GENERAL MANAGER WESTERN COALFIELDS LTD Vs. KALASIA BAI

JUDGEMENT

(1.) THIS is employer's appeal under Section 30 of the Workmen's Compensation Act, 1923 (her einafter referred to as the Act) against the award dated 27-9-1984 passed by Commissioner for Workmen's Compensation, Jabalpur in Case No. 44 of 1982 (fatal) and also order dated 30-4-1986 passed by the same Commissioner in Case No. 4/85 (non-fatal ).

(2.) RESPONDENT Kalasia Bai claiming to be widow of one Lakkhoo, son of Hori, a wagon loader at Hirdagarh Siding of Western Coalfields Ltd. , filed an application on 22-6-1982 before the Commissioner alleging that her husband Late Shri Lakkhoo, while working as a wagon-loader developed pneu-moconiosis and subsequently died of the same on 117-1980 at T. B. Sanatorium, Chhindwara. She further claimed that since the death of deceased Lakkhoo was because of an occupational disease, she was entitled to a sum of Rs. 25,000/- as compensation under the Act. The appellant was summoned and filed their written statement on 23-8-1982 and submitted that deceased Lakkhoo was employed as a casual wagon loader and did not suffer from pneumoconiosis as alleged. They, therefore, denied their liability to pay any compensation. It appears that on 23-8-1984 the appellant and their counsel were absent and, therefore, the hearing of the case was adjourned to 26-9-1984 at Chhindwara. On 26-9-1984, the appellant and their Advocate remained absent and, therefore the order of compensation was passed. It further appears that the appellants did not care to appear before the Commissioner even thereafter and it was only on 20-9-1985 that an application to set aside the order dated 279-1984 was filed. The Commissioner found no substance in the application and dismissed the same by the impugned-order dated 304-1986. That is how the two order have been challenged in the present appeal.

(3.) THE objection of the learned counsel for the respondent is that no appeal under Section 30 of the Act lies against the order refusing to set aside the ex-parte order. A plain reading of section 30 or the Act would indicate that the objection taken by the respondent is substantial. This Court, however, does not consider it necessary to finally decide this matter as in the opinion of this Court, it would be entitled to give benefit of time taken in prosecuting the application for setting aside the ex parte order and to that extent condone delay in filing the appeal against the original order, while exercising its powers under Sub-section (3) of section 30 of the Act. If an ex parte order has been passed against an employer and he has the remedy of getting that order set aside by filing an application under Order 9 Rule 13 Civil Procedure Code read with Rule 41 of Workmen's Compensation Rules, 1924, there is no reason why on his failure to get the order set aside, he should not be able to challenge the award on merits. Denying such an employer the remedy of appeal would be patently unjust and would, therefore be contrary to the purposes of the Act. In a civil case like this, section 14 of the Limitation Act would come to the rescue of such a person and give him benefit of the time spent in prose-cuting the application.