i^^ ^-^ c; •J IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL FC1 N0. 9.32) /2010 (S.B.t / ^ APPELLANT :- N.A. 1 ...^>r ....•<r^y -^^. ^•-••"^ ^'•^' ^\^ ("; Smt. Nirmala Chand w/o Girijesh Chand, aged about 48 years, R/o Hind Nagar, Risali, Bhilai, District Durg (C.G.) {wrongly mentioned as Quarter No. 13 D Street No. 5, Sector- 2, Bhilai Nagar, Chaudhary Road Lines Transport Nagar, Bhilai, District Durg (C.G.)J VERSUS RESPONDENTS APPLICANTS N.A.2 N.A.3 N.A.4 1. Holiram aged about 40 years, S/o Anup Kumar, 2. Kuleshwar aged about 12 years, S/o Holiram (Minor through his father Holiram) Both R/o Ghasidas Nagar, behind the Baikunthdham, behind Yug Nirman School, Camp-2, Bhilai, Police Station Chhawani, District Durg (C.G.). 3. National Insurance Company Limited, Registered & Main Office, - 3, Middilton Street, Post Box No. 9229 Kolkata - 700071, through Branch Manager, Branch Office at Bhutani Complex, G.E. Road, Power House, Bhilai and Divisional Manager, Divisional office Akash Ganga, Supela, Bhilai, District Durg (C.G.). 4. Smt. Malti Bai wd/o Late Kamlesh Kumar Jangde. 5. Pankaj Kumar, aged about IVs years, s/o Late Kamlesh Kumar Jagde, (Minor through. mother Smt. Malti Bai) Both R/o Ghasidas Nagar, behind Baikunthdham, behind Yug Nirman School, Camp-2, Bhilai, District Durg (C.G.) c^ ^. •^- MISC. APPEAL UNDER SECTION 30 PF WQRKSMEN COMPENSATION ACT, 1923 ^ f<2. HIGH COURT OF CHHATTCSGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR.GULAM MINHAJUDDIN. JJ. Appellants Respondents ApDellant Respondents M.A.Cc] No.930/2010 Smt. Malti Bai <& another Vs Holiram <& others <& M.A.tc] No.993/2010 Smt. Nirmala Chand Vs Holiram <& others i^ Present: AAr. P.R. Patankar, Advocate for the appellants in M.A. (C) No.930/10 and for respondent No.4 in M.A. (C) No.993/10. Mr. Amiyakant Tiwari, Advocate for the appellant in /\A.A. (C) No.993/10 and for respondent No.3 in M.A. (C) No.930/10. Mr. B.N. Nande, Advocate for the respondent No.3 in M.A. (C) No.993/10. Mr. Gautam Khetrapal, Advocate for respondent No.4 in M.A. (C) No.930/10. ORDER (Oral) (21st September. 2011) I.M. Quddusi. J; 1. Heard. 2. M.A. (c)No. 930/10 filed by the widow and son of deceased Late Kamlesh Kumar Jangde <& AA.A. (c) No.993/10 filed by the employer of the deceased are being disposed of by this common order as both these appeals have been filed against the order dated 04.05.2010 passed in Case No.81/WC Act Fotal/2008 whereby the leamed Commissioner^ Workmens Compensation, Labour Court, Durg (CG) (for brevity 'the Commissioner') has partially allowed the clQim apptication of the clairnQnts and awarded a sum of Rs.1,62,683/- as also Rs.81,342/- as penalty. 3. Following substantiai questions of low are involved in M.A. (c) No.930/10 & 993/10:- ^ /f3^ ^ ^ ^ M.A. (0 No.930/10: • Whether the leQrned Commissioner has erred in ossessing the income of the appeltant to Rs.1,500/- despite specific pleading <& evidence that the appellQnt used to earn Rs.2,500/- <& allowonce of Rs.50/- per day totaling to Rs.4,000/-? • Whether the finding recorded by the learned Commissioner is perverse on the face of record and deserves to be suitably modified? M.A. (0 No.993/10: f • Whether the teQrned Commissioner for the workmen compensation was justified while imposing penalty on the present appellant/employer without issuing a show cause notice to himas contemplated under proviso of section 4-A of the Act? • Whether, such a penalty is sustainable in the eye of law which is imposed without following the mandatory procedure of law and without there being any reasons recorded for deliberate or wiltful delay and without there t3eing any subjective satisfGction of the court below in that regard? 4. The widow and son of deceosed Late Kamlesh Kumar Jangde have filed the appeal for enhancement of the amount of compensation and also the order * of apportionment of the amount of compensotion. The employer of the deceased has filed the appeal challenging the impugned award so far as it relates to imposing of penalty on her. 5. Facts of the case, in nutshell, are that deceased Kamlesh Kumar Jangde was employed as 'Cleaner' in the truck of the non-applicant No.l bearing registration number CG07-C-1158. On 25.10.2007, on the instructions of the employer, said Kamlesh Kumar Jangde was going Mumbai in the said truck. However, neor Kalara Ghat Road due to failure of brakes, the dn'ver of the said truck lost control over the vehicle and the said truck has met with QH accident as Q result of which said Kamlesh Kumar sustained grievous injuries and died instantaneously. Report of the accident WQS r^ ;'£»|j '"»<^' ^2^/' /3^ ^^ lodged in the Police Station Kasara, bistrict Thane (MS). The claimants, who are brother and fother of the deceased, have filed a claim application before the Commissioner seeking compensation to the tune of Rs.5,37,600/- along with interest and penalty from the respondents on the ground due to death of deceased, who died under the employment of the non-applicant No.l. 6. The Commissioner partly allowed the claim application. 7. Learned counsel for the widow <& son of the deceased has submitted that minimum wages fixed by the Government at the relevant time for unskilled workers was Rs.2,659/- per month and therefore the Commissioner shoutd have calculated the wages ot the rate of minimum wages admissible. 8. Learned counsel for the appellant-employer submits thot the penalty was imposed without following the procedure prescribed under Section 4A of the Workmen's Compensation Act. 1923 (for short 'the Act, 1923'), therefore, the some is liable to be set aside. 9. We have heard learned counsel for the parties and perused the impugned order as also records of the Commissioner. 10. On careful examination of record, we found that in the claim application monthly wages of the deceased workman was mentioned as Rs.2,500/- but the employer-non-applicant Nd.l came into witness box and stated that she was paying the deceased @ Rs.1,000/- per month and Rs.50/- per day as atlowQnce when the vehicle was in use. She also used to give money to the deceased on the occasion of festivals. However, she has not produced any evidence or document to prove the wages which were being paid to the deceased by her. 11. The Commissioner accepted the wages of the deceased @ Rs.1,000/- per month <& Rs.50/" per day as allowance for 10 days only in a month and assessed monthly wages of the deceased workman at Rs.1500/- ond calculated the compensation accordingly. The Commissioner has also imposed a penalty upon the employer at the rate of 50% of the compensation. @ 12.5ection 22 of the Minimum Wages Act, 1948 (for short 'the Act, 1948'), makes provision for penalties for certain offences and the same reads thus;- "22. Penalties for certain offences.- Any employer who- (a) pays to any employee less than the minimum rotes of wages fixed for that emptoyee's class of work, or less than the amount due to him under the provisions of this Act; or (b) contravenes any rule or order made under section 13, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. Provided that in imposing any fine for an offence under this section, the court shatl take into considerQtion the amount of any compensation already awarded against the accused in any proceedings taken under section 20." 13. Further, Section 4A (3) of the Act, 1923 prescribes the rate of interest to be awarded and imposition of penolty by the Commissioner, which reads as under:- "(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner sholl- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate to twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that employer shall, in addition to the amount of the arrears, ond interest thereon pay a further sum not exceeding fifty percent of such amount by way of penalty. ^ Provided that an order for the payment of penatty shall not be passed under clause (b) without giving a reasonabte opportunity to the employer to show cause why it should not be passed." 14. A bare peruSQl of the above provisions would reveal that if any employer makes the payment to an emptoyee less than the minimum woges or wages fixed, it amounts to an offence. Further, a simple interest at the rate of 127o p.a. or at such higher rate not exceeding the maximum of the lending rate of any scheduled bank, as may be specified by the Centrol Government, is payable on the omount due. It is also evident from the above that the Commissioner can direct the employer to pay a further sum not exceeding 50% of the amount of compensation by way of penalty. 15.1f we examine the present case in light of the above provisions, it would reveot that the order passed by the Commissioner is not proper, for the following reosons;- • the Commissioner has only awarded simple interest @ 10% p.a., whereas the Commissioner should have awarded interest @ 12% p.a. in view of the provisions of Section 4A (3) (a) of the Act, 1923 which mokes provision for award of atleast 12% interest per annum or at such higher rate not exceeding the maximum of the lending rate of any scheduled bank, as may be specified by the Central Government. • Further, in view of the provisions of Section 4A (3) (b), imposition of penatty at the rote of 50% by the Commissioner is not proper as the Commissioner has not assigned ony reason justifying imposition of penalty @ 50% p.a. in the facts and circumstances of the Jnstantcase. • The Commissioner while calculating income of the deceased has also not taken into consideration the amount paid to him on the occasion of festivals by his employer/ whereas as perdefinition of lwages' given in sub-section (m) of Section 2 of the Act, 1923, ^T\ fe$-) which is quoted below, payment of amount on the occasion of festivots would certainly be included in the wages;- "(m) "wages" includes any privileges or benefit which is capable of being estimated in money, other than traveling allowanceor the volue of any traveling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entQiled on him by the nature of his employment." 16.In view of the above, we are of the opinion that the matter requires reconsideration at the end of the Commissioner and therefore we set aside the impugned order and remit the matter back to the Commissioner to decide the claim application afresh in light of the observations made in this order. The ex-parte proceeding agoinst the employer is also set aside. 17.The Commissioner shall provide opportunity to the parties to odduce further evidence, if any, amend the pleadings, file or verify documents already filed ond thereafter reconsider the quantum part and olso the fact as to whether the father & brother of the deceased are entitled to get any amount of compensation on the basis of evidence available on record. The parties are directed to appear before the Commissioner on 16.11.2011 either in person or through their counsel. The Registry is directed to transmit the record of the Commissioner without further delQy. 18. Both the appeals are allowed to the extent indicated above Roshan/ Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge R