IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939 WP(C).No. 5060 of 2010 PETITIONER:

JOSE PHILIP, S/O. PHILIP, THEKKANATTU HOUSE, KIDANGOOR, KOTTAYAM DISTRICT.

BY ADVS.SRI.MATHEW JOHN (K)

SRI.AJEESH K.SASI RESPONDENTS:

1. P.G. PRASAD, S/O. GOPALAN, PUTHUSSERIL HOUSE, THOTTADA POST, VAIKOM.

2. SASIKUMAR, S/O. SAHADEVAN, VAKKATKULAM, PALLOM, CHATHANOOR, MATTOOR 2ND VILLAGE, ALATHUR TALUK.

3. THE COMMISSIONER FOR WORKMENS, COMPENSATION, (DEPUTY LABOUR COMMISSIONER), KOTTAYAM.

R1 BY ADV. SRI.LIJI.J.VADAKEDOM R3 BY ADV. GOVERNMENT PLEADER SMT.A.C.VIDYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

EL WP(C).No. 5060 of 2010 APPENDIX PETITIONER(S)' EXHIBITS P1 A TRUE COPY OF THE LETTER DATED 3.10.2007 BY MR.SHIBY ALEX KANNAMPADAM P2 A TRUE COPY OF JUDGMENT DATED 12.7.2006 IN WCC.24/2000 P3 A TRUE COPY OF THE REVIEW PETITION DATED 15.12.2007 BY THE PETITIONER P4 A TRUE COPY OF THE AFFIDAVIT AND PETITION SUBMITTED BY THE PETITIONER DATED 15.12.2007 P5 A TRUE COPY OF THE JUDGMENT DATED 12.6.2009 BY THE 3RD RESPONDENT IN WCC.24/2000 P6 A TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER P7 A TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 17.8.2009 BY THE PETITIONER RESPONDENT(S)' EXHIBITS R1(A) THE CERTIFIED COPY OF THE ORDER SHEET IN WCC.24/2000 BEFORE THE COMMISSIONER FOR WORKMEN'S COMPENSATION COURT TRUE COPY P.S. TO JUDGE EL A. MUHAMED MUSTAQUE, J.

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W.P. (C) No.5060 of 2010 ------------------------------------

Dated this the 3^rd day of January, 2018

J U D G M E N T

This writ petition is filed challenging Ext.P2 judgment of the Commissioner for Workmen's Compensation under the Workmen's Compensation Act, 1923.

2. The petitioner along with the 2^nd respondent was directed to pay compensation amount to the 1^st respondent, an applicant before the Commissioner, along with interest. The 1^st respondent sustained injury while climbing a coconut tree. The 2^nd respondent is the toddy shop licensee. According to the 2^nd respondent-licensee, the petitioner was given the land on rent. The petitioner denied the occurrence of accident. The petitioner's main challenge in this writ petition is that the judgment was passed without giving an opportunity to him to contest the case.

3. It is to be noted that under Section 30 of the Workmen's W.P.(C) No.5060/2010 2 Compensation Act, the petitioner has an appellate remedy. He has not invoked the appellate remedy to avoid pre-deposit.

4. However, learned counsel for the petitioner submits that this writ petition is maintainable since a decision has been taken without giving a fair opportunity to the petitioner. Learned counsel relies on the judgment of the Supreme Court in Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning & Weaving Mills Ltd. (2005 (2) KLT 978).

5. No doubt, this writ petition would be maintainable if the decision making process suffers any infirmity. However, in this case, the petitioner appeared through his counsel. In the impugned order itself, it is stated that the petitioner had not chosen to cross-examine the applicant, the 1^st respondent. The petitioner filed a review. The review was also dismissed.

In such circumstances, this Court cannot find any fault with the procedure adopted by the Commissioner. However, it is to be noted that the judgment has been passed fastening joint liability. The petitioner appears to have deposited 50% of the principal amount. Certainly, the Commissioner, while recovering the compensation amount, shall ensure that the balance amount is W.P.(C) No.5060/2010 3 recovered from the 2^nd respondent-Sasikumar. It is only in circumstances where it is not possible to recover the balance amount from Sasikumar that further proceedings against the petitioner shall be initiated under the Revenue Recovery Act. It is made clear that the petitioner as well as the 2