K SREEDHARAN Vs. THAJUDEEN KOYA

JUDGEMENT

(1.) The petitioner was an employee in the saw mill owned by the first respondent. On 6-5-1987, in the course of employment, he sustained injuries, as a result of which his right palm was cut off. Though it was got stitched, the five fingers of his right hand became paralysed. He, therefore, filed a claim petition before the third respondent under the Workman's Compensation Act, 1923 (for short, the Act only). The third respondent, as per Ext. P1 judgment awarded a compensation of Rs. 24,460/- with 6% interest per annum from 6-6-1987 and in case of failure to deposit the said amount in the court within 30 days from the date of receipt of intimation of the said judgment, revenue recovery steps were directed to be taken against the first respondent under S.31 of the Act. Instead of complying with Ext. P1, he chose to execute two settlement deeds - Exts. P2 and P3 - in favour of his wife viz. the second respondent transferring the entire properties owned by him. According to the petitioner, Exts. P2 and P3 were executed only to defeat the claim of the petitioner under Ext. P1. Thereafter, the second respondent filed O.S.No. 1033 of 1991 before the Principal Munsiff's Court, Kollam for a permanent injunction restraining the defendants (Government of Kerala represented by the District Collector, Tahsildar, Revenue Recovery, Kollam and the Village Officer, Revenue Recovery, Kollam) from attaching or selling the movables in the plaint schedule building and for proceeding against the properties covered by Exts. P2 and P3 settlement deeds. In the said suit, the petitioner was not made a party. Knowing about the suit, the petitioner had filed an application - I.A No. 3164 of 1993 - for impleading him as an additional defendant in the suit. The said application was opposed by the second respondent, who was the plaintiff in the case. The learned Munsiff considered the said I.A. and passed Ext. P4 order on 7-7-1994 dismissing the said application and finding that he is not a necessary party to the suit since the suit itself is for a permanent injunction as against initiating revenue recovery proceedings against the plaint schedule properties for the recovery of the amount from a third party. It is thereafter the suit was decreed by the Munsiff on 8-11-1994 without the first defendant as well as the petitioner in the party array. It is the further case of the petitioner that the above suit itself filed by the second respondent is not maintainable under S.19 of the Act and, therefore, Ext. P5 judgment and decree is invalid and the same is a nullity. It is also the case of the petitioner that the suit itself is as a result of the collusion between the first and second respondents with the defendants in the suit to defeat the interest of the creditors of the first respondent, especially the interest of the petitioner herein in whose favour there is a judgment passed by the third respondent awarding compensation to the workman for the injury sustained by him. It is also the case of the petitioner that under S.14A of the Act, the compensation awarded by the third respondent is having a first charge on the property transferred by the first respondent in favour of the second respondent on the basis of Ext. P2 and P3 settlement deeds. It is also the case of the petitioner that in spite of Ext. P5 judgment, respondents 4 to 6 are bound to lake recovery steps under S.31 of the Act against the first respondent and his properties, including the properties transferred as per Exts. P2 and P3, which are now in the hands of the second respondent. He, therefore, prays for a declaration that the petitioner is entitled to recover the amount granted as per Ext. P1 together with interest and penalty from the properties covered by Exts. P2 and P3. He has also prayed for a declaration that Ext. P5 in respect of the property covered under Exts. P2 and P3 is illegal and without jurisdiction as the same is against the provisions of S.14A and 19(2) of the Act. He has also prayed for a direction to respondents 3 to 6 to immediately recover the amount granted to the petitioner under Ext. P1 and pay the same to the petitioner without any delay. He has also prayed for consequential reliefs.

(2.) On notice from this Court on behalf of the first respondent, a counter affidavit has been filed, wherein it is stated that the original petition is not maintainable under Art.226 of the Constitution. It is further stated that respondents 1 and 2 are living in very difficult circumstance without any means and the saw mill in question now belongs to the second respondent is not functioning and there is no bona fides in the original petition. It is also stated that the petitioner is 'hail and hearty' and none of the grounds stated in the petition are maintainable. It is further stated that the petitioner is bound by Ext. P5 judgment and decree even though he was not impleaded in the suit. It is further stated that Exts. P2 and P3 are bona fide transactions and Ext. P5 has become final and, therefore, the petitioner is not entitled to get any relief. Even though notice was served on the second respondent, she did not file any counter affidavit in the case justifying the transfer of the property by the first respondent in her favour after the award was passed by the third respondent and also in filing the suit before the learned Munsiff without impleading the petitioner as well as her husband the first respondent.

(3.) I heard counsel for the petitioner as well as the contesting respondents and the Government Pleader.