BHARAT CARRIERS LTD. Vs. FAYEZ SEKH AND OTHERS

JUDGEMENT

(1.) The present appeal filed under Sec. 30 of the Employee's Compensation Act, 1923 impugns the order dated 27.11.2012 passed by the Commissioner imposing a penalty of 50% under Sec. 4A of the Employee's Compensation Act, 1923.

(2.) The only argument urged on behalf of the appellant/employer is that the claim of penalty in the main case was in fact made by the dependants of the workman, and who were the applicants before the Commissioner in the main compensation claim, but that claim petition was allowed in terms of the order dated 10.8.2010 without allowing the prayer of penalty, and therefore, it is argued that this prayer of the applicants/dependents which is now allowed by the impugned order dated 27.11.2012 of awarding penalty amount is illegal because this prayer for awarding the penalty amount is deemed to have been rejected in accordance with the principles akin to Explanation V of Sec. 11 Civil P.C. in the first order dated 10.8.2010 itself and consequently a subsequent application under Sec. 4A for penalty did not lie.

(3.) The argument urged on behalf of appellant appeared in the first blush to have some substance because the impugned order of penalty dated 27.11.2012 has been passed after the main order dated 10.8.2010 awarding compensation was passed and which does not show awarding of any penalty, though such prayer was made, and thus which in a way can be said to have deemed to be rejected. However, on a deeper examination of the case it is found that really the order which has now been passed on 27.11.2012 is pursuant to the proviso to sub-Section 3 of Sec. 4A of the Employee's Compensation Act as per which penalty cannot be imposed on the employer unless first a specific show-cause notice is given to the employer for showing cause as to why penalty be not imposed i.e the employer is entitled to show that he is not responsible for delay in payment of compensation as required by law under 4A(1) and with respect to which aspect there was no FAO 98/2013 Page 3 of 4 show cause notice in the original proceedings in which compensation was claimed and awarded. In law it is only on the failure of the employer to show cause as to why the penalty order should not be passed i.e the justification which is sought to be given is not accepted, that the penalty order can thereafter be passed. Accordingly, since while disposing of the main compensation case vide the order dated 10.8.2010 there were no proceedings which are shown to have taken place under proviso to sub-Section 3 of Sec. 4A, therefore it cannot be said that the issue of penalty was in fact decided in the main original compensation proceedings/petition which was decided on 10.8.2010.