The High Court of Bombay allowed the petitioner's writ petition setting aside the Labour Court's refusal to condone its inadvertent absence in ex-parte proceedings regarding a compensation claim under the Workmen's Compensation Act.
Petition allowed; respondent to pay petitioner Rs.20,000 as costs within eight weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1216 of 2002
Rashtriya Chemicals & Fertilisers Ltd.. Petitioner
versus
Mubashera M. Sayed & Anr. .. Respondents
Mr.Girish Kulkarni i/b M/s.Bodhanwala & Co. for the
petitioner.
Mr.N.M. Ganguli for the respondent no.1.
CORAM : D.G. KARNIK,J.
DATED : 11th July 2005.
P.C.:
1. By this petition, petitoner takes exception
to the judgement and order dated 23rd February 2002
passed by the Commissioner for Workmens Compensation
and the Judge, Labour Court, Mumbai declining to set
aside the ex-parte judgement and order dated 23rd
November 2001.
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2. The respondent no.1 is a widow of Mansur Ali
(for short ’the deceased’) who was employed with the
petitioner Company. On 26th December 1997, while on
work, the deceased collapsed suddenly and died.
According to the respondent, the deceased died on
acount of of chest paid suffered on account of an
employment injury while according to the petitioner,
the deceased died of a cardiac arrest following a
massive heart attack. The post mortem report shows
that the deceased died of a coronoary artery heart
disease.
3. The respondent filed an application under
Workmens Compensation Act claiming compensation
alleging that the deceased had died on account of
employment injury. The petitioner resisted the claim
alleging that the death was due to natural causes, a
massive heart attack. When the matter came up for
hearing, the petitioner and its advocate were absent
and Labour Court proceeded to hearing the complaint
ex-parte. By a judgement and order dated 23rd
November 2001, the learned Labour Judge allowed the
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application and granted compensation of
Rs.1,79,000/-.
4. The petitioner thereafter filed an
application for setting aside the ex-parte judgement
and order. In the application, petitioner averred
that the petitioner had employed Mrs. Ayesha Somandy
as an advocate to defend the case. After filing the
written statement petitioner’s advocate proceeded on
maternity leave in July 2000. All other proceedings
handled by were assigned to other advocates.
However, inadvertently, the respondent’s case
remained to be assigned to any other advocate. It
was on account of inadvertent mistake in transferring
the papers from one advocate to another advocate that
the matter was heard ex-parte. The learned Judge who
heard the restoration application held that there was
no sufficient cause for the petitioner to remain
absent. He observed that the petitioner had not
given the exact date on which its advocate proceeded
on maternity leave and when she returned and that the
petitioner had not produced any documentary evidence
in regard to that therefore disbelieved the case of
the petitioner and dismissed the application. That
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judgement is impugned in this petition.
5. I have heard the learned counsel for the
parties. I fail to see what kind of documentary
evidence the petitioner could have produced to show
that its advocate went on leave. A perusal of the
reply filed by the respondent to the application for
restoration discloses that the respondent has not
specifically denied that the petitioner’s advocate
was on maternity leave. What was alleged was the
petitioner had not filed an authority (vakalatnama)
of other advocate for its appearance in the matter.
In fact, it was the very case of the petitioner that
though the previous advocate had gone on a materniy
leave and other advocates were engaged in her place
in other matters, through inadvertence, no other
advocate was engaged in the present matter. In the
absence of specific denial that the petitoner’s
advocate was on maternity leave, the said fact was
deemed to be admitted and the petitoner was not
required to adduce any evidence, much less
documentary evidence, to prove the same.
6. I am satisfied that the absence of the
petitioner was not deliberate. The petitioner had
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engaged an advocate and had even filed the written
statement. On the advocate being on maternity leave,
other advocates were also engaged in other matters.
No advocate was engaged in this matter through
inadvertence. Human errors do occur and the
petitioner cannot be denied a just opoortunity to
attend on account of an inadvertant error which
occurred in transmitting the papers from one advocate
on maternity leave to another. In the circumstances,
the trial Court ought to have condoned the delay and
allowed the application.
7. Undoubtedly, the petitioner was negligent atleast
in part in not keeping trace of the matter and
ensuring the papers reached the new advocate and to
ensure that the appearance was filed on petitioner’s
behalf. On account of such negligence, respondent is
likely to suffer on acount of delay in the decision
of the case. The respondent must therefore be
sufficiently compensated. The respondent is a widow.
She may be required to engage another advocate and
has also been required to engage an advocate in this
Court also for defending the petition. The
respondent must be compensated for all this. In the
circumstances, petition is allowed subject to the
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respondent paying to the respondent total sum of
Rs.20,000/- (Rs.10,000/- as costs in the trial court
and Rs.10,000/- as costs in this court) within a
period of eight weeks.
8. It is clarified that if the costs are not
paid within the stipulated time, petition shall stand
dismissed.
9. Rule made absolute to this extent.
D.G. KARNIK, J
2 issues framed by the court
Whether the High Court ought to set aside the Labour Court's order refusing to condone the petitioner's absence in ex-parte proceedings due to inadvertence.
Whether costs should be awarded to the respondent as compensation for the delay in deciding the case caused by the petitioner's negligence.
1 provisions across 1 enactments
Rashtriya Chemicals & Fertilisers Ltd.
Mubashera M. Sayed
D.G. KARNIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court