IN THE HIGH COURT OF CHHATTtSGARH OF BILASPUR {C.O.V ^^' ^ •m e'1 ^ Misc.Appeal No. ^ If^ /03 Appilant ^ Nirdosh Kumar S/o Munna Lal Ji Pugaliya Gouravpath Mekarshat Mixdumber Plant, Mahakurla Tah. & Distt. Chandrapur(M.H.) Vs., ^tespondents ^ " 5^ ?^^ .^•^•s^"" f.^^^^"' r^ 'A^^*'..1 1. Dhanesh S/o Mohan Aged 22 yrs. Caste- Sahu, Residence - Singhangarh, P.0. Singhangarh, Tah. & Distt. Kawardha (C.G.) ^; Prabhakar Bhoyar S/o Bapt.iji Bhoyar, Residence - Mahakurla Thana-Ghughusu,Tah. & Distt. C handrapu r (M.H.) ^ 3. Manager, National In surance Com p any Ltd. Kamathi Line, Rajnandgaon (C.G.) APPEAL U/S 30 (1V (aa) ofWorkmen's ComDensation Act. 1923 ^mm ;^i ^ HIGH COUm' OTCHHATTISGARH AT BILA8PUR APPELLANT Misc. AooealNo. 947 of2003 : Nirdosh Kumar RESPONDENT8 VBRSU8 Dhanesh & others MISC. APPEAL UNDER SECHON 30 (1)OF THE WORKMEN'S COMPENSATION ACT. 1923 (8B; Hon'ble Mr. N.K. A®irwal,J.y \ Present Shri HB Agrawal, Sr. Advocate with Smt. Meera Jaiswal, Advocate for fhe appeltant None for respondentNo. 1 & 2 Ifaowgh seryed. Shri Qmrul Aziz, Advocate for r^pondent No.3. ORALORDER (Pas$ed 01122.02.20tl) 1. This is employer's appeal against the award dated 19.08.2003, passed by the Commissioner for Workmen's Compensation, Labour Court, Rajnandgaon, in case No. 277WC Aet (Fatoiy2002, whereby an amcwnt of Rs. 1,45,600/- has been awarded as compensation in fevour ofrespoadent No. 1/Dfaaaesh along with interest and penally. The liability to pay compensation .•.>- has been fastened upon the respondent/inswance company whereas tiability ofpayment ofpenalty amount has been fastened upon the appellant/employer. 2. BrieffactSiOfthe case accordiag to Ifce appellant are that, on 24.01.2002,_Smt. Amar Bai (Smee deceased) wtule workiag under the employment of appellant, was sitting in Dumper bearing registration No. MH-34-A-5456, Ae Driver of another ii \ .-^•< ^' Dumper Nariag r^stfation l^. MH^^^ dasfaed the appellant's Dumper, as a result ofwhieh she sueeumbed to the uguries sustained in the said incident. 3. The Commissicmer for Workmen's Compensation, on appreciation ofllie evidence led mid materml plaeed l?y both the parties, awaided totel ampunt of Rs. 1,45,6QO/- as eomp^isation m favour ofrespondent No. 1/Dhanesh and »lsoawaFded mterest @ 6 percent per annum from the date ofapplieation and penalty to the exteat of 25 percent, holding the appellant Hable for payment so fw as penalty part is ©onGemed. 4. Shri HB Agrawal, leamed seaior co^nsel appeariag for the appellant woyld submit that the appellaiil; was aot afforded with reasonable opportunity to show eause why penal^ should iiot be imposed against him, and therefiwe, Ihe penalty iiiaposed ttpom the employer is not in aeeordance with law an<i the same deseryes to besetaside. 5. I have heard the coun$el appeariag for Itie appellant, perused the orderinipugned,%id records ofthe ease. 6. In order to appreciate the contenlaoiis raised by Shri Agrawal, it would be appropriate to reprodwe ^ie provisions eoutained in Section 4A. ofthe Workmen's CompensatioB Aet, 1923 (for short 'the WC Act')whi©hreads as uader: U4A. Compeaisiutton to^^^^^^b^ defeult - (1) CGHipensadion sectioa 4 shall be paid as soon as it falls due. i^-l^; 1: c ...^' - ,^. 8. (2) Bi cases wfcere tiie enyIoyCT does not accept the liaNIity for compensation to the extent daimed, he shalt be bound to make provisional payment based <m the extent of liability ^rich he accepts, and, sudi payment shall be deposited wftfa Ifae CommisBioner or made to tiie worikman^ aslfae case may be, without prejudice to the ri^rt oftheworiananto niake aiiy fiirihCT dlaim. c (3) Where any enaployer is in defaiatt m paying tfie con^ensation due under fhis Act within one mocrife fi-om Ifae date it fell due, Ae Commissioner shall - (a) direct fhat llie employer shall^ m additien to the amount of tiie atreani, ^iy simple ititere^ thereon at tiie rate oftwelve per centpCT armiim or at such hi^ier rate not exceeding Ihe maximum oflhe lendmg rates of any scheduted baafc as may be specified by fiie Central GovemmCTrt, by notification in the Qfficial Gazette, ontfae amountdue; and (b) if, in his opNon, fhere is nojustification forlfae delay, direct tiiat fhe eiaployer shall, in addition to fhe ^nouiit of tfae airews aa^ ititerest thereon, pay a fiirtfaer gum iiot exceedsag fifty per cent ofsuch amowxt by way ofpeaalty; Provided that an order for the paynnent ofpenatty shalt m)t be passed ynder clause (b) without giving a reasonable opportunity to the employer to show caus®why it should not A bare reading of above pfovisions would reveal that before imposing peaalty upon the employer, it wouid be necessary for the court below to afford reasonabte opportunity to the employer to show cause why it should not be imposed^ From the award impugned, it is ctear thst before imposing penalty to the extent of25 pereent ofthe amount ofcompensation awarded m the case, the eourt Nlow has not afforded any [^ opportunity to show cause why sueh penalty should not be imposed upon him which is mandatory in terms of proviso to Section 4A (3Xb) ofWCAt. 9. For the reasons mentioned hereinabove, ia the coasidered opinion of this court, the order impKgaed unposing penalty upon th© appellant without affording any ©pportunityofhearing is b%i in law, the same is hereby setaside. 10. The matter is renutted back to the cOtirt below 1o pass appropriate order regardmg imposition ofpenalty after affording reasonable opportunity to show cause why it should not be imposed upon the appellanVemployer. It is also direeted that Ifae court below shall pass the order after afifordmg proper opportunily of heariag to both Ifae parties. 11. Appeal is awordingly allpwed. No order asto costs. Sd/- N. K. Agarwal Judge ) .tts.——.