FAO No.95/2009 Page 1 of 4 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI FAO No.95/2009 Date of Decision: June 01, 2010 MAHARASHTRA FREIGHT CARRIERS PVT LTD ..... Appellant through Mr. Prashant Sharma, Advocate versus KUSUM LATA & ORS ..... Respondents through Mr. Basant Kumar Gupta, Advocate for respondent No.1. Mr. Nawal Kishore Jha, Advocate for respondent No.4. CORAM: HON'BLE MISS JUSTICE REKHA SHARMA 1. Whether the reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be reported in the ‘Digest’? Yes REKHA SHARMA, J. (ORAL) This appeal has been preferred against the notice dated October 03, 2008 issued by the Sub Divisional Magistrate, Vivek Vihar, Delhi, calling upon the appellant to deposit a sum of Rs.3,17,086/-, failing which, the notice goes on to say that the amount will be recovered through arrest warrants or attachment. The impugned notice is a sequel to an order dated August 04, 2008 passed by the Commissioner under Section 4A of the Workmen’s Compensation Act, 1923 granting in favour of respondents No.1 and 2 FAO No.95/2009 Page 2 of 4 a sum of Rs.1,04,120/- as interest on the amount of compensation awarded to the said respondents on account of death of Shri Pratap Singh, husband of respondent No.1 while he was in employment with the appellant and also granting a further sum of Rs.1,58,500/- by way of penalty. At the outset, it is submitted by learned counsel appearing for respondents No.1 & 2 that the appellant is liable to pay only the penalty amount and that in so far as the interest is concerned, the liability to pay the same lies with the Insurance Company. It is also submitted by the learned counsel that the impugned notice dated October 03, 2008 has since been superseded and has been replaced by another notice and thereby instead of calling upon the appellant to deposit a sum of Rs.3,17,086/-, it has been asked to deposit a sum of Rs.1,58,500/- only. A perusal of the order dated August 04, 2008 whereby the appellant has been saddled with the liability to pay the penalty amount, goes to show that despite service of notice, neither the appellant nor the Insurance Company who is liable to pay the interest appeared before the Commissioner to contest the notice resulting in an ex-parte order against them and consequently, the Commissioner directed that a recovery certificate be issued under Section 31 of the Workmen’s Compensation Act, 1923. The appellant preferred no appeal against the said order. It is submitted by the learned counsel for the appellant that by way of the present appeal, he has also impugned the order dated August 04, 2008. However, it is not disputed that in so far as the FAO No.95/2009 Page 3 of 4 appeal against the said order is concerned, it is barred by the law of limitation. It was supposed to have been filed within 60 days from the date of the order which expired on October 03, 2008 but it was filed on February 28, 2009. The appellant has filed an application for condonation of delay in filing the appeal vis-à-vis the order dated August 04, 2008. It is stated therein that the appellant had come to know of the said order only after it had received the impugned notice dated October 03, 2008 and that upon coming to know of the same, it applied for a certified copy of the order dated August 04, 2008 on October 23, 2008 which it received only on December 17, 2008. According to the counsel, if the time taken in obtaining the certified copy is excluded for the purpose of computing limitation, then his appeal challenging the order dated August 04, 2008 is within time. The said submission of the learned counsel for the appellant is liable to be rejected, for the reason that it is not the case of the appellant in appeal before me that it had not received any notice from the Commissioner, Workmen’s Compensation before passing of the order dated August 04, 2008. It is clearly recorded in the order dated August 04, 2008 that neither respondent No.1 nor respondent No.2 responded to the notice. In this view of the matter, if the appellant chose not to appear before the Commissioner despite service of notice, it cannot seek condonation of delay on the ground that it came to know of the order dated August 04, 2008 only upon the receipt of the notice dated October 03, 2008. As regards the submission that if the time taken in obtaining certified copy of the order dated August 04, 2008 is excluded, then the appeal FAO No.95/2009 Page 4 of 4 filed by the appellant in relation to the said order is within time, is totally misconceived. The period for filing the appeal against the order in question was 60 days. The appellant applied for certified copy of the order itself after the expiry of the said period of 60 days. In this view of the matter, the appellant cannot claim any benefit on account of the time taken in obtaining the certified copy. For the foregoing reasons, I find no merit in the appeal. The same is dismissed. REKHA SHARMA, J. JUNE 01, 2010 ka