1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1050 OF 2008 FIRST APPEAL NO. 1050 OF 2008 FIRST APPEAL NO. 1050 OF 2008 WITH WITH WITH CIVIL APPLICATION NO. 1898 OF 2008 CIVIL APPLICATION NO. 1898 OF 2008 CIVIL APPLICATION NO. 1898 OF 2008 IN APPLICATION (WCA) NO.22/B-2 OF 2006 M/s. Safekhem ... Appellant (Org. Respondent) Vs. Smt. Shubhangi Dattatray Khengre & Anr. ... Respondents (Org. Applicant) Mr. Rajesh Gehani, Advocate for the appellant Mr.Vishwanath Talkate, Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 24th July, 2008. DATE: 24th July, 2008. DATE: 24th July, 2008. P.C. P.C. P.C. 2 1. The Commissioner for Workmen’s Compensation, Mahad passed an order in Application No.WCA (No.22/B-2/06) directing the opponent/appellant to pay an amount of Rs.4,15,960/- towards compensation. Besides this, the Commissioner also directed the opponent to deposit 50% of the compensation amount as penalty. That order has been challenged in the present Appeal by the appellant on several grounds. 2 When the matter is taken up for admission, the learned Counsel for the appellant pointed out that the order of payment of penalty in addition to the compensation can be granted under Section 4A(3)(b) of the Workmen’s Compensation Act. However, the proviso to clause (b) clearly provides that an order for payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. According to him, no notice was given to the appellant that the learned Commissioner proposed to impose penalty. Further, he contends that as per clause (b), the employer maybe directed to pay penalty not exceeding 50% of such amount, but it does not mean that in every case the maximum amount should be awarded as compensation. He contends that the appellant was not given due opportunity of hearing on this point. 3 3. The learned Counsel for the original plaintiff/responent before this Court also concedes that there is no material on record to show that any notice was issued under clause (b) for payment of penalty. 4. Therefore, with consent of the parties, the Appeal is allowed. The impugned order is hereby set aside only to the extent of penalty and the matter is remanded back to the Commissioner for Workmen’s Compensation with a direction to issue notice to the opponent under Section 4A(3)(b) and after giving opportunity of hearing to both parties, to pass fresh order to that extent. 5. As the matter is being remanded, this Court has not heard the parties on merits in respect of the compensation awarded by the trial Court. After the Commissioner passes fresh order to the extent of the penalty, the appellant shall be at liberty to file fresh appeal raising all the points which are available to him,including challenge to the award of compensation. 6. It appears that the opponent/appellant has 4 deposited the compensation before the Commissioner and the claimants have also made an application for withdrawal of the amount. The learned Counsel for the parties concede that a part of the amount not exceeding 50% of the compensation amount may be released subject to furnishing security for the same. 7. The parties shall appear before the Commissioner on 4.8.2008. The Commissioner shall decide the matter within 3 months from that date. 8. As the appeal is disposed of, the C.A. does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)