Delhi High Court
Delhi Development Authority & ... vs Raju & Anr. on 27 October, 2017
* 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.
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
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
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
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
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
