Gujarat High Court

Gopal Raman Nayar vs Vanaben Dineshkumar Bhuriya on 20 September, 2021

Bench: A.S. Supehia

      C/SCA/5009/2020                                JUDGMENT DATED: 20/09/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5009 of 2020
                                  With
         MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2019
            In R/SPECIAL CIVIL APPLICATION NO. 5865 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                     Sd/-
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                              NO

2      To be referred to the Reporter or not ?                            NO

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                                  NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution                NO
       of India or any order made thereunder ?

================================================================
                            GOPAL RAMAN NAYAR
                                   Versus
                        VANABEN DINESHKUMAR BHURIYA
================================================================
Appearance:
MR YOGI K GADHIA(5913) for the Petitioner(s) No. 1
MR.KARNA H DHOMSE(6684) for the Respondent(s) No. 1,2
NOTICE SERVED(4) for the Respondent(s) No. 3
================================================================
     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 20/09/2021
                      ORAL JUDGMENT

1. With the consent of the learned advocates appearing for the

respective parties, the present writ petition is taken up for final hearing.

2. Rule. Learned advocate Mr.Karna Dhomse waives service of

notice of rule for the respondent nos.1 and 2.

3. In the present writ petition, the petitioner inter alia has prayed for

C/SCA/5009/2020 JUDGMENT DATED: 20/09/2021

the following relief:-

"8(A) This Hon'ble Court may be pleased to issue an appropriate writ, order and/or direction to quash and set aside the order passed by the Ld.Comissioner, Vadodara in Misc. Application No.04/2019 dtd. 28.11.2019."

4. The brief facts of the case are as under:-

4.1. Initially the claimant had filed WC Application No. 34 of 2013

against the petitioner herein, inter alia, stating that the victim was

working with the petitioner as a Driver on Truck No. GJ-06-W-8145 and

he met with an accident on 19.05.2013, due to which he passed away. At

the relevant time, as the petitioner had insurance, the petitioner informed

the insurance company about the same and was under a bona fide

impression that the claim will be settled. Moreover, the petitioner also

gave all the necessary monetary and other help to the original claimant. In

the workman compensation application, the claimant has joined the

present applicant in his individual capacity, which could not have been

done in the facts of the case. It is the case of the petitioner that he had

received a notice of the WC Application, but he was under a bona fide

impression that as the insurance policy is taken, the same would be taken

care of. It is in this manner that an ex-parte judgment qua the petitioner

came to be passed in favour of the original claimant, whereby the

Commissioner held the petitioner and Insurance-Company jointly and

severally liable for compensation of Rs.8,73,880/- along with 12%

C/SCA/5009/2020 JUDGMENT DATED: 20/09/2021

interest and Rs.5,000/-towards funeral expenses and Rs.2,500/-towards

cost. The said part is already complied with by the Insurance Company.

The Commissioner further directed the present petitioner to deposit 50%

penalty by way of the said judgment.

4.2. The Insurance Company has already deposited the compensation

along with interest before the Commissioner. However, the claimant

preferred WC(Misc.) App No. 40/2016, inter alia, claiming 50% penalty

to the tune of Rs.4,36,940/-, interest of Rs. 1,61,667.80/-, funeral

expenses at Rs.5,000/-, cost at Rs.2,500/- and Rs.1000/- towards the cost

of Misc. Application. The Commissioner allowed the said application in

favour of the claimant and directed that the recovery certificate be issued

against the petitioner to the tune of Rs. 4,36,940/- along with 12% interest

from the date of filing of Misc. Application along with Rs.7,500/-towards

funeral expenses and cost.

4.3. Thereafter, the claimant filed Review Application No.02 of 2018 in

Misc. Application No.40 of 2016 inter alia praying that he is entitled to

interest on penalty from the date of filing of the main WC Application

and not from the date of filing of the Misc. Application and requested for

necessary changes in the order. The Commissioner allowed the said

application and directed for issuance of recovery certificate to the tune of

Rs.4,36,940/- along with 12% interest from the date of filing of WC

C/SCA/5009/2020 JUDGMENT DATED: 20/09/2021

Application No.34/2013 and Rs.7,500/- towards funeral expenses and

cost.

5. Learned advocate Mr.Yogi Gadhia appearing for the petitioner has

submitted that the petitioner came to know about the above orders only

when he received letter from Taluka Development Officer (TDO),

Vadodara inter alia directing the petitioner to deposit the amount vide

letter dated 23.01.2019. The petitioner thereafter filed the delay

condonation application being Misc. Application No.04/2019 on

05.02.2019. He has submitted that after that, the petitioner approached

this Court by way of filing Special Civil Application No. 5865 of 2019

challenging the recovery certificate and letters issued by TDO, Vadodara

and the Court vide its order dated 20.03.2019 granted stay subject to

depositing the amount of penalty within a period of one week and

accordingly, the petitioner had deposited the said amount along with its

letter dated 25.03.2019.

5.1 Learned advocate Mr.Yogi Gadhia for the petitioner has submitted

that the claimant has already received the principal amount along with

interest from the insurance company to the tune of Rs.11,60,638/-. He has

submitted that the petitioner is saddled with the liability of penalty as

well as interest on penalty.

       C/SCA/5009/2020                              JUDGMENT DATED: 20/09/2021



5.2      Learned advocate Mr.Yogi Gadhia for the petitioner has submitted

that subsequent to passing of the judgment in the main WC application,

the claimant preferred Misc. Application No. 40/2016 for issuance of

recovery certificate. In the said application, the claimant sought for

interest on the amount of penalty as well as funeral expenses and cost. He

has submitted that the said application also came to be allowed ex-parte,

whereby the Commissioner granted interest on the amount of penalty

from the date of filing of the said Application. It is submitted that there is

no provision under the law to award interest on amount of penalty.

Moreover, it is submitted that in execution proceedings, no relief can be

granted, which is not granted in the main judgment/decree, yet the said

order came to be passed which is void ab initio. It is submitted that the

petitioner drew the attention of the Commissioner to the same in its

written submissions however, the Commissioner rejected the delay

condonation application.

5.3. Learned advocate for the petitioner has submitted that the

provisions under Section 4A of the Employee's Compensation Act, 1923

do not provide any payment of interest on penalty and hence, the orders

dated 17.01.2018 passed in WC Misc. Application No.40 of 2016 and the

order dated 13.04.2018 passed in Review Application No.2 of 2018 are

de hors the provisions of law and hence, the delay condonation

C/SCA/5009/2020 JUDGMENT DATED: 20/09/2021

application filed by the present petitioner should have been allowed. In

support of his submissions, he has placed reliance on the judgment of the

Supreme Court in the case of Sarup Sinh vs. Union of India, (2011) 11

SCC 198.

6. Per contra, learned advocate Mr.Karna Dhomse for the

respondents, on instructions, has submitted that the respondent-workman

is ready and willing to forgo the interest amount awarded on the penalty.

He has submitted that the rest of the award may not be interfered looking

to the conduct of the petitioner as he did not appear in any of the

subsequent proceedings, though he was aware and the notices were

served.

7. Since the learned advocates appearing for the respective parties

have submitted that the issue can be resolved over here by passing

appropriate orders as the respondent-workman is ready and willing to

forgo the penalties.

8. I have heard the learned advocates appearing for the respective

parties.

9. So far as the contention raised by the present petitioner with regard

to the original award against the present petitioner, this Court is of the

C/SCA/5009/2020 JUDGMENT DATED: 20/09/2021

opinion that the same does not require any interference and the same has

been precisely passed by the Labour Court. The petitioner has not cared

to appear before the Labour Court despite the service of notice. With

regard to the impugned order rejecting the application for condonation of

delay is concerned, this Court is of the considered opinion that the orders

wherein the interest on penalty is awarded after awarding 50%

compensation in view of the provisions of Section 4A of the Workmen

Compensation Act, 1923 (for short "the WC Act") since the same is

erroneous as no such provision is prescribed under the statute, which

stipulates awarding of interest on the penalty amount. The said order is

required to be set aside. The provisions of Section 4A of the WC Act

reads as under:-

"4A Compensation to be paid when due and penalty for default. (1) Compensation under section 4 shall be paid as soon as it falls due.

(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.

(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent. per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent. of such amount, shall be recovered from the employer by way of penalty."

       C/SCA/5009/2020                            JUDGMENT DATED: 20/09/2021



9.1      A perusal of the provisions of Section 4A of the WC Act reveals

that the employer is fastened with the liability of payment of

compensation and in the event , the same is not paid, a penalty of 50%

prescribed under Section 4A(3) of the WC Act. There is no stipulation for

granting of interest on the penalty amount in the Rule 4A.

10. Thus, if the impugned order and award is sustained, the same

would set a bad precedent as the Court has awarded interest on penalty

which is not prescribed under the provisions of law. Thus, the order, by

which the interest on penalty, is passed is de hors the Rules. As the

respondent workman has already agreed for waiver of interest on penalty,

the impugned order with regard to payment of 50% of penalty is not

interfered. By the order dated 28.03.2019 passed in the Special Civil

Application No.5865 of 2019, the petitioner has already deposited an

amount of Rs.4,36,940/- before the Registry of this Court.

11. Registry is directed to handover the demand draft to the learned

advocate Mr.Karna Dhomse prepared in the name of legal heir of the

original workman Vanaben Dineshkumar Bhuriya with accrued interest if