the amountof compensation is also to be fixed and calculated in the manner prescribed under the Act. No liability can, be fixed in the absence of notice to the opposite party, as has been specifically provided in Rule 26. This Rule has been framed for carrying out the purpose of the Act and in furtherance to achieve its object effectively. It is not appreciable as to how Rule 41 runs contrary to the provisions of the Act or goes beyond the scope of any of the provisions of the Act including Section 23 of the Act. It is cardinal principle of law that no person can be condemned unheard and in consonance with the provisions of audi alteram partem, opportunity has to be given to the employer or opposite party against whom the compensation is being claimed for which substantive procedure has been prescribed by making provisions with certain provisions of the Code of Civil Procedure including Order V. Section 23 is enacted for limited purpose for carrying on the proceedings before the Commissioner giving him power to take evidence on oath, enforce the attendance of witnesses and compel the production of documents and other relevant material etc. This power has been given, as the Workmen Compensation Commissioner acts as quasi Judicial Tribunal in which evidence of witnesses and documents is required and in the absence of any such power which can compel production of evidence, documents and witnesses, it will be a toothless Tribunal which cannot render justice to any of the party. Rule 41 does not flow from Section 23 of the Act. It has been framed under Section 32 of the Act by the State under its powers of making Rules. The argument, therefore, that Rule 41 runs contrary to the substantive provisions of the Act is not at all sustainable and the same cannot be held to be ultra vires the Act.
10. The argument that under the Act there is no power to the Commissioner to set aside the ex parte order is completely bereft of any substance. If the power to pass an ex parte order is there, the power to set aside the ex parte order inherentlyvests with the authority concerned. If the authority is denuded with such power, it would encourage the claimants to manipulate the ex parts orders and thereafter leaving the unheard and unserved persons, namely, the opposite party only with the remedy of appeal under Section 30 of the Act in which the precondition for entertaining the appeal is to deposit the amount payable under the order. It would be the miscarriage of justice that opposite party, namely, the employer who has not been served with the notice of the proceedings is saddled with the liability to make the payment and his grievance can only be looked if he deposits the entire amount in appeal. Thus, the argument that the Commissioner was not having any authority to entertain an application for setting aside ex parte order can also not be sustained.
11. The next question that the respondents were having knowledge, as the recovery certificate was issued by the Commissioner, Agra on 3rd May. 1999 and, therefore, the application was not within time and the same ought to have been rejected by the authority concerned. It has not been brought on record before the labour court as well as in the writ petition that when the citation of demand was issued by the revenue authorities against the employer or that when the lehsil authorities initiated steps for making recovery in pursuance to the recovery certificate. The recovery certificate dated 3rd May. 1999 has been issued by the Commissioner. Agra. to the Collector, Mathura and it is Just possible that even after receiving the recovery certificate, the proceedings for recovery may have taken some time. There is no reason to disbelieve the finding recorded by the Workmen Compensation Commissioner in this regard. Even otherwise no material has been brought on record by the petitioner either before the Workmen Compensation Commissioner or before this Court so as to establish that the date of knowledge given by the respondents was not correct. Since the application has been moved immediately after knowledge of therecovery proceedings which in turn gave the knowledge of the ex parte order dated 6.3.1999, the question of applicability of Section 5 of the Indian Limitation Act is not of much relevance as an ex parte order can be requested to be set aside within thirty days from the date of knowledge in case the summons of the case are not served but if summons are served then the limitation starts from the date of order. Even if it is assumed that there was some delay in moving the application, the provisions of Section 5 of the Indian Limitation Act are applicable. Thus, it cannot be said that the Workmen Compensation Commissioner has committed any illegality in entertaining and allowing such an application.
12. For the reasons stated above,I do not find any illegality in the order impugned in the writ petition and the writ petition is dismissed.
13. However, looking into the facts and circumstances of the case and also the fact that the petitioner has claimed compensation because of the alleged acid burn injuries during the course of the employment, I provide that this application shall be disposed of by the Commissioner within a period of four months from the date a certified copy of this order is produced before him.