Maruti Mahadev Patil vs State Of Gujarat
2021 Latest Caselaw 14802 Guj

     C/SCA/21176/2018                                     ORDER DATED: 22/09/2021



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 21176 of 2018
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                 MARUTI MAHADEV PATIL
                           Versus
                    STATE OF GUJARAT
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Appearance:
MR JITENDRA H SINGH(3199) for the Petitioner(s) No. 1
MR MAULIK J SHELAT(2500) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
TEJAS K MOTWANI(8499) for the Respondent(s) No. 5
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                     Date : 22/09/2021
                      ORAL ORDER

1) The present writ petition has been filed for the following prayers;

[B] Your Lordship may graciously be pleased to hold and declare that the Notices issued by the respondent No.2 at Annexure 'A' and 'B' in view of the amount deposited by the respondent No.4 becomes illegal, ineffective, improper, unconstitutional and against the provisions of law;

And Further

Your Lordships may be pleased to quash and set aside the Notices issued by the respondent No.2 at Annexure 'A' and Annexure 'B' by issuing suitable writ, order or direction;

[C] Your Lordships may be pleased to direct the respondent no. 3 to forthwith remove the seal affixed on the property of the petitioner identified as Vinayak Transport Co. Shed No. C/1-B, 2902, 4th Phase, GIDC, Vapi, 396 195 Taluka Vapi, District: Valsad and award suitable compensation to the petitioner;

[D] Pending admission, hearing and final decision of the petitioner, Your Lordship may be pleased tin the meantime to direct the respondent No. 2 to remove the seal on the property of the petitioner and further to stay the proceedings/ implementation upon Annexure 'A' and Annexure 'B' Notices issued by the respondent No. 2, as a measure of interim relief;

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      C/SCA/21176/2018                           ORDER DATED: 22/09/2021



2)     As the prayer clause would suggest that the petitioner has
challenged the Notice issued by the          Mamlatdar, Vapi dated

30.07.2018, whereby he has been asked to remain present pursuant to the order passed in recovery proceedings initiated by the respondent workman. It is the case of the petitioner that entire amount with interest have been paid by the Insurance Company i.e. the respondent No. 4 Ms/ Bajaj Allianz General Insurance Co. Ltd., and hence, nothing is required to be paid by the petitioner to the workman. He has also submitted that as per the order passed by the concerned Labour Court, Thane, the Insurance Company has deposited Rs.16,55,530/- and the respondent workman has received the same amount on 26.03.2017 and nothing is required to be paid.

Thus, he has submitted that the impugned show-cause notice issued by the Mamlatdar, Vapi is required to be quashed and set aside and the premise of the petitioner is required to be desealed as nothing is required to be paid by them and under the Insurance Policy, the entire amount is to be borne by the Insurance Company, including the penalty interest.

3) Learned advocate Mr. Singh has also placed reliance on the judgment of the Apex Court in the case of National Insurance Company vs. Prembhai Patel and Ors, in Appeal (Civil) No. 6476 of 1998 decided on 18.04.2005.

4) In response to the aforesaid submissions, learned advocate Mr. Tejas Motwani appearing for the respondent has submitted that petition is ill conceived as the petitioner has not challenged the award dated 31.03.2016 passed by the Commissioner for Workmen's Compensation and Judge, First Labour Court, Thane in Application No.278/C-54/2014. He has submitted that a specific order has been passed that the penalty of 25% is to be borne by the present

C/SCA/21176/2018 ORDER DATED: 22/09/2021

petitioner on the award of compensation. He has submitted that the respondent workman has received the entire amount from the Insurance Company except 25% penalty as ordered by the Labour Court, Thane. It is further submitted that in the writ petition, only the show cause notice has been challenged and it is always open for the petitioner to approach the Mamlatdar clarifying the position. Thus, he has submitted that the writ petition may not be entertained.

5) Learned advocate Mr.Mitul Shelat appearing for the respondent-Insurance Company, while placing reliance on the judgment of the Apex Court in the case of Ved Prakash Garg vs. Premi Devi and Ors. 1997 (8) SCC 1 has submitted that the Insurance Company is liable for paying the compensation to the workman under the Workmen Compensation Act and the penalty has to be borne by the employer. He has submitted that the Insurance Company has already satisfied the liability by paying the amount of compensation to the workman, however, the penalty of 25% has to be borne by the petitioner employer and if there is any misconception on behalf of the petitioner, the same can always be clarified by the concerned Mamlatdar, who has issued the notice. It is submitted that the petitioner did not care to appear before the Labour Court, Thane despite being served vide newspaper publication and hence, now it is not open for the petitioner to contest the show cause notice.

6) Learned advocate Mr. Shelat has further submitted that as per final directions issued by the Labour Court, it is the opponent no. 1 who has to pay 25% of penalty of compensation and having accepted the order, he cannot challenge the show-cause notice. Learned advocate Mr. Shelat has further has submitted reliance placed by learned advocate Mr. Singh on the judgment of the Apex Court is misconceived as the same arises of the claim under the Motor

C/SCA/21176/2018 ORDER DATED: 22/09/2021

Vehicle Act and not under the Workmen Compensation Act, in which, the liability is totally different.

7) I have heard the learned advocates appearing for the respective parties.

8) The facts, which are not in dispute are that by the judgment and order dated 31.03.2016 in Application No.278/C-54/2014passed by the Labour Court, Thane, the application filed by the workman was allowed seeking compensation by issuing following directions;-

" 1. Application is allowed.

2. Opp. No. 1 and insurer are directed to pay compensation of Rs.10,62,576/- (Rs. Ten lac sixty two thousand five hundred and seventy six only) jointly and severally to the applicant with 12% interest from one month from the date of accident till payment to the applicant.

3. The opp. no. 1 to pay 25% of an amount of compensation as a penalty to the applicant.

4. The opp. no. 1 and the insurer to pay medical expenses of Rs. 2,24,890/- (Rs. Two lac Twenty Four thousand eight hundred and ninety only) to the applicant jointly and severally.

5. Issue notice to Commissioner having jurisdiction where accident took place under Section 21 of the Employee's Compensation Act."

9) It is pertinent to observe that in paragraph No. 3, the Labour Court has observed that though the opponent was duly served vide newspaper publication but he did not care to appear and therefore, ex-parte award was passed against the opponent on 27.01.2015. Thus, the aforesaid award has become final and as per the direction no. 3, issued by the Labour Court it is the opponent no. 1 i.e. the petitioner, who has to pay 25% of the amount of compensation as a penalty. It is the specific case of the respondent-Insurance Company that they have already paid the amount of compensation as per their liability to the respondent No. 5 workman, however, 25% of the amount of penalty has to be borne by the petitioner as per the award.

         C/SCA/21176/2018                              ORDER DATED: 22/09/2021




10)        In this writ petition, the petitioner has for quashing and setting

aside the show cause notice, which has been issued by the Mamlatdar asking him to remain present and also prayed for desealing his premises.

11) The aforesaid fact suggests that in wake of the award passed by the Labour Court, Thane, it is not open for the petitioner to contend that the aforesaid amount of penalty of 25% cannot be paid by him as per the clauses of the Insurance Policy. It was always open for the present petitioner to point out such facts before the Labour Court, Thane, however, he did not choose to remain present.

12) Now, the petitioner, in order to escape his liability of 25% of penalty of compensation, which is to be paid to the respondent workman in view of the award, the show-cause notice issued by the Mamlatdar, for the implementation of the recovery proceeding is challenged. The writ petition appears to have been filed to frustrate the recovery proceedings.

13) In this view of the matter, looking to the conduct of the petitioner, this Court is of the considered opinion that no interference is required at this stage in quashing and setting aside the notice issued by the Mamlatdar for implementation of the recovery proceeding against the petitioner. The writ petition stands rejected. Notice is discharged.

(A. S. SUPEHIA, J) VISHAL MISHRA