Proper service of notice under Order 5, Rule 17 CPC is essential before proceeding ex parte, ensuring the right to a fair hearing is upheld.

JUDGMENT

Mr. Vinod S. Bhardwaj, J. (Oral)

In compliance to the order dated 22.10.2019, a demand draft bearing No. 468627 dated 27.10.2023 for a sum of Rs. 25,000/- has been brought in Court today. The same has been handed over to the counsel for respondents No. 2 to 6 in original.

2. Prayer in the present petition is for setting aside the impugned order dated 10.04.2017 (Annexure P-1) passed by respondent No.1 vide which the petitioners were proceeded against ex parte in the proceedings initiated by respondents No. 2 to 6 before the Commissioner under Employee's Compensation Act, Circle-1, Panipat, and further for setting aside the ex parte award dated 10.07.2017 (Annexure P-2). A further challenge is made to the order dated 17.01.2018 (Annexure P-5) vide which the application of the petitioners under Order 9, Rule 13 of CPC has been dismissed.

3. Learned counsel for the petitioners has argued that the contesting respondents No. 2 to 6 had preferred an application before the Commissioner, Employee's Compensation Act, Circle-1, Panipat alleging that deceased Tirloki (husband of respondent No.2 and father of respondents No. 3 to 6)was an employee of the petitioners and had died in an accident that took place of work and during course of his employment on 25.11.2016. It was alleged that the deceased Tirloki was working as a labourer with the petitioners from the last 15 days and was a regular employee of the petitioner under the supervision of Ajay Gupta, Proprietor and Vijay Gupta. On 25.11.2016, when the employees were working on their duty, fire spread out in the factory at around 4:00 P.M. and Tirloki, the husband of the respondent-claimant as well as other co-employees could not find any escape from the same. Resultantly they were burnt to death. An FIR No. 69 dated 25.11.2016, was also registered under Sections 304/337/ 34 of IPC, 1860 at Police Station Sanoli qua the incident.

4. A claim was filed by the respondents No. 2 to 6 before the Commissioner, where order dated 10.04.2017 was passed to proceed ex-parte against the petitioners. The petitioners were proceeded against ex-parte and a final award was passed on 10.07.2017. The petitioner herein moved an application dated 24.11.2017 (Annexure P-3) for setting aside the ex-parte order and consequential ex-parte final award dated 10.07.2017, however, the above said application was also dismissed by the Commissioner, Employee's Compensation, Circle-1, Panipat vide order dated 17.01.2018. All the aforesaid three orders are under challenge by the petitioners in the present writ petition.

5. Counsel for the petitioner has referred to the order dated 17.01.2018, passed on the application submitted by the petitioners under Order 9, Rule 13 CPC for setting aside the ex parte order as well as the ex parte award. The relevant extract reads thus :

"The brief facts giving rise to this order are that applicants have filed a claim case against the respondents for compensation amount of death of Tirloki who died on 25/11/2016 due to suffocation as fire arose out in the factory and during course of employment of respondents. The respondents have not come forward despite service of notices and they refused to take notice and were proceeded ex-parte on 16/05/2017. Thereafter, final order was passed vide order dated 10/07/2017. Notices were sent to respondents for depositing compensation amount and now the respondents have come forward and moved the present application.

I have heard both the parties and perused the record.

From the scrutiny of the file it is evident that the registered notice sent to respondents received back un-served with the postal report that receiver is not found. Further by hand notice was sent which the respondents have refused to take and the respondents were proceeded ex-parte. Thus, it is proved that proceedings of the case were well in the knowledge of respondents. The respondents could not rebut the fact that duly summons were sent to them but they have not received