1 W.P.No.847.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 847 OF 2011 Pradeep Vitthal Sakhare & anr. ... Petitioner v/s The Commissioner for Workmen’s Compensation, Kolhapur & anr. ... Respondents Mr.Laxman Deshmukh for the petitioner. None for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 1ST MARCH, 2011 P.C.: 1. The petition has been preferred against the order passed by the Commissioner of Employees’ Compensation at Kolhapur, by which he has refused to issue a certificate of deposit as required under the third proviso to Section 30(1) of the Employees’ Compensation Act. Admittedly, interest and penalty have not been deposited by the petitioner with the Court. It is contended that besides the amount of `1,50,440/-, the petitioner had deposited an amount of `3,00,000/- as directed by this Court in Writ Petition No.4101 2 W.P.No.847.11 of 2009. The Commissioner, while passing an award on 15.5.2010 has taken this amount into consideration and directed that compensation of `4,50,440/- should be paid to the respondent workman less `3,00,000/- already paid to him under the order of this Court. Accordingly, the Commissioner has also directed that interest at the rate of 12% plus penalty on the amount of `4,50,550/- should be paid by the petitioner. It appears that the petitioner has filed an appeal but has not deposited the entire amount as contemplated under the third proviso to sub-section (1) of Section 30 and hence the Commissioner has passed the impugned order. 2. It is submitted on behalf of the petitioner that the requirement to deposit the interest and penalty arises only when an appeal is preferred under Section 30 sub-section (1) (a) and not under Section 30 sub-section (1)(aa). Reliance is placed on the judgment of a learned Single Judge of the Karnataka High Court in the case of Executive Engineer (Electrical) & anr. v/s Hajarat Ali Mailasab & anr., reported in 1999 (82) F.L.R. 318, and of the Division Bench of the Allahabad High Court in the case of M/s.Indo Aromatic Pvt. Ltd. v/s Smt.Sarvesh Devi & ors., reported in 2008 (118) FLR 31. 3 W.P.No.847.11 3. Section 30 deals with statutory appeals under the Employees’ Compensation Act, 1923. Under Clause (1) sub- section (a), an appeal lies against an order awarding a lump sum compensation or disallowing a claim in full or in part for a lump sum. Section 30 sub-section (1) reads as follows :- “Sec.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 clim in full or in part for a lump sum; (aa) an order awarding interest or penalty under Section 4-A. (b) an order refusing to allow redemption of a half- monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased (employee), or disallowing any claim of a person alleging himself to be such dependant; (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 three hundred rupees: 4 W.P.No.847.11 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. Under the third proviso, therefore, no appeal can be filed by an employer unless the employer deposits with the Commissioner the amount payable under the order appealed against. In the present case, the order appealed against has been passed by the Commissioner for Employees’ Compensation directing payment of compensation besides penalty and interest. The appeal is not filed merely against an order awarding interest or penalty under Section 4-A. Therefore, in my opinion, the petitioner must deposit the compensation along with interest and penalty awarded. 4. In the case of Executive Engineer (Electrical) & anr. (supra), a learned Single Judge of the Karnataka High Court has followed the decision of the Karnataka High Court in the case of K.A.P. Steel Ltd. v/s R. Sasikala, reported in ILR 1989 Kar. 3098, in which it has been held that the “depositing of the amount of interest or penalty imposed 5 W.P.No.847.11 under Section 4-A of the Act in addition to the compensation awarded or otherwise is not a condition for preferring an appeal under Section 30(1) of the Act.” The learned Judge has held that the only deposit of compensation awarded is contemplated under Section 30 of the Act for preferring an appeal and it is not necessary to deposit the interest and penalty awarded by the Commissioner. 5. In the case of M/s.Indo Aromatic Pvt. Ltd. (supra), the Division Bench of the Allahabad High Court has held as follows:- “The provision clearly segregates interest or penalty from the principal sum. Embargo is available only with clause (a) under sub-section (1) of the Section. Therefore, our considered opinion is that for the purposes of preferring an appeal statutory deposit of the amount means principal sum not interest or penalty.” 6. With respect, I am unable to agree with the decisions of the Karnataka High court and the Division Bench of the Allahabad High Court. In the present case, the appeal has been filed not merely under Section 30(1)(aa) but also under Section 30(1)(a). Therefore, the amount of penalty and interest will also have to be deposited along with the compensation as a precondition for the maintainability of the appeal. 6 W.P.No.847.11 8. The words in the third proviso, “amount payable under the order appealed against” would indicate that the amount to be deposited must be inclusive of the penalty and interest and not merely the compensation. 9. In my view, therefore, there is no need to interfere with the order passed by the Commissioner of Employees Compensation. 10. The writ petition is rejected. .....