* 1 * C.A. 4290.2010 in F.A. 1699.2010 1.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4290 OF 2010 IN FIRST APPEAL NO. 1699 OF 2010 Bharat Vishwanath Gaitonde .....Applicant V/S. 1. Smt. Bharatbhai Prakash Kamble & anr. .....Respondents * * * * Mr. Aumkar V. Joshi, adv.for the applicant. Mr. Nitin Deshpande, adv.for respondent no.1. Respondent no.2 and advocate absent. CORAM :- Smt. R.P. SondurBaldota, J. 1st April, 2011. P.C. :- 1. The First Appeal herein is filed to challenge the judgment and Award dated 14th September, 2010 passed by the Commissioner for Workmen s Compensation, 1 ’ st Labour Court, Pune. By the impugned judgment and order, the appellant who is the employer has been * 2 * C.A. 4290.2010 in F.A. 1699.2010 1.4.2011 ordered to pay 50% of the compensation amount awarded to respondent no.1 towards penalty. The appeal was admitted on 26th November, 2010. Thereafter, the appellant took out the present Civil Application seeking following two interim reliefs. (a). “ Pending hearing and final disposal of First Appeal, the Judgment and Order dated 14.9.2010 passed by the Commissioner for Workmen s Compensation, First Labour ’ Court, Pune in WC no.94 of 2007 be stayed; (b). Pending hearing and final disposal of the First Appeal, the Opponent no.1 be restrained from withdrawing the amount of Rs.139195 deposited by the Applicant with the Commissioner for Workmens Compensation, First Labour Court, Pune in WC No.94 of 2007.” 2. Prayer clause (a) of the Civil Application is absolutely misconceived. There cannot be stay of the impugned judgment and order. There can be only stay of execution of the order. As regards prayer clause (b), the learned counsel appearing for the applicants, submits that in view of the second substantial question of law framed by this Court at the time of admission of the appeal on 26th November, 2010 the applicant is required to be protected against withdrawal of the amount by respondent no.1. The second substantial question of law framed reads as follows :- * 3 * C.A. 4290.2010 in F.A. 1699.2010 1.4.2011 Whether the penalty could have been made payable without “ giving show cause notice or an opportunity to show cause as to why penalty should not be imposed ? 2. The learned counsel by referring to Section 4-A(3)(a)(b) of the Workmen s Compensation Act, submits that, it was incumbent on the ’ part of the Commissioner to issue a separate show cause notice to the applicant, even though the claim of penalty had been made in the claim application by respondent no.1. The provision of Section 4-A(3)(a)(b) alongwith the proviso reads as follows :- “4-A. Compensation to be paid when due and penalty for default. (1) ..... (2)....... (3)...... (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of 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 the employer shall, in addition to the amount of the arrears and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty : Provided that an order for the payment of penalty shall not * 4 * C.A. 4290.2010 in F.A. 1699.2010 1.4.2011 be passed under clause (b) without giving a reasonable opportunity to the employer to show cause as to why it should not be passed.” Perusal of the provision, shows that the legislation does not provide for any separate show cause notice to be issued to the employer calling upon him to show cause as to why penalty should not be imposed upon him. The proviso to Section 4(a)(b) prescribes a reasonable opportunity to be given to the employer to show cause as to why an order of penalty should not be made against him. This reasonable opportunity is afforded to the employer during the course of hearing of the claim application before the Commissioner at the time of recording of evidence by way of cross-examining the claimant and the witnesses and also producing his own evidence in support of the reason for not depositing the amount of compensation with the Commissioner within a period of one month from the date it falls due. 3. Perusal of the impugned judgment and order shows that this opportunity had been afforded to the applicant and he had not taken the same. At paragraph-18 of the impugned judgment and order the * 5 * C.A. 4290.2010 in F.A. 1699.2010 1.4.2011 Commissioner has observed that the applicant did not take any steps for giving compensation to the applicant within the stipulated period. The applicant though participated in the proceedings, did not cross- examine the witness of the claimant. Further, though he examined himself, he did not produce any evidence to furnish an explanation for not taking steps for paying compensation to the applicant within the stipulated period. Therefore, on a prima-facie view it cannot be said that the applicant did not have reasonable opportunity to show that the order of penalty should not be imposed upon him. In that circumstance, the relief in terms of prayer clause (b) cannot be granted. In any case, respondent no.1 is yet to file an application for withdrawal of the amount. However, taking into consideration all the facts of the case, the only interim relief that can be granted to the applicant is that in view of deposit of the amount of penalty by the applicant in compliance of the impugned judgment and order, there will be stay of execution of the impugned judgment. [SMT. R.P. SONDURBALDOTA, J] * 6 * C.A. 4290.2010 in F.A. 1699.2010 1.4.2011