JUDGMENT : As per I.M. Quddusi, J.:- 1. This appeal has been filed by the employer against the impugned award 21-9-2006 passed by the Commissioner for Workmen's Compensation Act (Labour Court), Rajnandgaon in Case No. 1/WC Act/05 (Fatal) directing to deposit compensation of Rs. 3,38,880/- along with interest @ 6% per annum as also the penalty @ 30% of the award that is Rs. 1,01,664/-. 2. This appeal was admitted by order dated 22-12-2006 on the following substantial question of law :- "Whether learned Commissioner for Workmen's Compensation, Rajnandgaon vide its Award dated 21-9-2006 was justified in imposing a penalty of Rs. 1,01,664/- (Rupees One Lakh one thousand six hundred sixty four) without issuing any show-cause notice and without affording any opportunity of being heard to the appellant ignoring the provision of Section 4-A (3) (b) of Workmen's Compensation Act, 1923 ?" 3. During the course of hearing the following substantial questions of law are found to be involved in this appeal :- (i) Whether the Commissioner could award an interest lesser than provided in the statute, i.e.. Section 4-A (3) (a) of the Act, 1923. (ii) Whether the amount fell due would be paid from the date of accident or the date of adjudication by the Commissioner or any other date. 4. Brief facts of the case are that the claimants have filed an application under Section 22 and 23 of the Employee's Compensation Act, 1923 for award of compensation stating inter alia that the deceased Punauram Satnami was working as labour in the warehouse of non-applicant No.1 situated in Village Manpura, Tehsil Pandariya. The Chhattisgarh State Warehouse/respondent No. 5 deals in storing goods at large. Appellant/Chhattisgarh State Civil Supplies Corporation handed over the task of storing its goods to respondent No. 5. On 5-2-2004, Punauram was taking out the rice bags of the appellant from the godown of respondent No. 5. While pulling out the rice bag from the stock pile, suddenly some stacked rice bags fell on him and he was pressed under those bags, as a result of which, he sustained grievous injuries on his head, neck and back and died on 7-2-2004 during the course of treatment in Ambedkar Hospital. At the time of accident, the deceased was aged about 45 years and was earning Rs. 4000/- per month. The claimants being legal representatives have claimed compensation to the tune of Rs. At the time of accident, the deceased was aged about 45 years and was earning Rs. 4000/- per month. The claimants being legal representatives have claimed compensation to the tune of Rs. 4,00,000/- for the death of deceased. 5. Before proceeding further it is necessary to peruse the definition of "employer" given in sub-section (e) of Section 2 of the Workmen's Compensation Act, which is quoted below :- "2. (e) "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him." 6. Section 4-A (1) provides that compensation under Section 4 shall be paid as soon as it falls due. The provisions regarding imposing of interest as well as penalty have been given in clauses (a) and (b) of sub-section (3) of Section 4. Therefore, the provisions of Section 4-A are also liable to be perused which are quoted as under :- "4-A. Compensation to be paid when due and penalty for default.- (1) Compensation under Section 4 shall be paid as soon as it falls due. (2) 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 extent 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. (3) 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- (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 arty 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 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 be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. Explanation :- For the purposes of this sub-section, "scheduled bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934)." 7. learned Counsel for the appellant has submitted that the deceased was not an employee of the appellant but he was an employee of respondent No. 5 (Mukaddam) who was doing work for the appellant and engaged workmen for undertaking the work of the appellant. 8. A perusal of the evidence of non-applicant witness namely Jitendra Kumar, who was District Manager of appellant/State Civil Supplies Corporation, shows that he has admitted in his cross-examination that the names of labourers engaged on 5-2-2004 were mentioned in the Register. Hut the said register was not produced in the Court by the appellant. The learned Commissioner has held that negligence on the part of appellant is made out; the appellant has not explained any justified reasons in not filing the crucial documents and the deceased was working under the control of the appellant. 9. In view of the above discussion, we are of the opinion that the appellant is an employer within the definition of "employer" given in Section 2 (e) of the Act. 10. Learned Counsel for the appellant has further submitted that the Commissioner has wrongly assessed the monthly income of the deceased as Rs. 9. In view of the above discussion, we are of the opinion that the appellant is an employer within the definition of "employer" given in Section 2 (e) of the Act. 10. Learned Counsel for the appellant has further submitted that the Commissioner has wrongly assessed the monthly income of the deceased as Rs. 4000/- per month as there was no proof of the same and in absence of any proof, the minimum wages prevailing at the time of accident should have been counted that was Rs. 2205/- per month. If that is the position then it would be deemed that the appellant should have at least deposited the compensation @ Rs. 2205/- per month after calculating in accordance with the relevant factor and the age given under the Workmen's Compensation Act in view of sub­section (2) of Section 4-A, which provides that in case the appellant employer does not accept the liability for compensation, he shall be bound to make provisional payment based on the extent of liability which he accepts, and. such payment shall be deposited with the Commissioner or made to the workman without prejudice to the right of workman to make any further claim. In other words, in the first place the employer has to accept and make the payment either to the workman or to deposit with the Commissioner, but that has not been done in the instant case. Therefore, it cannot be said that there was no delay on the part of the employer in making payment of admitted liability by it. 11. Further clause (a) of sub-section (3) of Section 4-A of the Act provides that a simple interest on the amount of arrears @ 12% 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 is liable to be paid under the directions of the Commissioner and the Commissioner shall direct for that but shall denote the mandatory provision. In that view of the matter, the Commissioner was not empowered to exercise his discretion in reducing the percentage of the interest. In any case, minimum interest @ 12% per annum is to be imposed by the Commissioner and therefore, in our opinion, the Commissioner has erred in granting simple interest @ 6% per annum. 12. In that view of the matter, the Commissioner was not empowered to exercise his discretion in reducing the percentage of the interest. In any case, minimum interest @ 12% per annum is to be imposed by the Commissioner and therefore, in our opinion, the Commissioner has erred in granting simple interest @ 6% per annum. 12. Further, if the minimum wages is to be counted and the appellant comes within the definition of 'employer' and the amount due has not been paid despite service of notice upon it and even after the expiry of one month from the date appearance before the Commissioner, in such circumstances, at least the Commissioner should have considered the grant of interest from the date of expiry of one month of the date of appearance as the amount should have fallen due at least on the date of appearance before Commissioner. 13. It is also to be noticed that penalty @ 30% has been imposed by the Commissioner without giving any reasonable opportunity. In this regard, proviso to sub-section (3) of Section 4-A, as quoted above, clearly provides that no penalty can be imposed without affording reasonable opportunity to the employer to show cause why it should not be imposed. Therefore, it is mandatory provision and before imposing penalty, opportunity was liable to be given which has not been given in the instant case. 14. Since all the above aspects have not been considered by the Commissioner, we are of the opinion that the matter requires reconsideration at its end and therefore, we allow this appeal in part and remit the matter to the Commissioner for adjudication afresh at earliest. 15. The amount which is already in deposit shall be kept in fixed deposit in any Nationalized Bank so that interest may accrue (hereon and the same shall be subject to the final decision afresh by the Commissioner in the matter. 16. The parties shall appear before the Commissioner on 21st of September, 2011. The Lower Court Record shall be sent back without further delay.