Sterling Private Limited Through ... vs Mamad Umar Kkad
2023 Latest Caselaw 6434 Guj

                                                                                      NEUTRAL CITATION




       C/FA/3840/2023                                 ORDER DATED: 04/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3840 of 2023

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                     In R/FIRST APPEAL NO. 3840 of 2023
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     STERLING PRIVATE LIMITED THROUGH ITS PARTNER DHIRUBHAI /
                    ARVINDBHAI DAMJIBHAI PATEL
                               Versus
                         MAMAD UMAR KKAD
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Appearance:
MR NR KOYANI for MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1
MR YOGEN PANDYA for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 04/09/2023

                                  ORAL ORDER

1. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal today.

2. The appellant by way of present appeal challenges judgment and award dated 7.11.2019 passed by the Commissioner for Employees Compensation Act and Judge, Labour Court, Jamnagar (in short "the Commissioner") below Exh.52 in Workman (Non Fatal) Case No.18 of 2012, whereby the learned Commissioner granted compensation of Rs.76,289/- along with 12% interest from the date of the incident till realization and also passed the order of penalty in tune of 25% amount. This penalty was to be calculated on the amount of compensation and interest.

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3. Learned advocate Mr. NR Koyani for learned advocate Mr. Premal Joshi for the appellant, having referred the appeal memo, would submit that the learned Commissioner has erred in passing the order of interest and granted the interest from the date of the incident, whereas the petition for compensation was moved under the condonation of delay application on 29.4.2004 and the delay was condoned on 22.10.2012. He would therefore, submit that there is no provisions of law permits the learned Commissioner to pass order to calculate the interest from the date of the incident when the petitioner has not moved the petition on the day of the incident. He would further submit that even according to the appeallant, the cause of action is started on 29.4.2004 and therefore, it is a clear error of law on the part of the learned Commissioner.

4. The second submission canvassed by learned advocate Mr. Koyani that the learned Commissioner failed to appreciate that there was no relationship of employer and employee between the original claimant and the appellant herein. That evidence in this regard was also submitted before the learned Commissioner, but no proper appreciation has been taken at the hands of the learned Commissioner. Therefore, he would submit that the present appeal may be allowed.

5. On the other hand, learned advocate Mr. Yogen Pandya for the respondent in his utter fairness would submit that it is an error on the part of the learned Commissioner to grant the interest from the date of the incident. The interest must have been granted from the date on which the delay condonation application is filed and he is agreeable to modify the interest part

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in the impugned order. He would further submit that when delay condonation application i.e. Misc. Application No.6 of 2004 was filed before the learned Commissioner, a categorical statement has been made by the respondent that he is an employee of the appellant. The learned Commissioner has allowed this delay condonation application and approved the contention. He would further submit that an order passed in delay condonation application i.e. Misc. Application No.6 of 2004 was never assailed by the employer/appellant before the learned Commissioner. So, the employer - employee relationship was established even before the workman compensation petition commenced. In view of that facts and circumstances, there is no question of law involved in this appeal and therefore, he would submit to dismiss the appeal.

6. Having heard learned advocates for the both the sides, at the outset, let refer section 30 of the Employee's Compensation Act, 1923, which provides remedy of the appeal.

"30. Appeals-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-

(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;

(aa) an order awarding interest or penalty under section 4A;]

(b) an order refusing to allow redemption of a half- monthly payment;

(c) an order providing for the distribution of compensation among the dependents of a deceased [employee], or disallowing any claim of a person alleging himself to be such dependent;

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(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub- section (2) of section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than [ten thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify]:

Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:

[Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.]

(2) The period of limitation for an appeal under this section shall be sixty days.

(3) The provisions of section 5 of 5[the Limitation Act, 1963 (36 of 1963)], shall be applicable to appeals under this section."

7. The proviso to section 30 clearly indicates that no appeal shall lie against any order unless substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in clause (b).

8. Having considered the arguments canvassed by both the

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sides, the only substantial question of law, which appears in this matter is whether the learned Commissioner can grant interest from the date of the incident though no such petition was moved on the date of the incident or whether interest can be granted from the date on which first time the litigant approached the Court. This question of law though was requiring consideration, learned advocate Mr. Pandya fairly submits that the learned Commissioner has committed error in understanding the law in granting the interest from the date of the incident. He has categorically admitted that the order of passing interest must commence from the date of filing of delay condonation application and to that extent, if the impugned judgment and award is modified, the respondent - original employee has no objection. The fair submission on the part of learned advocate Mr. Pandya would decide the substantial question of law accordingly.

9. For the foregoing reasons, I pass following order:-

1. The appeal is partly allowed and the impugned judgment and award is partly modified.

2. The order of awarding the interest from the date of the incident/accident is modified and it shall be ordered to come in force from 29.4.2004 the day on which the respondent employee has filed the delay condonation application being Misc. Application No.6 of 2004.

3. Rest of the order stands remained in force.

4. The appellant shall deposit the entire awarded amount of compensation before the concerned learned Tribunal within eight weeks from today, if not deposited.

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5. It would be open for the learned Commissioner to go for disbursement proceedings.

10. It goes without saying that the amount of interest upon penalty shall also be calculated as per foregoing reasons.

11. With aforesaid observations and directions, present first appeal stands disposed of. Connected CA also stands disposed of.

(J. C. DOSHI,J) SHEKHAR P. BARVE