FAO No.73/2008 Page 1 of 8 * HIGH COURT OF DELHI : NEW DELHI FAO No. of 73 of 2008 & CM No.1080/2009 % Judgment reserved on:24th July, 2009 Judgment delivered on:28th July, 2009 Sh. Kaushal Chand Misra, S/o. Late Sh. J.P. Misra, R/o. House No.F-77, Sector 22, Noida, Uttar Pradesh. ….Appellant. Through: Mr. Rajesh Kr. Passey, Adv. Versus Sh. Azar, S/o. Shri Mojim, R/o. House No.337, Village Khirniya, Post Office Balaha Bazar, District Khagaria, Bihar. Presently at:- R/o. House No. C-421, Sahid Sukhdev Nagar, Wazir Pur Industrial Area, Delhi- 110052. …Respondent. Through: Mr. R.K. Nain, Adv. for R-1. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes FAO No.73/2008 Page 2 of 8 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present appeal has been filed by appellant challenging order dated 25th October, 2007, passed by the court of Commissioner, under Workmen‟s Compensation Act, 1923 (for short as „Act‟), vide which application for setting aside ex-parte orders dated 8th March, 2006 and 25th May, 2007 was dismissed. 2. Respondent/claimant, filed a claim petition for compensation under the Act, as claimant was working as mason with appellant. During course of employment, respondent received injuries in an accident. 3. Notice of claim petition was issued to the appellant, but he remained absent. After taking into consideration, the evidence lead by respondent, Commissioner Workmen‟s Compensation (for short as „Commissioner‟), awarded compensation of FAO No.73/2008 Page 3 of 8 Rs.2,36,472/- to respondent/claimant along with simple interest @ 12% p.a. with effect from the date of cause of action i.e. 9th March, 2004 till date. 4. In proceedings before Commissioner on 8th March, 2006, as appellant failed to appear and did not file written statement, even after sufficient opportunities have been granted to him, he was proceeded ex-parte. 5. Appellant filed an application for setting aside of ex-parte order. That application was dismissed by Commissioner, on 25th October, 2007. 6. Aggrieved against these orders, appellant has filed this appeal. 7. On 3rd March, 2008, when appeal came for hearing before this Court, following order was passed; “Appellant to place on record the entire order sheet of Commissioner Workmen‟s Compensation and additionally to comply with Section 30 of the Workmen‟s Compensation Act. Re-notify for 14.7.2008.” FAO No.73/2008 Page 4 of 8 8. It appears that this order has not been complied with, till date by appellant. Since order dated 3rd March, 2008, was not complied by appellant, respondent on 12th January, 2009, filed an application under Section 151 CPC read with Section 30 of the Act, for dismissal of appeal on ground of non deposit of awarded amount. 9. No reply to this application has been filed by appellant, in spite of opportunities granted to him. 10. It has been contended by learned counsel for respondent, that in view of Section 30 of the Act, as appellant has not deposited the awarded amount, present appeal is liable to be dismissed. 11. On the other hand, it is argued by learned counsel for appellant that he filed an application for setting aside ex-parte order, as such provisions of Section 30 of the Act, are not applicable to the present case and in support of its contentions he cited a decision of this FAO No.73/2008 Page 5 of 8 Court, reported as Mohd. Idrish & Sons v. Chagga Ali and Another, 2003 (71) DRJ 147. 12. Section 30 of the Act reads as under; “30. Appeals – An appeal shall lie to the High court from the following orders of a Commissioner, namely:- (a) an order as awarding as compensation as lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; [(aa)] an order awarding interest or penalty under Section 4A;] (b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased workman, 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 FAO No.73/2008 Page 6 of 8 order 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: 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.] (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of [the Limitation Act, 1963)], shall be applicable to appeals under this section. 13. According to third proviso to this Section, 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. FAO No.73/2008 Page 7 of 8 14. Admittedly, at the time of filing of appeal, appellant did not deposit the amount payable under order appealed against, and that is why, on 3rd March, 2008, when appeal was taken up for hearing, appellant was directed to comply with Section 30 of the Act. 15. More than one year and four months have passed, but appellant has not complied with the provisions of Section 30 of the Act, which are mandatory. As such, the case law cited by learned counsel for appellant is not at all applicable to the facts of present case. The appeal challenging the impugned order of Commissioner, thus, is not maintainable and it is hereby, dismissed with costs of Rs.10,000/-. 16. Appellant is directed to deposit the costs within one month from today with Registrar General of this Court, failing which it shall be recovered, in accordance with law. 17. The application stands allowed and appeal is dismissed, being not maintainable. FAO No.73/2008 Page 8 of 8 +CM Nos.3132-33/2008 in FAO No.73/2008 * 18. Since appeal has been dismissed, these applications also stand dismissed. 19. List for compliance on 3rd September, 2009. 28th July, 2009 V.B.GUPTA, J. rb