MILAP CHANDRA JAIN, J. - (1.) THE appeal has been filed under Section 30, Workmen's Compensation Act, 1923 (hereinafter to be called 'the Act') for setting aside the order of the Workmen's Compensation Commissioner, Udaipur dated November 25,1989, dismissing the application of the non-petitioner-appellants moved under Order 9 Rule 13, C.P.C. read with Rule 41, Workmen's Compensation Rules, 1923, the ex parte award dated July 28,1987 and also the order dated July 3,1987 by which it ordered for proceeding ex-parte against the non-petitioner-appellants in the claim petition. The facts of the case giving rise to this appeal may be summarised thus.
(2.) THE respondent's husband Kamji was working with the non-petitioner-appellants as the Beldar. While he was working on the road during the course of his employment, he was crushed by the truck No. RRQ 3312 of the Contractor. A claim petition was filed under Section 3 of the Act against the non-petitioner-appellants. In the reply, they admitted that he was working as a Beldar on monthly wages of Rs. 663/-, he met with an accident and as a result thereof he died on December 15,1985. It was further averred that the accident did not occur in the course of employment. July 3,1987 was fixed for the petitioner's evidence. On that day none was present for and on behalf of the non-petitioner-appellants. The Workmen's Compensation Commissioner proceeded ex parte and recorded the evidence of the petitioner-respondents. He heard arguments on July 20,1987 and passed order on July 28, 1987 awarding Rs. 76,963,65 p. as compensation. On November 24,1987, the appellants moved an application under Order 9 Rule 13, C.P.C. read with Rule 41, Workmen's Compensation Rules, 1923 for setting aside ex parte award along with an application under Section 5, Limitation Act for condonation of delay. Affidavits of Akhiluddin, Assistant Engineer, National Highway, Kherwara Sub-Division, Yogendra Swaroop Mathur Assisant Engineer, National Highway, Mahua Sub-Division and Jamunashanker Dave, Executive Engineer, National Highway, Udaipur Division, photostat copy of the caused leave application of Yogendra Swaroop Mathur and transfer order dated August 26,1987 have been filed in support of the application. The petitioner-respondent filed replies seriously opposing it. After hearing the parties the Workmen's Compensation Commissioner, Udaipur dismissed the application by his order dated November 25,1989.
(3.) IT has been contended by the learned Government Advocate that the Workmen's Compensation Commissioner seriously erred in not setting aside the order dated July 3, 1987 award dated My 28,1987 and also order dated November 24, 1987 despite the fact that sufficient cause was shown or the absence of the non-petitioner-appellants on July 3, 1987. He also contended that the non-petitioner-appellants No. 2 Shri Mathur proceeded on privilege leave and subsequently he was transferred therefrom and as such application for setting aside the order dated July 3, 1987 and award dated July 28,1987 could not be moved earlier and the non-petitioner-appellants could know about the ex parte order only after the receipt of the copy thereof on November 14,1987. He lastly contended that the aforesaid documents and affidavits duly support the application moved for setting aside the said order and ex parte award.;