John.K. vs The Commissioner For Workmen’S on 9 September, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20859 of 2009(B)


1. JOHN.K., VAZHAVILA SHERIN NIVAS,
                      ...  Petitioner

                        Vs



1. THE COMMISSIONER FOR WORKMEN'S
                       ...       Respondent

2. KUNJUMON, S/O.YOHANNAN, PUTHEN VEEDU,

                For Petitioner  :SRI.C.A.JOY

                For Respondent  :SRI.B.MOHANLAL

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :09/09/2009

 O R D E R
                          S. SIRI JAGAN, J
                ...............................................
                  W.P(C) No. 20859 of 2009
               .................................................
        Dated this the 9th day of September, 2009

                          J U D G M E N T

The petitioner is the opposite party employer in W.C.C. No.

13/03 before the Commissioner for Workmen’s Compensation,

Kollam. The 2nd respondent herein was the applicant therein.

The 2nd respondent filed the W.C.C. seeking compensation for

injuries sustained by him allegedly in the course on his

employment with the petitioner. The petitioner entered

appearance in the W.C.C. and filed his written statement.

However, when the matter was posted for evidence, he was

absent. Therefore the commissioner recorded the evidence of

the 2nd respondent and passed Ext.P3 award, directing the

petitioner to pay compensation of Rs.40,666/- with interest at

12% from 4.2.2002. That was passed on 31.12.2008. On

30.3.2009, the petitioner filed Ext.P4 application for setting

aside the ex-parte award and for adjudication of the

compensation claim on merits giving the petitioner an

opportunity to adduce evidence. In the same, the petitioner

W.P(C) No. 20859 of 2009 -2-

contended that the petitioner was not aware of the posting of the

case for evidence, since the Workmen’s Compensation

Commissioner was not sitting for a long period neither the

petitioner nor the advocate was aware of the fresh posting of the

case for evidence. That petition was dismissed by Ext.P5 holding

that averments of the petitioner are not correct and that the

petitioner was repeatedly absent for many postings

consecutively. In that order it was also held that the contention

of the petitioner that there were no regular sittings of the

Commissioner for the last one year was also not true. The

petitioner is challenging Exts.P3 and P5 orders.

2. The writ petition is stoutly opposed by the 2nd

respondent. According to the 2nd respondent, the petitioner is

guilty of wilful negligence in the matter and therefore he is not

entitled to any further opportunity in the case.

3. After considering the arguments of the counsel for the

petitioner, I am also not satisfied that the petitioner has properly

explained his absence before the Workmen’s Compensation

Commissioner when the same came up for evidence. However,

taking a lenient view, I am inclined to direct the Workmen’s

W.P(C) No. 20859 of 2009 -3-

Compensation Commissioner to give the petitioner another

opportunity to put forward his case. However, I am of opinion

that that can only on the condition that the petitioner deposits

the entire amounts awarded by Ext.P3 before the Workmen’s

Compensation Commissioner as a condition for restoration of the

workmen compensation case to file for fresh adjudication and the

further condition that the petitioner pays costs in this writ

petition to the 2nd respondent.

4. Accordingly, the writ petition is disposed of with the

following direction:

If the petitioner deposits the entire amount covered by

Exts.P3 award, Exts.P3 and P5 orders would stand set aside. In

such an event the Workmen’s Compensation Commissioner,

Kollam shall restore WCC No. 13/03 to file and re-adjudicate the

claim after affording an opportunity to both sides to adduce

evidence, if they request for the same. However, I make it clear

that the petitioner shall be ready with his evidence on all posting

days and on no account the petitioner shall seek adjournment of

the case. The Workmen’s Compensation Commissioner shall

complete the fresh adjudication of the case and pass award, as

W.P(C) No. 20859 of 2009 -4-

expeditiously as possible, at any rate, within three months from

the date of receipt of a copy of this judgment. The petitioner

shall also pay an amount of Rs. 5,000/- as costs to the 2nd

respondent in this writ petition, which shall also be a condition

for setting aside Exts.P3 and P5. If the petitioner fails either to

deposit the amounts covered by Ext.P3 or to pay the costs as

directed above to the 2nd respondent within two weeks, the writ

petition would stand dismissed and it would be open to the 2nd

respondent to take steps to enforce Ext.P3 award.

S. SIRI JAGAN, JUDGE

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