JUDGMENT Hon’ble Amitava Lala, J.—All the appeals are analogously heard because a common question is involved herein. The common question is whether insurance company is liable to pay interest and/or penalty to the claimants even in absence of contract between the employer and insurance company or not. According to us, it is obviously a substantial question of law which requires consideration at the threshold. 2. First Proviso to sub-section (1) of Section 30 of the Workmen’s Compensation Act, 1923 (hereinafter called as Act, 1923) categorically says that no appeal shall lie against any order unless any substantial question of law is involved in the appeal. Therefore, no appeal can be said to be maintainable as a matter of course unlike the other law or laws available in this field. 3. Very often we come across the appeals from such type of orders passed by the respective Commissioners under Workmen’s Compensation Act, 1923 (hereinafter called as the Commissioner) under which the insurance companies are fastened with the liabilities to pay the interest and/or penalty irrespective of payment of compensation without verification of the contractual obligation between the employers and insurance companies. In the State of Uttar Pradesh, the posts of Commissioners under the Act, 1923 are being filled up by the members of the executives not by the members of the judiciary unlike other States. Instead of being proud position emerges to irrationality. It is not very far to say about ignorance of law but presently we say that the attitude prevailing in the field is mechanical. Hence, we want to give it to priority even at the stage of admission. 4. In New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya and another, (2006) 5 SCC 192 , the Supreme Court held that by reason of the provisions of the Act, an employer is not statutorily liable to enter into a contract of insurance unlike Section 147 of the Motor Vehicles Act, 1988. However, Section 17 of the Act, 1923 does not limit or make any restriction from contracting out between the employer and insurer. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided therein. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided therein. With a view to minimise his liability, an employer can contract out so as to make the insurer not liable as regards indemnifying him in relation to certain matters which do not strictly arise out of the mandatory provisions of any statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law. The entitlement of the claimant under the Act, 1923 is to claim the compensation from the employer. As between the employer and the insurer the rights and obligations would depend upon the terms of the insurance contract. 5. According to us, irrespective of the question of applicability of Section 17 with full force in this respect, we are of the view the Supreme Court has laid down the principle that insurance coverage is not mandatory under the Act, 1923, like other law or laws prevailing in the field but there is no prohibition in contracting out either for the principal sum or for interest and/or penalty. In other words, in absence of any clause in the contract regarding interest and penalty, the insurance company is not liable to pay any sum on account of interest and/or penalty. Therefore, payability to that extent lies with the employer. 6. We are of the view that there is other reason for which the interest and/or penalty cannot be directed to be paid by the insurance company. Section 4-A (3) of the Act, 1923 says that where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall direct the employer to pay the interest on the amount of arrears. In addition thereto, if there seems to have no justification for the delay in paying the amount of arrears and interest, a further sum by way of penalty will be directed to be paid. Therefore, the Court has to see whether any such occurrence is available on the part of the employer or not. In addition thereto, if there seems to have no justification for the delay in paying the amount of arrears and interest, a further sum by way of penalty will be directed to be paid. Therefore, the Court has to see whether any such occurrence is available on the part of the employer or not. The payment of interest and/or penalty is arising out of the fault of the employer and without determination of such fault the insurance company cannot be held liable. Even when an agreement of insurance coverage is made by the employer with the insurance company it will be the prime duty of the Commissioner to ascertain at whose fault the interest and/or penalty is liable to be paid. If there is no coverage it will be paid by the employer and if coverage is there then after determination of the fault so that payment and recovery of the amount by the insurance company cannot be extinguished. Firstly, it is under whose fault and secondly whether the insurance company will pay the said sum on account of fault of the employer or not. When an employer is statutory liable, the same will be strictly determined to give respect to the statute. Even if by virtue of the contract it is directed that the insurance company is liable to pay, it has to be ascertained by the appropriate Court that the employer was not at fault. Thus, the inference is that in case the coverage if it is evidently proved that the employer is liable to pay the amount of compensation to the ultimate sufferer without delaying the cause, the insurance company will be directed to pay and recover it since the statutory duty lies with the employer. Therefore, it requires further consideration by the appropriate Court and as such matters are remitted back to the appropriate Court to reconsider the issue in presence of the parties upon notice and giving adequate opportunity of hearing and to come to an appropriate finding thereof. If it is done, the principle of audi alteram partem will be fulfilled in its true sense before the Court where not only substantial question of law but factual ascertainment is needed to be considered. If it is done, the principle of audi alteram partem will be fulfilled in its true sense before the Court where not only substantial question of law but factual ascertainment is needed to be considered. Keeping the appeal pending for the sake of pendency is a matter of futility and therefore, orders are required to be set aside and are set aside hereunder and the matters are remitted back hereunder, however, without imposing any cost and with a caution that in the garb of the decision to be taken by the appropriate Court the payment of principal sum to the ultimate sufferer would not be stalled. 7. Accordingly, the appeals are treated to be disposed of even at the stage of admission, however, without imposing any cost. 8. All the pending matters on such ground are reviewed hereunder. Therefore, all such appeals are bound by this order subject to passing of a formal order as and when those will appear in the cause list. 9. A copy of this order will be supplied to the learned Additional Advocate General/the learned Chief Standing Counsel for perusal and necessary action, if required, with regard to observation made by the Court in the order itself. Hon’ble Shishir Kumar, J.—I agree. ————