- (1.) This Rule is directed against the order dated November 11, 1975 passed by the learned Commissioner for Workmen's compensation West Bengal, allowing an application for restoration of Claim Case No. 5704 of 1966 before him which was dismissed earlier for default. On September 30, 1966 the opposite party workman filed an application before the Commissioner of Workmen's Compensation West Bengal claiming a lump sum compensation for Rs. 2940/- on account of personal injury by accident on October 27, 1965 arising out of and in course of his employment under the petitioner company, giving rise to Claim Case No. 5704 of 1966. The claim was contested by the company and come up for hearing as a contested cause before the learned Commissioner on the fixed date on August 17, 1972, but as the workman was absent, the case dismissed for default on the same date.
(2.) On May 12, 1975 the workman filed an application for restoration of the case stating that due to his sudden illness he could not attend the Court nor inform his lawyer on the day fixed for hearing. No explanation however was forthcoming for the delay in making the application. The application was contested by the Company.
(3.) The learned Commissioner relied on the decision in Harbhajan Singh v. Bishu Roy 1963 C.L.J. 192 in which it was observed that there was no specific provision in the Workman's Compensation Act 1923 and its rules for limitation in respect of applications for setting aside an exparte order. Even if the Limitation Act 1908 applied in absence of specific provision for setting aside exparte order Article 181(Article 164 not applicable being confined to decree) providing three years' limitation would be applicable for applications under order 9 rule 13 of the Code of Civil Procedure, read with Rule 41 of the Workmen's Compensation Rules, 1924. Rule 41 is 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, in so far 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 tem 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 he interests of the parties will not thereby be prejudiced. It could possible be said that the Rule suffer form the wide or unbridled delegation though such consideration is not material for out purpose. The learned Commissioner accordingly held that the application was not barred by limitation. On merits, the Commissioner accepted the workman's case and allowed the application by the impugned order setting aside the exparte order of dismissal of the claim case which was restored to file. The rule as already stated is directed against this order.;