IN THE HON'BLEHIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARHl M.A.(Q No. u <?- of 2010 B !J8?!CR l^ n^jf ^ fe 3 is* <• APPELLANT NON-APPLICANT No. 1 ^. ^,^\ .J' •afci'' '.. •"'' ,..";.'..J%^;' ^••'\. -f, "" VA^ ^' ...^ <^-" Amit Kumar ..^ohara, son of Shyam Lal "^ Rohara, aged about 31 years, R/o. Near Mahamaya Mandir, Bemetara, Post, Tahsil and Thana Bemetara, District Durg (Ctihattisgarh) Versus RESPONDENTS ^l) Smt. Bhuneshwari Bai Sahu, Applicants widow of Ramesh Sahu, aged about 24 years, ^2} Tarun Sahu, son of late Ramesh Sahu, aged about 3 years, . Golu Sahu, son of late Ramesh Sahu, aged about 1 s years, ^-:4) Smt. Sukhiya Bai, wife of Manaram Sahu, aged about 51 years, -1. ^:5) Manaram Sahu son of Bisauharam Sahu, aged about 55 years, Respondents/applicants 2 &nd 3 minors through their natural guardian mother Smt. Bhuneshwari Bai Sahu, All residents of Village Pendrataraee Post Pendra- taraee, Tahsil Bemetara, DistrictDurg (C.G.) . |. .r' ^ ^j6) Divisional Manager, National Insurance Co. Ltd. Akashganga Complex, Supela, Bhilai, District Durg (C.G.) Policy issued from Divisional Officer, Raipur (C.G.) NON-APPLICANT N0.2 APPEAL UNDER SECTION 30 OF WORKMENS' COMPENSATION ACT _^ p-: ^^ "'i^ '^ *;$' l .<< /^tJlLJAT"y"S< i!l K€>r*S M.A.i'CiNo.840F2010 Amit Kumar Rohara (Non-applicant No.1) v< Applicants Srnt. Bhuneshwari Bal Sahu and oihers Mr. HB Agrawal, Sr. Advocate with Ms. Sareena Khan, Advocate for the appeltant. Mr.CK Sahu, Advocate for respondents No. 1 to 5. Mr. GVK Rao, Advocate for respondent No.6. QRDERiQra!) 1. This appea! has been filed by the appellant/emptoyer under Section 30 of the WorKmen's Compensation Act, 1923 (in short "the Act, 1923") against the award dated 27.11.2009 passed by the Commissioner, Workmen's Compensation, Labour Court, Durg (CG) in Case N0.99/WC Act/Fatal/2008, whereby penalty of Rs.1,60,178/- has been imposed upon the appeliant. 2. Brief facts of She case are fhat deceased Ramesh Sahu was working under the employment of the appellant as driver of Vehicie No. CG 04 G 3769, owned by the appellant. On the instructions of the appellant, on 16.1.2007 while the deceased after unloading the loods was returnlng from Bemetara, ne.ar Gili Petrol Pump at Somni a jeep bearing registration No. CG 04 ZB/4630 was coming from opposite direction (from Durg side), vvhich was being driven in an uncontrolied manner. The a'eceased in order to save that jeep against the tree, as a result of which the vehicie fell into a pit and Ramesh Sahu sustained grievous injuries and uitimaSely succurnbed ,to the sarne. 3. At the time of accident, the deceased was 28 years and getting a s-aiary of Rs.3000/- per month, in aduition to Rs.50/- as daily ailowance. He died during the course of emptoyment under the appellant. Thei;efore, respondents No. 1 to 5, who are wife, chiidren and parents of the deceased respectiveiy,_being his tegal heirs filed ^35^5SS^?-5^^ I^^^^T r\ 2- ~* a cl-aim petition under Section 22 of the Act, 1923 for a total compensation of Rs. 9,20,000/- under various heads. 4. However, !earned Commissioner, after hearing counsel for the respective parties, on ciose scrufiny of the evjdence by the parties.awarded -a compensation of Rs.3,20,355/- in favour of tht clairnants. tn addition thereto, the appellant/employer held iiable to pay 50% of the above compensation arnount as penalty within a period of one month from the of award. 5. Heard iearned counsel for the parties, perused the lower Court record (LCR) as thc impugned award. 6. This has on the foilovrfing substantial OT laVrf: 'Whether the learned Comrnissi'oner for Workmen's Compensation was justified in imposing the penaity on the appeisant vvithout complying with the proviso to sub-section (3$ of 'ction 4A of the VVorkmen's Compensation Act, 1923?" -section (3) of Sectlon 4A of iunder Act, 1923 is "4A. Cc for (1) (2) xxxx (3) Vv'here any employer is in default in paying the compensafion due under this Act within one month from the date it felt due, the Commissioner (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 pr a{ such higher rate not exceedina the rrraximum of the iending of any scheduled ^ •^^1??" -f^-^^s. ••• r,i, i' '7^ be specifled by the Centrs Government, by notification in the Official Gazette , on the amount due;and if, in his opinion, there is no justification for the delay, direct that the empfoyer shall, in addition to the amount of the arrears, and thereon pay a further sum nof exceeding fifty per cent of such amount by way of penalty: Provided that an order for the payment of penalty shali not be under ciause (b) without ^iving a reasonabie opportunity to {he empjoyer to show cause why it shouid not be passed." 8. Thus, from the proviso to sub-section (3) of Section 4A, it is ctear that before imposing penaity on the employer, a reasonable opportunity of hearing has to be afforded to him. There is no doubt that fhe provision is rnandatory in nature. 3. Frorn perusalof the LCR as 'well as the impugned award, it is ciear that imposing penalty, an ojiportunity of hearing was not to the appeiiant/'employer and the Commissioner for Workmen's Compensation has only mentioned in the impugnea' avvard that the empioyer has neither paid the amount of .compensation within one month from the d-ate on which it fetl due, nor had rnade any efforts to pay it. As such, it is clear that before irnposing penalty, no opportunity of hearlng was given to the 10; In this view of the matter, i am of the considered opinion that the matter needs to be remitted back to the Commissioner, Workmen's . Cumpensation for reconsideration and passing a fresh order so far as imposition of penaity is-concemed. 11. in ?he result, fhe appeal is allowed in part, the impugned award is sef aside to the extent it imposes penalty upon the appeliant/'employer and the matter is remitted back to thc CommissKiner, Vi/orkmen's Compensation, for passing a fresh order in respect of imposition of penalty upon the appeliant/employer, _^/ F:-1 ..SN \ »s iKl ti! I1 »1 ^ after affording a reasonabie opportunity of hearing to the parties, ii 12. Parties sh-al! appear before the Cornmissioner, Compensation on 8 September, 201 1. 13. LCR be sent back to the Commissioner without further delay. 14.No order as to costs. IS.Certified copy as per ruies. 'v\ • Sd/- G. Minhajuddin Judge ./^ "T ; r^: