WA NO. 404 OF 2025 1 2025:KER:30368 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 WA NO. 404 OF 2025 AGAINST THE JUDGMENT IN WP(C) NO.15133 OF 2024 OF HIGH COURT OF KERALA APPELLANT(S)/PETITIONER: ABDUL RAHIMAN, AGED 60 YEARS S/O . MUHAMMADKUTTY, KARIKKAYIL HOUSE, CHELAKKODE PO, THRISSUR, PIN - 680587 BY ADVS. K.ANAND BENNY ANTONY PAREL GOWRI MENON NANDHANA T.B. ARCHANA N. KEERTHANA SARIGA T.S. RESPONDENT(S)/RESPONDENTS: 1 SECRETARY, INDUSTRIAL TRIBUNAL, OLAVAKODE, PALAKKAD, PIN – 678002 WA NO. 404 OF 2025 2 2025:KER:30368 2 COMMISSIONER FOR EMPLOYEE'S COMPENSATION , OLAVAKODE, PALAKKAD, KERALA, PIN - 678002 3 DEPUTY TAHSILDAR, THALAPPILLY TALUK, THRISSUR, PIN – 680601 4 VILLAGE OFFICER, CHELAKKODE, THRISSUR, PIN - 680587 5 MURALEEDHARAN, S/O.NARAYANAN,KUNNATH PADINJARE HOUSE,THEKKEPOTTA POST, PALAKKAD, PIN - 678687 OTHER PRESENT: SRI C A CHACKO SR GP SRI T K VIPINDAS THIS WRIT APPEAL HAVING BEEN HEARD ON 03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 404 OF 2025 3 2025:KER:30368 JUDGMENT Amit Rawal, J. Inter alia alleges that the order of the Single Bench in rejecting the writ petition considering that the appellant / petitioner has not challenged the award dated 7.11.2012, therefore it would be a farcical exercise in pursuing the application for setting aside the ex parte order. Mr. K.Anand, learned counsel appearing on behalf of the petitioner submitted that the application for setting aside the order was filed on 20.7.2018 and there was already an interdiction by the Court in WP(C) No.25369/2018 which was disposed of on 31.10.2023 with a directions to decide the application. The appellant was proceeded ex parte on 8.2.2012. No harm and prejudice will be caused to the respondent and authority in trying and holding the enquiry by considering the defence of the appellant. 2. Issue notice before admission. Counsel for the respondent accepted notice and submitted that the matter can be decided afresh, in accordance with law, subject to any terms and conditions which this Hon'ble court deems it WA NO. 404 OF 2025 4 2025:KER:30368 appropriate. Accordingly, we dispose of the present writ appeal by a detailed order. 3. The appellant-petitioner had been arrayed as a respondent in a case filed by the 5th respondent on account of the injuries suffered while on employment for raising the construction of the house. On account of the alleged injury in 2004, claim petition was filed before the Workmen Commissioner under the Workmen's Compensation Act by arraying the petitioner-appellant as respondent. The contention of the appellant-petitioner is that he was working abroad from 1980 to 2013 as Helper in a grocery shop. He lost the job in 2013 and went to Mysore and worked in a hotel and it was only in 2017 settled in his native place and was shocked to receive the revenue recovery notice dated 12.7.2018. Therefore, the cause of action accrued on the alleged ex parte order of the Workmen Commissioner awarding the compensation of Rs.3,09,406/-. Two IAs were filed I.A No.31 of 2018 and 32 of 2018. I.A No.32 of 2018 was for setting aside the ex-parte order and I.A No.31 was for condoning the delay of 2354 days in filing the petition. WA NO. 404 OF 2025 5 2025:KER:30368 4. Learned competent authority did not even frame the issues on noticing that the delay was not intentional nor willful by giving an opportunity of hearing to lead evidence in support though prima facie the material was placed on record to establish that the appellant-applicant was at abroad but dismissed the application for setting aside the order vide order dated 19.2.2024 which was assailed before the Single Bench and the Single Bench has dismissed the writ petition. It was further contended that the appellant-petitioner had never employed the alleged workman-respondent No.5. It was an employment through the contractor, therefore, there was no relationship of employer and the employee. 5. On the other hand, learned counsel for the workman- 5th respondent submitted that appellant-petitioner has miserably failed to establish any ground for setting aside the exparte order and order under challenge have rightly been passed. 6. We have heard the learned counsel for the parties and appraised the paper book. No doubt, there is some laxity on behalf of the petitioner but on the other hand had also placed WA NO. 404 OF 2025 6 2025:KER:30368 on record a material to show that he was abroad and was not aware of the fact. The findings by the authority that the notices sent are refused or not accepted cannot be attributed to the applicant for the reason that there was some other family members in the family who may not be knowing the nuances of the litigation and must have refused. Appellant- applicant should have been given a chance to lead evidence or the ex-parte proceedings should have been set aside by compensating the other side in terms of money. Instead of relegating the matter to lead evidence on the ground of delay, we deem it appropriate to set aside the ex parte order dated 8.2.2012 and resultantly, the award dated 7.11.2012 subject to the following conditions: (i) The petitioner shall pay the cost of Rs.25,000/- to the respondent No.5. (ii) The cost shall be considered as a condition precedent. (iii) The competent authority will give three (3) effective opportunities to file written statement and place on record the material or lead the evidence. (iv) Similarly, three effective opportunities will be given to the WA NO. 404 OF 2025 7 2025:KER:30368 respondent No.5. (v) These three opportunities shall be 1-1 each and shall decide the entire case within a period of four (4) months thereafter. Writ appeal stands disposed of. Sd/- AMIT RAWAL, JUDGE Sd/- sab K. V. JAYAKUMAR, JUDGE