BRAHMUN Vs. BALAM ALIAS BALMUKAND

JUDGEMENT

(1.) This is an appeal under section 30 of the Workmen's Compensation Act, 1923, against the order of the Commissioner dismissing the application of the widow and minor sons of Raghu deceased for award of compensation under the said Act.

(2.) Briefly, the facts are that Raghu used to work on the mine of Balmukand respondent and an accident occurred on 15th March, 1951 in which one Kalyan Singh workman died, Raghu was seriously injured and one or more other workers also received injuries. Raghu applied from the hospital claiming Rs. 5,000 as compensation on the allegation that while he was working in the mine along with three other workers the mine fell and one worker died and he received serious injuries. Balmukand, the employer, in reply pleaded that he had leased the mine to Kalu Ram on 12th February, 1951 and therefore he was not liable to pay any compensation and that in any case, according to him, no accident had occurred in his mine during the course of employment of Raghu and he further alleged that if the applicant went to the jungle for his own work and if any accident occurred there he, i.e., Balmukand was not liable. Unfortunately, before that application could be decided Raghu died in the hospital on 14th September, 1951 and his application was dismissed in default on 16th October, 1951. His minor sons and the widow then filed the present application on 9th November, 1951 and it remained pending before the Commissioner till 27th July, 1953 when it was dismissed on the finding that the accident did not occur in the course of any employment of the deceased nor did it arise out of employment and it is against that order that the present appeal is directed.

(3.) Shri Daya Krishan Mahajan, learned counsel for the respondent, has raised a preliminary objection that the appeal is barred by time. Now, under section 30 of the Workmen's Compensation Act an appeal is to be filed within sixty days and in present case the order under appeal was passed on 27th July, 1953 while the appeal was filed in this Court on 9th November, 1953, i.e. after the expiry of more than sixty days. From the record, however, it is clear that the order in question was not made in the presence of the parties and the learned Commissioner in the order under appeal directed that the counsel for the parties should be informed of the same. On going through the papers attached to the appeal I find that the appellant's counsel who appeared before the Commissioner was not informed of the order till 4th September, 1953. An application for a certified copy of this order was made on 22nd September, 1953 and the copy was completed on 26th October, 1953. Now, there is no doubt that if the appellants are entitled to exclude the time taken in obtaining a certified copy, then the appeal is within time. It is clear in the circumstances that it was not possible for the appellants to learn of the order till it was announced to them and that was on 4th September, 1953. It cannot be held, where a judgment is not accounted in the presence of the parties, that they should continue making enquiries every day as to when the order will be passed and therefore it appears to me only natural that the parties should rely on the Commissioner giving the necessary information to them to enable the aggrieved party to file an appeal within limitation or, in case a conditional order is passed, to enable a party to comply with the same. It is well settled that when a judgment in a civil suit has been pronounced without previous notice to the party and at a subsequent date information as to the judgment is sent to the party or his Pleader, the latter must be taken to be the date of the judgment and limitation will start from the date of such information. Although Order 20 of the Code of Civil Procedure has not been made applicable to the proceedings under the Workmen's Compensation Act, this principle in my opinion is in consonance with natural justice and is based on the principle that an act of Court or of its officers should prejudice no man and therefore it should be held applicable to these proceedings. In any case section 5 of the Limitation Act has been expressly made applicable to appeals under the Workmen's Compensation Act and there is no doubt that the omission of the Commissioner to produce the order in the presence of the parties and not to inform the parties till 4th September 1953 constitutes sufficient ground for not filing the appeal within time, and in exercise of my discretion I extend the time by the period from 27th July to 4th September 1953.