* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.327/2016
% 27th October, 2017
DELHI DEVELOPMENT AUTHORITY & ANR. ..... Appellants
Through: Ms. Rukmini S. Bobde,
Advocate.
versus
RAJU & ANR. ..... Respondents
Through: Mr. R.K. Nain, Advocate for
respondent No.1.
Mr. Akashdeep, Advocate for
respondent No.2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal under Section 30 of the Employee's Compensation Act, 1923 (hereinafter referred to as 'the Act') is filed against the order of the Employee's Compensation Commissioner dated 4.3.2016 by which the Employee's Compensation Commissioner has awarded an amount towards penalty under Section 4-A of the Act.
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2. It is argued on behalf of the appellant no.1, and who was the respondent no.1 before the Employee's Compensation Commissioner, that the claim application originally filed was allowed by the judgment dated 16.7.2013 passed by the Employee's Compensation Commissioner and this judgment of the Employee's Compensation Commissioner dated 16.7.2013 was upheld by this Court vide its judgment dated 25.4.2014 in FAO No.362/2013. It is argued that in the original application filed under Section 22 of the Act which was decided in terms of the judgment dated 16.7.2013, there was a prayer made for grant of penalty under Section 4-A of the Act and for which purpose attention of this Court is drawn to page 18 of the paper book which contains para 6 of the original application showing that penalty under Section 4-A of the Act was claimed with the original application but this relief was however not granted by the judgment dated 16.7.2013. It is argued that the respondent no.1 herein, and who was the claimant who succeeded as per the judgment dated 16.7.2013 filed no appeal against the judgment dated 16.7.2013 denying the grant of penalty under Section 4-A of the Act, and therefore, it is argued that the judgment dated 16.7.2013 becomes final FAO No.327/2016 Page 2 of 6 between the parties and as per which since no penalty under Section 4- A of the Act was granted, therefore, in terms of Section 11 Explanation V CPC the prayer under Section 4-A of the Act is deemed to be dismissed in terms of the judgment dated 16.7.2013. It is argued that once the claim for penalty has been dismissed then in view of the Explanation V to Section 11 CPC, no fresh application, being the subject application/petition decided by the impugned order dated 4.3.2016 could be filed by the respondent no.1/claimant before the Employee's Compensation Commissioner for grant of penalty under Section 4-A of the Act.
3. In my opinion there can be no quibble to the argument urged on behalf of the appellants as admittedly prayer under Section 4-A of the Act for penalty was made in the original application under Section 22 of the Act which was filed by the respondent no.1/claimant, and that prayer was not granted in terms of the judgment dated 16.7.2013. Hence once a relief prayed is not granted, the same is deemed to be rejected as per Section 11 Explanation V CPC, and since the judgment dated 16.7.2013 has become final, this issue of non-grant of penalty is res judicata whereby the respondent FAO No.327/2016 Page 3 of 6 no.1/claimant is not entitled to penalty under Section 4-A of the Act. Once that is so, the respondent no.1/claimant could not have filed a fresh application again for the grant of penalty under Section 4-A of the Act and which has been allowed in terms of the impugned order dated 4.3.2016 passed by the Employee's Compensation Commissioner.
4. This Court is receiving a series of orders which are passed by the Employee's Compensation Commissioners wherein Employee's Compensation Commissioners are entertaining a second application/petition under Section 22 of the Act for grant of penalty although the issue of penalty must necessarily be examined and decided when an application under Section 22 of the Act is firstly filed. On one cause of action, once various reliefs can be claimed, all reliefs have to be claimed in one original application under Section 22 of the Act and once the original application under Section 22 of the Act is decided, then, Employee's Compensation Commissioner ought not to entertain fresh original applications only for grant of penalty under Section 4-A of the Act otherwise this is against the direct mandate not only of Explanation V to Section 11 but also of Order II FAO No.327/2016 Page 4 of 6 Rule 2(3) CPC which states that if a particular relief if is not asked for, then a person who does not ask for the reliefs although he was entitled to he is then barred because of Order II Rule 2(3) CPC from filing a fresh claim with respect to the relief which ought to have been prayed in the original proceedings but were not prayed. Therefore, a copy of this order be sent to the Law Secretary to the Government of NCT of Delhi to be circulated among all the Commissioners, acting under the Employee's Compensation Act that after the decision of the main case under Section 22 of the Act, no further and subsequent application should be entertained for grant of penalty under Section 4-A of the Act inasmuch as penalty under Section 4-A of the Act should be prayed for in the original proceedings filed under Section 22 of the Act and such second application seeking penalty under Section 4-A of the Act should not be entertained more so when this relief was specifically prayed for in the first claim petition, and was not granted by the judgment which decided the original/first claim petition. The affidavit of compliance be filed by the Government of NCT of Delhi within a period of eight weeks from today. The matter be listed in the Court on FAO No.327/2016 Page 5 of 6 3rd January, 2018 for filing the compliance report of the above said directions.
5. Appeal is accordingly allowed in terms of aforesaid observations and the impugned order dated 4.3.2016 is set aside. Parties are left to bear their own costs. The amount deposited before the Employee's Compensation Commissioner by the appellant no.1 be now released to the appellant no.1 within four weeks from today.
OCTOBER 27, 2017 VALMIKI J. MEHTA, J
Ne
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