RAGHUNATH PADHI Vs. BUDHU SITARI

JUDGEMENT

(1.) THIS appeal has been filed Under Section 30 of the Workmen's Compensation Act challenging the award of the Commissioner for Workmen's Compensation (in short, the 'Commissioner') directing that compensation of Rs. 1,17,782/ - is payable to the claimants. The Commissioner directed that the aforesaid amount should be paid by opposite party No. 2 in the claim application, namely the Orissa Mining Corporation and further observed that the said Corporation was at liberty to realise the compensation amount from opposite party No. 1 Raghunath Padhi, the present appellant. It is not disputed that the amount of Rs. 1,17,782/ - has been deposited by the Orissa Mining Corporation before the Commissioner: The appellant has challenged the award because ultimately the amount was directed to be recovered from him.

(2.) IN view of the order proposed to be passed, it is not necessary to go into the facts of the case. Suffice it to say that the claimants who are the parents of deceased Siba Sitari filed the claim application stating that the deceased died in an accident arising out of and in course of employment. In the said proceeding, the present appellant Raghunath Padhi had been impleaded as opposite party No. 1. From the materials on record, it is apparent that the contract of the mines had been given to a partnership firm called Apex Mining of which Raghunath Padhi is the Managing Partner and one M. Singh Samant is the other partner. The question as to whether the accident arose out of and in course of employment and as to whether the deceased was a workman need not be decided by me here, as the matter is being remanded to the Commissioner for fresh disposal. This order of remand has become necessary in view of the fact that Raghunath Padhi was not purported to be sued in his capacity as Managing Partner of the firm, but in his individual capacity. Since the partnership firm had not been impleaded and Raghunath Padhi had not been sued in his capacity as a partner, ultimately the partnership firm would not be liable and it would create a legal complication. In the interest of justice, it is necessary that the W.C. Case should proceed against the partnership firm. It is, of course, true that the partnership firm can be represented by any of the partners, but in such a case, when a partnership firm is represented by any of the partners, the entire partnership firm is liable, but if the partnership firm is not sued and a person is sued in his individual capacity, the partnership firm would not be liable. From Annexure -1 to the Misc. Case filed by the Orissa Mining Corporation, it is apparent that the Mining Corporation had written a o letter to the partnership firm for indemnification so far as the compensation was concerned. The position of law is clear in view of the decisions reported in AIR 1978 Allahabad 123, (Yadav Ram v. Laxman Singh Bisht); AIR 1933 Lahore 618 (Ram Niwas Poddar v. Diwan Chand Parma Nand and others) and 1974 (2) CWR 1045 (Afsar Hussain and Anr. v. Trilokchand Premchand). Keeping in view the provisions contained in Order 30, Code of Civil Procedure and the aforesaid decisions, it is necessary that the partnership firm should be impleaded as opposite party No. 1 in the claim case and the partnership firm may be represented through Raghunath Padhi who is the Managing Partner of the firm. Since the partnership firm had not been impleaded, it would be open to the partnership firm to file fresh written statement and thereafter the matter should be decided in accordance with law by permitting the parties to adduce fresh evidence. The matter should be decided on the basis of fresh evidence to be adduced by all the parties including the claimants and the opposite parties in accordance with law without being influenced by any observations made in the earlier order of the Commissioner or in the present appeal. The order remanding the matter to the Workmen's Compensation Commissioner for fresh disposal should not be taken to be indicative of any opinion on the merits of the case. The amount deposited by the Orissa Mining Corporation shall be refunded to it.