Heard learned counsel for the appellant.
The instant appeal has been filed under Order 43 Rule 1(d) of the Code of Civil Procedure against an order dated 13.02.2014 passed by the Commissioner, Employees Compensation Act, 1923 / Assistant Labour Commissioner, Firozabad, having its camp at Agra, in W.C.A. No. 70 of 2010 by which the application of the appellant, under Order 9 Rule 13 C.P.C., for setting aside an ex parte order dated 14.02.2013 has been rejected.
It appears that against the order impugned, the appellant had earlier filed Writ C No. 20502 of 2014, which was dismissed on ground that against rejection of an application under Order 9 Rule 13 C.P.C. the petitioner has remedy of filing an appeal under Order 43 Rule 1 C.P.C.
The admitted position is that the claimant -respondent filed a claim before the Commissioner under the provisions of the Employees Compensation Act, 1923 (hereinafter referred to as the Act). The said Act was enacted to provide for the payment of compensation by certain classes of employers to their employees for injury by accident. Sub-section (2) of Section 19 of the Act provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under the Act. Section 20 of the Act provides for appointment of Commissioners whereas Section 22 provides for the form and the manner in which an application of a claim is to be made before the Commissioner. Section 23 provides for the powers and procedure of Commissioners whereas Section 30 provides for appeal against certain categories of orders passed by a Commissioner subject to certain conditions. Thus, the Act is a self contained code in respect of all claims that are raised thereunder. Therefore, whether an appeal against rejection of an application under Order IX Rule 13 CPC seeking setting aside of an ex parte order passed by a Commissioner, while exercising his powers under the provisions of the Act, would lie, under Order 43 Rule 1 (d) CPC, is a question which needs to be examined in reference to the provisions of the Act and the Rules framed thereunder.
It is well known that the right of appeal is not a natural or inherent right. It cannot be assumed to exist unless expressly provided for by statute. Being a creature of statute, remedy of appeal must be legitimately traceable to the statutory provisions. It is true that mere omission or error in quoting the provisions would not affect the maintainability of appeal, if otherwise, the order impugned is amenable to appeal (vide para 23 of apex court decision in Super Cassettes Industries Ltd. v. State of U.P., (2009) 10 SCC 531). In D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26, the apex court, in para 12 of the report, observed that right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In Raj Kumar Shivhare v. Directorate of Enforcement, (2010) 4 SCC 772, the apex court reiterated the following principles: that right of appeal is a creature of statute; it is never an inherent right, like that of filing a suit; while conferring such right a statute may impose restrictions, like limitation or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law; and whenever such limitations are imposed, they are to be strictly followed. The apex court in Raj Kumar Shivhare's case (supra) emphasized that the right of appeal being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself; and when the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same.
In view of the legal position noticed above, it would be useful to examine the provisions of the Act and the Rules framed thereunder to ascertain whether any appeal has been provided under the Act or the Rules framed thereunder against an order rejecting an application to set aside an ex parte order. Section 23 of the Act provides as follows:-
"23. Powers and procedure of Commissioners.- The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure 1908 (5 of 1908) for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects and the Commissioner shall be deemed to be a Civil Court for all the purposes of section 195 and of Chapter XXVI of the Code of Criminal Procedure 1973 (2 of 1974)."
Section 30 of the Act provides as follows:-
"30. Appeals--(1) An appeal shall lie to the High Court from the following orders of a Commissioner namely :-
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(a a) an order awarding interest or penalty under section 4A;
(b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased workman or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions :
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees :
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner or in which the order of the Commissioner gives effect to an agreement come to by the parties :
Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
(2) The period of limitation for an appeal under this section shall be sixty days.
(3) The provisions of section 5 of the Limitation Act 1963 (36 of 1963) shall be applicable to appeals under this section."
Section 32 of the Act gives power to make rules to carry out the purposes of the Act. Sub-section (2) of section 32 provides that in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
"(a) for prescribing the intervals at which and the conditions subject to which an application for review may be made under section 6 when not accompanied by a medical certificate;
(b) for prescribing the intervals at which and the conditions subjects to which a workman may be required to submit himself for medical examination under sub-section (1) of section 11;
(c) for prescribing the procedure to be followed by Commissioners in the disposal of cases under this Act and by the parties in such cases;
(d) for regulating the transfer of matters and cases from one Commissioner to another and the transfer of money in such cases;
(e) for prescribing the manner in which money in the hands of a Commissioner may be invested for the benefit of dependants of a deceased workman and for the transfer of money so invested from one Commissioner to another;
(f) for the representation in proceedings before Commissioners of parties who are minors or are unable to make an appearance;
(g) for prescribing the form and manner in which memorandum of agreements shall be presented and registered;
(h) for the withholding by Commissioners whether in whole or in part of half-monthly payments pending decision on application for review of the same;
(i) for regulating the scales of costs which may be allowed in proceedings under this Act;
(j) for prescribing and determining the amount of the fees payable in respect of any proceedings before a Commissioner under this Act;
(k) for the maintenance by Commissioners of registers and records of proceedings before them;
(l) for prescribing the classes of employers who shall maintain notice-books under sub-section (3) of section 10 and the form of such notice-books;
(m) for prescribing the form of statement to be submitted by employers under section 10A;
(n) for prescribing the cases in which the report referred to in section 10B may be sent to an authority other than the Commissioner;
(o) for prescribing abstracts of this Act and requiring the employers to display notices containing such abstracts;
(p) for prescribing the manner in which diseases specified as occupation diseases may be diagnosed;
(q) for prescribing the manner in which diseases may be certified for any of the purposes of this Act;
(r) for prescribing the manner in which and the standards by which incapacity may be assessed.
(3) Every rule made under this section shall be laid as soon as may be after it is made before the State Legislature."
In exercise of power conferred by section 32 of the Act, Workmen Compensation Rules, 1924 were made. Rule 41 of the Workmen Compensation Rules, 1924 provides as follows:-
"41. Certain provisions of Code of Civil Procedure, 1908 to apply:- Save as otherwise expressly provided in the Act or these Rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, insofar as they may be applicable thereto:
Provided that---
(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced."
A conspectus of the relevant provisions of the Employees Compensation Act, 1923 and the Rules framed thereunder would go to show that appeal is provided only against certain categories of orders passed by a Commissioner, as mentioned in section 30 of the Act. A perusal of the provisions of Rule 41 reveals that although the provisions of Order IX C.P.C. have been made applicable to proceedings before Commissioners, but Order 43 of the Code has not been made applicable. Rule 41 or any other Rule or provision of the Act does not make Order 43 or even Section 104 of the Code applicable to the proceedings drawn under the Act. Only limited provisions of the Code of Civil Procedure have been made applicable. Accordingly an appeal, under Order 43 Rule 1 (d) CPC, against an order passed by a Commissioner rejecting an application seeking setting aside of an ex parte order, under Order IX Rule 13 CPC, in proceedings arising under the Act, would not be maintainable. Similar view has been taken by a division bench of Karnataka High Court in the case of Praveen Industries & others versus Banawar Singh: 1991 (1) TAC 138.
It would be useful to note that a similar provision, as Rule 41 of the Workmen Compensation Rules, existed in Rule 21 of the U. P. Motor Accident Claims Tribunal Rules, 1967 framed under the Motor Vehicles Act, which made the provisions of Order IX C.P.C. applicable to the proceedings before the Motor Accident Claims Tribunal. But, the said rule neither made the provisions of section 104 nor of Order 43 of the Code of Civil Procedure applicable to the proceedings under that Act. In the case of Om Prakash and another v. Smt. Rukmini Devi and others:1982 (8) ALR 524, a question arose before a Division Bench of this Court whether on the strength of Rule 21 of the aforesaid Rules an appeal under Order 43 CPC would lie against an order rejecting an application under Order IX Rule 13 CPC to set aside an ex parte award of the Tribunal. The Division Bench took the view that since the provisions of Order 43 have not been made applicable by the U.P. Motor Accident Claims Tribunal Rules, 1967 and only the provisions of Order IX have been made applicable, therefore, an appeal under Order 43 Rule 1 would not lie. The Court further observed that in such a case the remedy for the aggrieved party is to file a writ petition and not an appeal under Order 43 Rule 1(d) of the Code of Civil Procedure. Similar view has also been taken by another Division Bench of this Court in the case of Narendra Singh and others v. Smt. Dhappo (widow) reported in 1990 (1) T.A.C. 397.
For the reasons discussed above, it is held that the appeal of the appellant, under Order 43 Rule 1(d) of the Code of Civil Procedure, is not maintainable and the same is dismissed as such.
Order Date :- 17.4.2014 Sunil Kr Tiwari