PAWAN Vs. SANDHYA THAKUR

JUDGEMENT

(1.) This Miscellaneous Appeal is filed by the Employer under Sec. 30 of the Workmen's Compensation Act, 1923 being aggrieved of award dtd. 16/9/2014 passed by learned Commissioner for Workmen Compensation-cumLabour Court, Jabalpur in Case No.170/WC Act/2004/Fatal on a singular ground that no order for imposing penalty could have been passed without giving a separate notice to the present appellant. Learned counsel for the appellant places reliance on a decision of the High Court of Judicature at Madras decided on 27/1/2004 in C.M.A No.41/1996 Management of M/s.Mahalakshmi Builders versus A.Govindaswamy wherein it is held that if the Commissioner does not issue notice and provide an opportunity to the Employer before directing it to pay the penalty then the Commissioner would be failing in his duty to follow the procedure prescribed under the law. He also places reliance on the judgment of Hon'ble the Supreme Court in Ved Prakash Garg versus Premi Devi & Others AIR 1997 SC 3854 wherein it is held that without giving notice, no amount of penalty can be imposed on the Employer. He lastly places reliance on the judgment of a Coordinate Bench of this Hon'ble High Court in M/s.Shri Ram Dal Mills & Others versus Rama 2003 (3) M.P.H.T 269 to bolster his contention.

(2.) Reliance is placed by learned counsel appearing for respondent Nos.1 to

(3.) and learned counsel for the respondent No.4 on the judgment of the Himachal Pradesh High Court in Telecom (General Manager) versus Vidya Devi & Others II (2006) ACC 65 wherein it is held that it is not necessary that a notice be issued to the Employer. The Commissioner may frame an issue whether the claimant is entitled to penalty or not. This itself would amount to giving sufficient opportunity to the Employer. Reliance is also placed on the judgment of Hon'ble the Supreme Court in Oriental Insurance Company Limited versus Siby George & Others in Civil Appeal No.5669 OF 2012 (Arising Out of S.L.P (C) No.9516/2010) decided on 31/7/2012 wherein it is held that if in the opinion of the Commissioner, there is no justification for the delay then the Commissioner may direct that the Employer shall in addition to the amount of arrears and interest thereon pay a further sum not exceeding 50% of such amount by way of penalty. In Oriental Insurance Company Limited versus Siby George & Others (supra), the decision of Four Judges Bench of Hon'ble the Supreme Court in Pratap Narain Singh Deo versus Shrinivas Sabata & Another AIR 1976 SC 222 was referred wherein it is held that the Employer becomes liable to pay compensation as soon as the personal injury is caused to the Workman by the accident, which arose out of and in the course of the employment. 3. After hearing learned counsel for the parties and going through the record, it is evident that earlier the case of the workmen was dismissed and thereafter the matter was remanded by the High Court vide order dtd. 7/8/2013. Non-Applicant No.1 (Appellant Herein) was proceeded ex-parte vide order dtd. 27/9/2013. Thus, the question, which arises for consideration is that when the Non-Applicant No.1 (Appellant Herein) remained absent and ex-parte, his application was accepted on cost of Rs.300.00 vide order dtd. 9/7/2014. Non-Applicant No.1 (Appellant Herein) was given an opportunity of leading evidence on 18/7/2014. On 4/8/2014, his counsel Shri Sharad Gupta had expressed that he did not wish to cross-examine any of the witnesses of the claimants. Shri Pawan Samdariya was examined and cross-examined.