1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.1709 OF 2009. Sarjerao S/o Tukaram Nanware ... Appellant. Versus Baban S/o Laxman Gore and another ... Respondents. ... Mr.H.V.Tungar, advocate holding for Mr.C.R.Deshpande, advocate for the appellant. Mr.Sachin Deshmukh, advocate for the Respondent NO.1. Mr.Osmanpurkar, advocate holding for Mr.K.V.Kulkarni, advocate for the Respondent No. 2. ... CORAM : S.V.GANGAPURWALA,J. Date : 25.10.2010. ORAL JUDGMENT 1. Heard. 2. Admit. 2 3. With the consent of the learned counsels for the parties, the First Appeal is taken up for final hearing. 4. The present appellant is the original opponent No.1. The present Respondent No.1 had filed claim petition under the provisions of the Workmen's Compensation Act, for compensation on account of the injury sustained by him in the accident which took place on Nagar-Pune road while carrying sugarcane on the truck. The present Respondent No.1 was the driver. The present appellant is the owner of the said truck and the present Respondent No.2 is the insurer. The Commissioner Workmen's Compensation, partly allowed the claim petition and directed the present appellant and the Respondent No.2 to jointly and severally pay an amount of Rs. 4,84,500/- (Rupees four lacs eighty four thousand five hundred) as compensation. It also directed the appellant to pay a penalty of Rs.1,42,250/- (Rupees one lac forty two thousand two hundred fifty). The owner has challenged the said award to the extent of the amount of penalty awarded 3 and has accepted the rest of the part of the order. 5. Mr.H.V.Tungar, learned counsel holding for Mr.C.R.Deshpande, advocate for the appellant, contended that the award to the extent of grant of penalty is per se and ex-facie illegal as no show cause notice was issued as is required under the statute. It is only if an amount of compensation is not paid within a period of one month then only the Commissioner could impose penalty. For that purpose he relied on provisions of Section 4-A of the Workmen's Compensation Act. Mr.Tungar also relied on the judgment of the learned Single Judge of this Court in a case of "Udhav Rangnathrao Pawar Vs. Sheshrao Ramji Jogdand and another" 2009 (6) ALL MR 117. He submitted that the said award to the extent of penalty deserves to be quashed and set aside. 6. Per contra, Mr.Deshmukh, learned counsel for the Respondent No.1/original claimant contended that the Commissioner has rightly come 4 to the conclusion to award penalty against the present appellant inasmuch as though the present appellant was having the knowledge that the Respondent No.1 is his employee, still, he disputed the said fact and did not pay the amount. According to him, the Commissioner had even framed an issue to that effect. As such according to the learned counsel the parties were put to notice in respect of the same. He further submitted that the Commissioner should have awarded penalty at 50% but has taken a lenient view as far as appellant is concerned. 7. With the assistance of the learned counsel, I have gone through the judgment passed by the Commissioner, Workmen's Compensation. 8. As per Section 4-A of the Workmen's Compensation Act, the Commissioner has to come to the conclusion that the amount payable under sub- section (1) of Section 4-A of the Act has fallen due. So also on scrutiny of the facts has to come to the conclusion about the amount payable by the opponents and whether the amount has been 5 paid or not when it has fallen due. What would be the date when the amount has fallen due would dependent upon the facts and circumstances of each case, which the Commissioner has to give a finding to that effect. In the present case, no discussion appears to have been made in that regard. The learned Judge of this Court in case of "Udhav Rangnathrao Pawar Vs. Sheshrao Ramji Jogdand and another" referred supra has held that the Commissioner should give findings on all these aspects and then should come to the conclusion about the position of penalty. As no such finding appears from the judgment of the Commissioner in this regard, it would be appropriate to set aside the said award to the extent of penalty keeping the remaining part of the award intact and remit the matter back to the Commissioner to the extent of clause (3) of the operative part of the order that is to the extent of penalty. In the result, I pass the following order : ORDER (i) The appeal to the extent of grant of penalty 6 by the Commissioner vide its impugned order dated 2.5.2009 in WMC No.21/2006 is allowed. The said order to the extent of penalty is quashed and set aside, keeping the other part of the award intact. The parties shall appear before the Commissioner, Workmen's Compensation, Beed on 29.11.2010. The appellant shall show cause in respect of penalty proposed to be levied by the Commissioner. Upon receipt of the explanation from the present appellant, the Commissioner for Workmen's Compensation shall hear the respective parties and pass appropriate order in accordance with law. (ii) The rest of the order passed by the Commissioner for Workmen's Compensation by its order dated 2.5.2009 in WMC No.21/2006, is maintained. The appeal is accordingly disposed of. The R & P be sent back immediately to the Commissioner. All points are kept open. (S.V.GANGAPURWALA,J.) asp/office/fa170909 7