M.L. Joshi, J.
1.This is a petition under Article 226 and 227 of the Constitution of India by one Kalyansingh wherein he has prayed for quashing the order of the Workmen's Compensation Commissioner Jodhpur. The non-petitioner No. 2, dated 30th of April, 1973, & his award dated 30th of November, 1973, under the Workmen's Compensation Act and further prayed to send the case back to the non-petitioner No. 2 to decide it after giving applicant an opportunity of being heard.
2. The facts which are relevant and material for the disposal of this petition are as follows: Non-petitioner No. 1 Dhannaram made an application to the Workmen's Compensation Commissioner alleging that his son Mohanlal was in employ of Kalyansingh the petitioner. Dhannararn alleged in his application that. Mohanlal received some injuries in the course of his employment on 20th of February, 1972 as a result of which he succumbed to the injuries on 12-3-72 in the M.G. Hospital, Jodhpur. Dhannaram put in a compensation claim before the Workmen's Compensation Commissioner for a sum of Rs. 7000/-. The Workmen's Compensation Commissioner issued notices on two occasions to Kalyansingh but the same could not be personally served upon him. The Commissioner then ordered for substituted service and simultaneously issued a notice which was sent through registered post. The notice was also published in the 'Prajasewak' a weekly newspaper of Jodhpur in its issue dated 13th of Sept., 1972. The notice sent under registered cover was however returned with the remark 'left without address.' The learned Commissioner held the service sufficient and proceeded with the case ex parte.. after taking evidence he allowed non-petitioner No. 2 Dhannarams claim for a sum of Rs. 7000/- by his order dated 30th of November, 1972 and directed Kalyansingh to deposit the sum of Rs. 7000/- in his court as compensation for disbursement amongst the heirs of deceased Mohanlal. This order was served upon Kalyansingh petitioner on 2-2-73. It is alleged that on service of this notice Kalyansingh engaged a counsel and got the record of the case inspected and thereafter moved an application under Order 9 Rule 13 CPC on 13th of February, 1973 before the Workmen's Compensation Commissioner inter alia on the ground that no personal service was effected upon him and further substituted service was ordered although condition for issuance of such service did not exist so the same was bad in law. He, therefore, prayed for setting aside the ex parte order as well as the award and prayed for rehearing of the claim application after giving opportunity to him. The application under Order 9 Rule 13 CPC was resisted by Dhannaram. The learned Commissioner after hearing the parties dismissed the application of Kalyansingh petitioner by his order dated 30th of April, 1973.
3. Being aggrieved, petitioner Kalyansingh moved an application designating it as SB Civil Revision under Section 115 CPC and in the alternative Civil Writ Petition under Articles 226 and 227 of the Constitution of India. The office raised objection wherein it demanded from the learned Counsel for Kalyansingh to state precisely as to whether his petition was a revision application under Section 115 CPC or a petition under Article 227 of the Constitution. The petitioner did not meet the office objection therefore the case was laid before Lodha J. as a defective case on 21st of September, 1973. The learned Counsel for Kalyansingh on that day too was unable to make up his mind whether the case was to be treated as a writ petition or a revision petition. Lodha, J. therefore recorded the order saying that it may be put up as and when the learned Counsel for Kalyansingh makes an application as to how he wanted the case to be treated. The case came again before Gattani J. on 15-10-73. On that day Mr. M.D. Calla, learned Counsel for Kalyansing, expressed his desire that the case be treated as revision under Section 115 CPC. It was accordingly ordered and the case was registered as a revision application under Section 115 CPC. The case then came up before Jain J. for hearing on 3-1-75. On a preliminary objection being asides on behalf of Dhannaram, Mr. Calla conceded that revision application was not maintainable. He, however, made an application that his case be treated as petition under Article 227 of the Constitution. Jain, J. declined to treat the application as under Article 227 of the Constitution observing that no indulgence can be granted as the petitioner and his counsel did not move in the matter in a correct manner although considerable time was allowed to them to take resort to right course. While declining the prayer of the learned Counsel for the petitioner for treating his application under Article 227 Jain J., took notice of the preliminary objection of the learned Counsel for Dhannaram that there was a remedy by way of appeal prescribed under the Act and the petitioner could have moved by way of appeal after claiming benefit of Section 5 of the Limitation Act. Consequently Jain J. in view of all the facts and circumstances declined to accept the prayer of the petitioner to treat his. application as under Article 227 and dismissed the revision application.
4. The petitioner has now again moved this Court under Article 226 inter alia alleging that deceased Mohanlal was never in his employ and that Dhannaram had brought a false claim under the Workmen's Compensation Act and that the Workmen's Compensation Commissioner had allowed the claim of Rs. 7000/- against the petitioner without service of notice being effected upon him. It has been contended in the Writ Petition that the petitioner was never served personally and that the substituted service made in the Praja Sewak was not sufficient. The petitioner, therefore, has prayed for quashing the order of the Workmen's Compensation Commissioner refusing to set aside ex parte order and the award.
5. learned Counsel for the petitioner has contended before me that the order dated 30th of April, 1973 refusing to set aside the ex parte order is bad in law as the petitioner was not served personally and that the substituted service was illegal as the conditions for ordering the substituted service did not exist and therefore the substituted service could not have been ordered by the Workmen's Compensation Commissioner. It has also been contender that the petitioner could not know the date of hearing mentioned in the notice published in the Praja Sewak as he did not come across the Praja Sewak weekly paper.
6. The non-petitioner in his return has traversed one and all the allegations made in the petition and has supported the validity of the impugned order.
7. Mr. Ramsingh Rathore, learned Counsel for the non-petitioner has raised a preliminary objection that the petitioner had previously made at) application under Section 115 CPC and in the alternative made, a prayer for eating it as one under Article 227 but the same having been disallowed this Court should not entertain the application under Articles 226& 227 any more
8. I have heard the learned Counsel for the parties on this objection and after hearing them I am of the opinion that there is merit in the preliminary objection. Indubitably the petitioner has challenged the order of the Workmen's Compensation Commissioner dated 30th of April, 1973, by an application designated as revision application and in the alternative application under Articles 226 and 227 of the Constitution. The office had raised objection calling upon the petitioner to state precisely as to whether he wanted J. is petition to be treated as revision application or a petition under Article 227 the petitioner did not meet with the office objection and, therefore, the office laid the case as the defective case before Lodha J., on 21.9.73. On that day also the learned Counsel for the petitioner could not make up his mind as to whether he would like to treat his application as a writ petition or a revision petition. The learned Judge, therefore, ordered that the case be put as and when the counsel for the petitioner makes an application as to how he wanted his case to be treated. When the case came up before Gattani J. on 15.10.73, counsel for the petitioner prayed that the application be treated as revision application under Section 115 C.P.C. The case was therefore ordered to be treated as revision and was registered as such. The case then came up before Jain J. on 3.1.75 on which date a preliminary objection was raised that the revision application was not maintainable. The learned Counsel for the petitioner conceded the preliminary objection but moved an application for allowing him to treat his application as petition under Article 227. Jain J. after hearing counsel for both the sides declined to grant the prayer and dismissed the revision application. The petitioner now again wants to go back upon the order by filing this fresh writ petition which was refused to be entertained by Jain J.Jain, J. had passed orders declining the petitioners application Under Article 227 looking to the conduct of the petitioner and the facts of the case and also the existence of alternative remedy of appeal. His order in this behalf is a speaking one and clearly indicates that Jain J. was not prepared to entertain the petitioner's application under Article 227 of the Constitution and admit the same. The petitioner has now come before me after a period of about one year and 9 months to challenge the same order of the Commissioner dated 30th of April, 1973. The order of Jain J. refusing to treat the application of the petitioner as an application under Article 227 is tantamount to rejection of his application under Article 227 after applying judicial mind by a speaking order. In such circumstances I am not inclined to entertain this application under Articles 227 and 226 based on the same facts which were before Jain J. as in my view it would be an act of judicial impropriety. One cannot lose sight of the fact that the remedy under Articles 226 and 227 is of a discretionary nature and has to be exercised in very sparing circumstances. From the facts narrated above and looking to the conduct of the petitioner in my opinion, the present is not a fit case to invoke Article 227 of the Constitution. learned Counsel for the petitioner has referred me to some cases on the scope of Article 227 and urged before me that the scope of Article 227 is wider than the scope of Section 115 of the Code of Civil Procedure. I need not go into all the individual cases cited before me bat it will suffice to refer to a Bench decision of this Court reported in Mewar Textile Mills Bhilwara V. Girdharisingh 1956 ILR (6) Raj. 1077. In that case their Lordships have extracted a passage from a Supreme Court judgment in Wariyamsingh V. Amarnath AIR 1959 SC 215 laying down the rule regarding the scope of Article 227. That passage may be extracted as under:
We are clearly of opinion on general principles that this superintendence does not mean 'that the High Court is an appellate court from the decisions of such tribunals or that its duty is to correct any mere errors of law or fact committed by them in the exercise of their jurisdiction. We also think that the superintending jurisdiction must not be considered to be identical with our ordinary revisional jurisdiction from the decisions of the courts subordinate to the High Court. The kind of jurisdiction which is entrusted under this Article to a High Court being the highest Court within a State is in the nature of a special responsibility an extra-ordinary power and. it should be exercised with extraordinary care and circumspection While therefore we should guard ourselves against being placed in the position of an appellate or revisional court so as to correct any mere error s of law or fact committed by courts or tribunals, within our territorial jurisdiction, it should be remembered at the same time that it is our duty to see that such courts and tribunals act within the due bounds of their authority and that they exercise such authority in the manner prescribed by law and not arbitrarily or capriciously.
From the above observations it will appear that the jurisdiction under Article 227 cannot be equated with the revisional jurisdiction. It is extraordinary jurisdiction which has to be exercised with extra ordinary, care and circumspection. The conduct of the party has a great bearing while exercising such jurisdiction and looking to the conduct of the party the petitioner cannot claim as of right for invoking the extra ordinary jurisdiction of this Court. As stated earlier, petitioner by his conduct has disentitled himself to invoke the extra ordinary jurisdiction in the facts and circumstances of this case.
9. Even otherwise the impugned order of the Workmen's Compensation Commissioner cannot be taken to be beyond the bounds of his authority on the ground that requirements of 0.5 Rule 20 CPC for the substituted service were not complied with. It has been submitted that neither an application was made nor affidavit filed that the petitioner had been evading the service. The Workmen's Compensation Commissioner had dealt this point elaborately. The Workmen's Compensation Commissioner has observed that the summons of the petition containing the claim were sent twice to the petitioner at his residence but the same could not be served personally as no body in the house accepted the summons. The summons were then sent by registered post which were returned unserved with the remark that the petitioner had left the place without leaving any address. The Workmen's Compensation Commissioner on these facts and circumstances was satisfied that the petitioner was evading the service. It is true that no application was made by Dannaram that the petitioner was evading the service but the Workmen's Compensation Commissioner was satisfied on the materials on record although strict requirement of Order 5 Rule 20 CPC were not satisfied but at the same time it was for the Workmen's Compensation Commissioner to be satisfied. He had jurisdiction to order the substituted service. As the Workmen's Compensation Commissioner had jurisdiction to order substituted service & the sufficiency of circumstances with which he was satisfied for ordering substituted service cannot be said to be with out any basis, the order of substituted service cannot be said to be wholly arbitrary or capricious so as to invoke extra ordinary jurisdiction under A. 226 or 227 to interfere with the same. There were circumstances and facts before him on which he was satisfied to order the substituted service & insufficiency of such circumstances cannot be canvassed to invoke the extra ordinary jurisdiction on the ground that he had travelled beyond his bounds. The Workmen's Compensation Commissioner has dealt with this aspect elaborately while rejecting the application under Order 9 Rule 13 CPC and I am not inclined to hold that there is any jurisdictional error or any such error which would call for invoking extra ordinary jurisdiction.
10. The contention that there was violation of principles of natural justice has also no merit in it. The ex parte order was passed under the rules laid down in the Code of Civil Procedure. The Workmen's Compensation Commissioner issued notices to the petitioner at his residential address on more than one occasions. A registered postal notice was also sent which returned unserved with the remarks that Kalyansingh had left without any address. It was in these circumstances that a notice was issued in a weekly paper of Jodhpur. Thus there is no scope for importing the principles of natural justice. Looking to the totality of the circumstances, the order of the Workmen's Compensation Commissioner does not call for interference in the exercise of extra ordinary jurisdiction.
11. There is no force in this petition and the same is dismissed. The parties are however left to bear their own costs;