M/S S.K. Mehta And Company Thr. ... vs Smt. Chetana W/O Hivaraj Neware ...
2017 Latest Caselaw 7518 Bom

                                                                              FA209.17.odt

                                              1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                          FIRST APPEAL NO.209/2017

 APPELLANT  :-                 M/s S.K. Mehta and Company 
                               through its partner 
                               Hot Mix Plant, Surgaon at Post 
                               Surgeon Kuhiphata, Umred Road, 
                               District : Nagpur.

                                     ...V E R S U S...
  
 RESPONDENTS :-  1.   Smt. Chetana w/o Hivaraj Neware 
                      aged about 27 years, Occupation -
                      Labour. 

                              2.  Ku. Sanjana D/o Hivraj Neware 
                                   aged 5 years, Occupation - Nil.

                              3.  Ku. Kesar D/o Hivraj Neware 
                                  aged about 2 years, Occupation - Nil.

                              4.  Ramdas s/o Nathhu Neware 
                                   aged about 51 years, Occupation - labour.

                              5.  Smt. Anjira w/o Ramdas Neware 
                            
                                  All respondents no.1 to 5 are 
                                  R/o village Putali, Post - Dongargaon 
                                  Tahsil Sadakarjuni, District - Gondia. 

                               6.  United India Insurance Company Limited
                                    Through its Manager, 5th floor, Gore Peth, 
                                    West High Court Road, Nagpur. 
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Shri S.A. Marathe, Advocate for appellant Shri R.A. Gupte, Advocate for respondent nos.1 to 5 Shri M.M. Kalar, Advocate for respondent no.6

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FA209.17.odt

CORAM:- S.B. SHUKRE, J.

DATED :-

25/09/2017.

ORAL JUDGMENT :

1. Heard. Admit on the following question of law :-

Whether the impugned judgment and order dated

01/12/2016 passed by the Commissioner, under Employees

Compensation Act is just and legal ?

2. Shri R.A. Gupte, learned Counsel waives notice for

respondent nos.1 to 5 and Shri M.M. Kalar, learned Counsel

waives notice for respondent no.6. Taken up for final hearing

forthwith by consent of parties. There is no need to call for record

and proceedings as the paper-book of the appeal contains all the

relevant documents.

3. After hearing learned Counsel for the parties, I am of

the opinion that in the present case the amount of compensation

became due and payable from the date on which the accident

occurred. I am of the further view that there has been delay in

FA209.17.odt

depositing this amount of compensation within the stipulated date

of accident from the date it became due on the part of the

appellant and respondent no.2 on whom the liability to pay

compensation has been fastened jointly and severally. Under

Section 4A (3) (a) and (b) of the Workmen's Compensation Act,

1923, if there is delay in payment of compensation, interest @12%

per annum simple on the amount of compensation can be granted

and the employer can also be directed to pay the penalty. In the

present case, resorting to these provisions of law, the Labour Court

has granted interest @12% per annum on the amount of

compensation. I do not think that such grant of interest in the

present case can be questioned as there has been some delay in

depositing the amount of compensation after it became due. But,

so far as the question of imposition of penalty is concerned, I see

that there is substance in the argument of learned Counsel for the

respondents that proviso to sub-section (3) (b) of Section 4A of

the Act lays down that no penalty can be imposed unless there is

reasonable opportunity of being heard granted to the employer to

show cause why it should not be so done as provided

under sub-section (3) (b). In the present case, reasonable

FA209.17.odt

opportunity of hearing was granted. But, the Labour Court has not

applied its mind to the facts of the case in order to arrive at a

finding as to whether or not there is any justification for the delay.

Recording of such a finding after due application of mind to the

facts available on record is mandatory in law before any penalty is

imposed upon the employer. This requirement of law has not been

followed in the instant case. The conclusion would be that, the

labour Court was not justified in imposing penalty without

application of mind and as such, this case would require

reconsideration on the limited aspect of imposition of penalty by

the learned Commissioner. The question of law is answered

accordingly.

4. In the result, appeal is allowed. Impugned order to the

extent it imposes penalty on the employer is quashed and set

aside. The matter is remitted back to the learned Commissioner for

a decision afresh on the limited question of imposition of penalty

under Section 4 A (3) (b) of the Workmen's Compensation Act,

1923. The learned Commissioner shall decide the matter after

hearing both sides and considering the facts of the case established

FA209.17.odt

on record, within one month from the date of appearance of the

parties. The parties shall appear before the learned Commissioner

on 30/10/2017. Parties to bear their own costs.

The amount deposited in this Court be transferred to

the Labour Court which shall hold it in its deposit till final disposal

of the matter.

S. B. SHUKRE, J

Joshi