Employee State Insurance Corp. and Others vs Uttarakhand Power Corp. and Another

Tarun Agarwala, J.—Heard Mr. C.K. Sharma, the learned Counsel for the petitioners and Mr. B.D. Upadhaya, the learned Counsel for the respondents.

The plaintiff opposite party filed an application u/s 75 of the Employees State Insurance Act, 1948 in which summons were issued fixing 07th August, 2006 for the appearance of the petitioners. On 07th August, 2006, the court below found that the notices upon the defendant had been served and inspite of service of notice, the defendant did not appear. The court below, accordingly, passed an order to proceed exparte against the defendant. On 04.04.2007, the defendant appeared before the court below and filed an adjournment application 17-D, which was rejected by the court below on the ground that the defendant cannot move an adjournment application because the court had already directed to proceed exparte against it. Subsequently, an application dated 13th May, 2007 was filed for the recall of the order dated 07th August, 2006 and seeking permission to file the written statement. This application has been rejected by the court below by an order dated 06.05.2010 on the ground that no explanation has been given as to why the defendant petitioners could not appear earlier. The petitioners, being aggrieved, have filed the present writ petition.

The only ground urged by the petitioners is that the petitioners, being a corporation, there was a procedural delay in seeking necessary sanction / permission for contesting the matter and that on account of the red tapism, the petitioners could not appear before the court below.

Having heard the learned Counsel for the parties, the court finds that the approach adopted by the court below was patently erroneous. The mere fact that the court had directed to proceed exparte against the defendant does not mean that the defendant was debarred from appearing in future even after an order to proceed exparte was passed. It is open to the defendant to appear on the adjourned date and proceed with the case from that date and contest the matter from the adjourned date onwards. This is precisely what has been held by the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, . In the event, the defendant wants to turn the clock back, it becomes necessary for the defendant to move a recall application to recall the order by which the court had directed to proceed exparte.

In the instant case, the court finds that the defendant had moved an application on 04th April, 2007 seeking adjournment. The court below could not have rejected the application on the ground that the defendant could not move such an application since there was an order to proceed exparte against the defendant. This order, in the opinion of the court, is directly against the decision of the Supreme Court in Sangram Singh''s case (supra). Due to the rejection of the said application, the defendant was forced to file the said application for the recall of the exparte order.

No doubt, there has been a delay and the delay has not been satisfactorily explained. The mere fact that there has been a procedural delay and there is a red tapism, being a government department cannot be a ground to condone the delay. Being a corporation, the defendant has all the facilities and infrastructure to move ahead and get necessary permission to contest the matter. There may be some red tapism involved, but, even then the corporations are aware of the law and cannot be expected to proceed in a lackadaisical attitude and be impersonal. Such kind of attitude cannot be tolerated. On account of certain delay, the court below could not have rejected the application, especially, when the court finds from a reading of the ordersheet that nothing much has progressed in the suit. The court below should have adopted a liberal approach and should have allowed the application on payment of cost.

In view of the aforesaid, the court finds that the impugned order dated 06.05.2010 cannot be sustained and is quashed. The writ petition is allowed. The order dated 07th August, 2006 by which the court below had directed to proceed exparte is also quashed on payment of cost of Rs. 5,000/ - (Rupees Five Thousand only), which the petitioners will deposit by means of a cross demand draft in favour of the plaintiff within three weeks from today. If the cost is deposited, it would be open to the court below to take on record the written statement of the defendant.

Before closing the case, the court further finds that the plaintiff is a corporation and the defendant is also a corporation and that two government departments are litigating like petty litigants in a court of law. Government departments should not litigate in court and should sit across the table and settle the dispute amicably so that the burden of the civil court is lessened. The court, consequently, directs the parties to amicably settle the dispute between themselves and only as a last resort should approach the court.