Jatinder vs Sushil

R.L. Anand, J.—Jatinder son of Mr. Vishnu Dass has filed the present petition under Article 227 of the Constitution of India and he has prayed for the quashing of the impugned order dated 21.1.2000 passed by the learned Commissioner, under the Workmen's Compensation Act, Karnal, and for setting aside the ex-parte order dated 13.1.1994 and the final order dated 28.2.1995 passed by the said Commissioner mainly on the ground that petitioner-Jatinder is not a partner of M/s Vishnu Engineering Fabricator Works, Tikri-Kailash Road, Karnal, and he has been wrongly shown as respondent, No. 2 in the main petition filed by Sushil alias Sushil Kumar-respondent No. 1 (herein).

Some facts can be noticed in the following manner :-

Sushil alias Sushil Kumar filed a claim petition before the Commissioner under the Workmen's Compensation Act against M/s Vishnu Engineering Fabricator Works, Tikri-Kailash Road, Karnal (hereinafter referred to as the firm) through its partners Jatinder and Raju alleging that they are the partners of the said firm. On the. entertaining of the petition, a notice was sent to the parties while respondent No. 4 i.e. the National Insurance Company filed written statement. Nobody gave appearance on behalf of the firm and its partners, therefore, they were proceeded ex-parte. Ex-parte evidence was led on behalf of the claimants and finally the Commissioner found that a sum of Rs. 26,632/- is due to the respondents and they were directed to deposit the said amount within 30 days from the date of passing of the order failing which further interest at the rate of 12% per annum was to be paid till the date of realisation. No relief was granted against the Insurance Company as the particulars of the insurance were not available with the claimants. The order of the Commissioner is executable as arrears of the land revenue.

Present petitioner has filed the petition for setting aside the ex-parte order dated 13.1.1994 and the final order dated 28.2.1995 which were also dismissed by the Commissioner on 21.1.2000. Aggrieved by these orders, the present petition has been filed.

Notice of the petition was given to the respondents.

I have heard Mr. Sumeet Goel, Advocate, for the petitioner and Mr. Sanjiv Gupta, Advocate, for respondent No. 1 and with their assistance I have gone through the record of the case.

The record indicates that the claim petition was filed in the year 1993. Notices were served on respondents 1,2 and 3. Nobody gave appearance on their behalf. Hence, they were proceeded ex-parte vide order dated 13.1.1994. Learned counsel for the respondent has also shown me a certified copy of the interim orders which prima facie shows that the repeated efforts were made by the Commissioner for the effecting service on these respondents. Ultimately, they were ordered to be served by way of registered post vide order dated 21.12.1993. It may also be mentioned here that a similar application for ex-parte order was also filed by Vishnu Dass who is none else but the father of Minder, the present petitioner.

Learned counsel for the petitioner submits that it is not on the record that Jatinder, the present petitioner had any interest in the firm or that he was a partner of the said firm. According to the learned counsel for the petitioner, Jatinder had nothing to do with the partnership of the firm known as M/s Vishnu Engineering Works, Karnal. However, it is conceded by the learned counsel for the petitioner that Jatinder is the spn of Vishnu Dass who according to the learned counsel is the sole Proprietor of the firm. On the contrary, learned counsel for the respondent submits that the Commissioner ordered the service of the respondents 1 to 3 by the registered post and thus presumption under law is that respondents 1 to 3 were duly served by way of registered post. Nothing has been brought on the record to show either by Vishnu Dass or by the present petitioner to indicate that M/s Vishnu Engineering Works, Karnal, was the sole Proprietor. Learned Counsel for the respondent also invited my attention to the letter dated 2.8.1996 in which it is clearly mentioned that the present petitioners Jatinder and Raju are the partners of M/s Vishnu Engineering Works, Karnal. Be that as it may, the point for determination is whether the impugned orders suffer from any illegality or not. Order dated 28.2.1995 clearly spells out that the firm and the two persons Jatinder and Raju were served. They were served in the year 1994. Nobody gave contest to the petition as well as the order passed on 28.2.1995 declaring the liability of the firm and its partners to the extent of Rs. 26,632/-. The application for setting aside the ex-parte order and the final order was moved somewhere on 30.9.1999 after a lapse of about 4/5 years. While exercising the jurisdiction under Article 227 of the Constitution of India, this Court must be satisfied that there is a material irregularity or illegality in the proceedings of the Tribunal.

Therefore, I do not find any material irregularity or illegality in the passing of the orders dated 13.1.1994 and 28.2.1995. Therefore, I do not quash the order dated 21.1.2000 and the previous orders as prayed for by the petitioner.

Before I part with this order, I have offer to the learned counsel for the petitioner whether his client is ready to deposit a sum of Rs. 26,632/- in the Court but the learned counsel submitted that his client is very poor so much so that he underwent 3 days imprison-, ment when he was arrested by the Tehsildar in the proceedings under the Land Revenue Act and for this reason he is not in a position to deposit the amount. There appears to be a merit in the contention of the learned counsel for the petitioner. Had the petitioner been in a position to pay Rs. 26,632/- in one go, he would not have suffered sentence of 3 days.

Therefore, while dismissing this petition, I direct the petitioner to pay Rs. 26,632/- to the respondent within 4 months. For a period of 4 months, warrants of arrest shall not be executed upon the petitioner.

Petition dismissed.