Pradeep Kant, J. - (1.) The petitioner being aggrieved by an order dated 1.2.2001 passed by the Workmen Compensation Commissioner, by virtue of which the ex parte order dated 6th March. 1999, has been set aside, has approached this Court under Article 226 of the Constitution of India.
(2.) The main thrust of challenge to the impugned order is as follows : (i) The Workmen Compensation Commissioner under the provisions of the Workmen's Compensation Act, 1923, was having no power to set aside the ex parte order. (ii) The only remedy available to the petitioner was to file an appeal under Section 30 of the Act and that too within the prescribed period. (iii) There was neither any power to entertain the application for setting aside the ex parte order nor the benefit of Section 5 of Indian Limitation Act could be given to the petitioner as the said benefit in view of sub-section (3) of Section 30 is available to the appeals only. (iv) In view of Section 23 which prescribes power or procedure of Commissioner, the provisions of the Civil Procedure Code in so far as they relate for the purpose of taking evidence on oath or enforcing the attendance of witnesses and compelling the production of documents and material object is concerned, was applicable and consequently Rule 41 which makes various other orders of the Code of Civil Procedure applicable in the proceedings before the Commissioner including Order IX of the Code is unconstitutional and ultra vires the Act, as it goes beyond the powers given in the Act, namely, Section 23. It may be clarified that the virus of Rule 41 has not been challenged in the writ petition and there is no pleading to this effect but since it is a pure legal question, the learned counsel for the petitioner requested that this plea may be directed to be raised and this Court has granted permission to raise this plea. (v) Under Rule 32. only clerical mistake should be corrected by the Commissioner.
(3.) The petitioner, who was working with M/s. Vijay Shri Chemicals (India) Limited, Kosi Kalan. Mathura, white on duty suffered acid burn injuries in which his right eye was seriously damaged, had claimed compensation under the provisions of Workmen's Compensation Act. An ex parte order was passed on 6.3.1999 awarding compensation to the amount of Rs. 88.401.60P along with 12% interest. In this proceeding admittedly the employer did not participate and they were absent. It appears that thereafter on 3rd May. 1999, a recovery certificate was sent by the Commissioner. Agra Region. Agra, to the Collector, Mathura for making recovery of the amount ordered to be paid to the petitioner.;