B. J. SHETHNA, J, J. ( 1 ) THIS First Appeal is filed by the Gujarat Electricity Board and its superintending Engineer under section 30 of the Workmens Compensation Act, 1923 (hereinafter referred to as "the Act") against the judgment and award dated 9th July, 1992 in Workmen Compensation Application No. 9 of 1991 by the Commissioner for workmens Compensation, jamnagar, whereby the learned Commissioner partly allowed the application of the workman and awarded Rs. 89245/- to the workman instead of Rs. 92085/- claimed by him with interest at the rate of 6% per annum and also awarded penalty at the rate of 35% over the amount of compensation. ( 2 ) THOUGH this being a First Appeal, under the First Proviso to section 30 (1) of the act, no appeal shall lie against any order unless a substantial question of law is involved in the appeal. Mr. Pandya, learned counsel for the appellants has restricted his challenge in this appeal only to the order of penalty passed by the learned Commissioner. He has framed the following substantial question of law in this appeal for the determination by this Court whether in case of a non-scheduled injury where the employee has failed to produce disability certificate despite being so required, the imposition of burden of penalty is sustainable at law? ( 3 ) MR. Pandya submitted that this is a case where the appellants were always ready and willing to deposit the amount of compensation with the learned Commissioner, but they could not deposit the same only because the workman failed to produce the medical certificate of non-scheduled injuries which were received by him. He further submitted that repeatedly the workman was called upon to produce the medical certificate regarding his injuries, but he had not responded to the same. Not only that, an application dated 27-8-91 (Ex. 14) was also moved by the appellants before the learned Commissioner for production of the disability certificate by the workman and though the learned commissioner also passed an order and called upon the workman to produce the certificate by his order dated 27th Septmeber, 1991 the same was not produced. He, therefore, submitted that the Commissioner committed a grave error of law in awarding penalty at the rate of 35% over the amount of compensation. ( 4 ) MR. He, therefore, submitted that the Commissioner committed a grave error of law in awarding penalty at the rate of 35% over the amount of compensation. ( 4 ) MR. Pandya, for making his submission good, has taken me through the entire evidence on record and other relavant documents which were in his file. Section 4a (3) of the Act provides that "where anyemployer is in default in paying the Compensation due under the Act within one month from the date it fell due, the commissioner may direct that in addition to the amount of the arrears, simple interest at the rate of 6% per annum on the amount due together with, if in the opinion of the commissioner there is no justification for the delay, a further sum not exceeding 50% of such amount shall be recovered from the employer by way of penalty" Mr. Pandya submitted that in this case, the appellants were always ready and willing to deposit the amount of compensation with the learned Commissioner, but they were handicapped and could not deposit the said amount because the medical certificate of the injuries was not produced by the workman. Thus, on the facts and in the circumstances of the case, according to him, it cannot be said that there was a delay on the pan of the appellants in depositing the amount of compensation with the learned Commissioner. He submitted that as soon as the medical certificate dated 12th February 1992 was received from the hospital, they immediately asked the teamed Advocate by their letter dated 29th April, 1992 to deposit the amount of Rs. 89245/- and the said amount was immediately deposited by the learned Advocate with the Commissioner. Mr. Pandya further invited my attention to the provisions of section 4 (1) (c) (ii) of the Act and submitted that the injuries received by the workman were non-scheduled injuries and, therefore, permanent total disablement was required to be assessed by the qualified medical practitioner as is proportionate to the loss of earning capacity and unless and until this is done, the appellants could not deposit the amount of compensation. He further submitted that the learned Commissioner himself has observed in this case that the workman has not produced the disability certificate. Inspite of that, the Commissioner awarded penalty. He further submitted that the learned Commissioner himself has observed in this case that the workman has not produced the disability certificate. Inspite of that, the Commissioner awarded penalty. He further submitted that as a good gesture, the employer has obtained the certificate and produced it before the Commissioner without which the workman, perhaps, would not have got the amount of compensation at all. ( 5 ) THE submissions made by Mr. Pandya look very attractive at first sight, but they are without any substance and, therefore, they are required to be rejected. It is to be noted that on 22nd August, 1990 at 8. 00 a. m. , the workman, admittedly an employee of the appellants, was on duty and met with an accident when he had gone to Nandanvan society for installing new electric line and when the workman was on the electric pole for that purpose, he got electric shock, as a result thereof he fell down and became unconscious there and there. Due to fall, he received serious injuries i. e. on his lege, his back and on the spinal cord. Because of that he was confined to bed and thereby incurred 100% permanent disability. It appears from the record that the Panchanama of the incident was also drawn. The workman was immediately removed to Irwin Hospital. But for further treatment he was removed to a private hospital of Dr. V. M. Shah where he was treated as an indoor patient for about 4 to 5 months. Due to injuries, he suffered 100% permanent disability. He was unable to move and thus incurred loss of 100% earning capacity as he was unable to do any work for ever. The fact regarding the accident was immediately brought to the notice of the appellants. They were very much aware about the incident. Not only that they were also aware about the physical condition of the workmen. It also appears from the record of the case that because the workman filed a case before the learned Commissioner for Workmen Compensation, his pay was also stopped for which a grievance was made on behalf of the workman. It was an admitted position that for number of months together, the workman was not able to attend his duties as he was confined to bed. It was an admitted position that for number of months together, the workman was not able to attend his duties as he was confined to bed. It is also an undiputed fact that in this case the workman has not entered into witness box as he was unable to move out because of the injuries received by him in the accident. It also appears from the record that on 21st September, 1990 a registered notice was also given on behalf of the workman to the appellant Board. Though the said notice was given, nothing was done. Therefore, the workman was obliged to file workman Compensation Application No. 9 of 1991 before the learned Commissioner for workmen Compensation at Jamnagar on 30-1-91 and claimed Rs. 9208s on the basis that he was 40 years old at the time of the accident; his monthly salary was Rs. 1600, and there was 100% total permanent disability. Thus, considering other relevent factar, he was entitled for 184. 17 and, therefore, in all he claimed Rs. 92085/ -. On 20th February 1991 reply (Ex. 8) was filed by the appellants. In para 7 of the reply, they admitted that they were aware about the incident, but they are not liable to pay penalty, because the calculations were to be based on the disability certificate which was not produced by the workman, and therefore unless and until the disability certificate is produced, it was not possible for them to make calculations and deposit the amount As per the reply, the age of the workman was 42 and not 40 years and the factor would be 178. 49, if die disability is 100% and the workman would be entitled to Rs. 89245/ -. ( 6 ) THUS, it clear is that not only the appellants were aware of the incident but they were also aware of the fact that they were required to deposit Rs. 89245/ -. If not Rs. 92085/ -. as the workman was 42 years and not 40 years on the basis of disability. 89245/ -. ( 6 ) THUS, it clear is that not only the appellants were aware of the incident but they were also aware of the fact that they were required to deposit Rs. 89245/ -. If not Rs. 92085/ -. as the workman was 42 years and not 40 years on the basis of disability. It is to be noted that section 4 A (2) of the Act provides that in cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the event of liability which he accepts, and such payment shall be deposited with the commissioner, or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim. This is a case where the appellants were aware about the accident and also to some extent the injuries received by the workman as another co-workman working with him was present at the time of the accident. The very fact that the wrokman had to remain as an indoor patient first in Irwin Hospital for some time and thereafter for about 4 to 5 months in a private hospital would suggest that the workman had become totally disabled and incurred 100% permanent disability. It is interesting to note that the appellants are trying to show their bonafide from the fact that since 30th November, 1990 they were trying to obtain the certificate regarding the injuries to the workman from the Dean of Irwin Hospital but they could not get it till 12th February 1992 and as soon as they received that certificate dated 12th February, 1992 from the Dean, Irwin Hospital, Jamnagar, without wasting much time by letter dated 29th April, 1992 they asked their Advocate to deposit the amount of compensation. Thus, they claimed that there was no delay on their part. Now, it is to be noted that throughout their case was that the workman had to produce the medical certificate and it is an admitted fact that the workman was not able to produce that certificate before the learned Commissioner. Now, if they were really worried about the workman, then nothing would have prevented them from approaching the Dean, Irwin hospital, immediately in November, 1990 itself and obtainted the certificate regarding his injuries. Now, if they were really worried about the workman, then nothing would have prevented them from approaching the Dean, Irwin hospital, immediately in November, 1990 itself and obtainted the certificate regarding his injuries. However, by entering into correspondence with the hospital authorities for about more than one year and four months, the appellants delayed in obtaining the certificate. In any case, on the facts and in the circumstances of the case, it cannot be said that the appellants were justified in depositing the amount late with the learned Commissioner. Under the Act, the Commissioner has got discretion to award penalty, if in his opinion there was no justification for the delay in paying the compensation due under the Act within one month from the date it fell due, then he can award a further sum not exceeding 50% of such amonut by way of penalty. The Commissioner has found, vide para 10 of his award, that even referring to the written statement of the appellants, they admitted the fact of the accident. Thus, they were well knowing about the accident. The employer was or was not justified for the delay is a question of fact and it cannot be gone into in this appeal. It cannot be said to be a question of law much less a substantial question of law. In any case, The above question, which has been raised by Mr. Pandya in this appeal, loses all its importance in view of the fact that the disbility certificate was produced by none else but the employer himself. At this stage, Mr. Pandy has pointed out that the medical certificate itself has not come on the record and the appellants on receipt of the same from Irwin Hospital, on their own deposited the amount with the Commissioner. If that is so, then it is all the more a good reason for this Court not to interfere with the order passed by the learned commissioner awarding penalty in this appeal. In view of the above discussion this appeal fails and is dismissed. As the main appeal is dismissed, Civil Application No. 1144 of 1994 for stay is rejected. .