Judgment Surinder Singh, J. Both the above titled appeals, one filed by M/s Sintex Industries and another by the workman, are arising from the judgment passed, on 17.8.2011 in Claim Application No.7/2 of 2001/2007, by the learned Commissioner under the Employee’s Compensation Act, 1923, in short “the Act” whereby Phool Kumar Workman hereinafter to be referred as “the claimant” has been held entitled to the compensation of `.4,88,981 with interest @ 12% p.m. from the date of accident till its deposit by M/s Sintex Industries Limited, referred as “the respondent”. 2. The claimant claims that he was employed about 8 days prior to the accident, as helper/ labourer @ `.120/- per day in the factory premises at Baddi on 7.3.2006. (ii) According to him, on 7.3.2006 at about 12.30 p.m., Supervisor of the respondent directed him and other labourers, namely Har Kishore etc. to push the ladder. While doing so, the ladder touched high tension wires running over the factory. He got electrocuted and sustained burn injuries and other labourers also sustained injuries. The respondent took him to ‘Bhardwaj Hospital’, Baddi, where he was given first-aid, from there he was referred to CHC Nalagarh and then to PGI Chandigarh; where he remained hospitalized for 19 days w.e.f. 25.3.2006 to 12.4.2006. His right leg could not be cured as such it was amputated beyond thigh rendering him 100% disabled, thus lost his future earning and claimed `.6 lacs as compensation. 3. In reply, the respondent denied relationship of the employer and employee and also denied the accident in factory premises. It is further contended that Employees’ State Insurance Act, 1948 applies to the industrial establishments which covers its workers and denied their liability to pay compensation. 4. The final shape of controversy was summed up by forming following issues by the learned Commissioner:- “1. Whether the applicant was employee of the respondent and employed as Labourer/ Helper by the respondent at Baddi in the Factory Premises, as alleged? …OPA. 2. Whether the applicant suffered injuries during the course of employment of respondent, as alleged? …OPA. 3. Whether the applicant is entitled for compensation, if so, what amount? …OPA. 4. Whether the application is not maintainable, as alleged? …OPR. 5. Relief.” 5. Both the parties led their evidence. …OPA. 2. Whether the applicant suffered injuries during the course of employment of respondent, as alleged? …OPA. 3. Whether the applicant is entitled for compensation, if so, what amount? …OPA. 4. Whether the application is not maintainable, as alleged? …OPR. 5. Relief.” 5. Both the parties led their evidence. The learned Commissioner after hearing the parties decided all the issues is favour of the claimant, thus awarded compensation to the tune of `.4,88,981/- with interest @ 12% per annum, which has been challenged by the respondent concern by filing present FAO (ECA) No.378 of 2011 and admitted for hearing prima-facie on the following substantial questions of law: “1. Whether the Commissioner, Employees Compensation has erred in law in not appreciating Section 2(e), 2 (n) and Section 4, Schedule 1 part 2 of Workmen Compensation Act and thus resulting in error of law apparent on face of record. If so its effect? 2. Whether the Commissioner Employees Compensation has erred in law in not appreciating that there existed no relation of employer and employee between appellant and respondent and also brushed aside the statement of respondent that no evidence can be produced regarding employment with appellant thus resulting in wrong findings. If so its effect? 3. Whether the Commissioner, Employees Compensation has erred in law in taking 120/- as wages per day and brushing aside notification of Government of Himachal Pradesh in respect of minimum wages for unskilled workers during the said period 80 per day and thus resulting in wrong finding and error of law apparent on face of record. If so its effect?” 6. The claimant also felt aggrieved by not awarding penalty as such filed FAO (WCA) No.40 of 2012, which was admitted on the following substantial question of law:- “Whether the learned Commissioner below is right in not awarding the penalty to the extent of 50% in favour of the appellant, especially when there is no justification in not depositing the amount by the respondent after the accident which occurred on 7.3.2006 till passing the award?” 7. The learned counsel for the parties made their submissions exhaustively. 8. Shri Rahul Mahajan, learned counsel for the respondent argued that there is no relationship of employer and employee. Otherwise also a casual worker is not entitled for compensation. The claimant did not examine any of the eye witnesses of the occurrence. The learned counsel for the parties made their submissions exhaustively. 8. Shri Rahul Mahajan, learned counsel for the respondent argued that there is no relationship of employer and employee. Otherwise also a casual worker is not entitled for compensation. The claimant did not examine any of the eye witnesses of the occurrence. RW1 Abhey Kumar Saxena in his statement denied the accident even the daily wages as contended. According to the learned counsel, the minimum wages at the relevant time was ` 70/-to the unskilled workers as per Notification No. Shram(A)9-5/2002 dated 8th published in Himachal Pradesh Rajpatra dated 3.6.2005, therefore, the amount awarded is otherwise too excessive. It is also submitted that no issue was framed qua penalty nor any notice was ever served, therefore, cross appeal deserves to be dismissed. 9. Shri J.L. Bhardwaj, learned counsel for the claimant rebutted the above arguments by submitting that once the learned Commissioner on the evidence on record has come to the conclusion that there has been a relationship of an employer and employee, it cannot be challenged in appeal, being not a substantial question of law. He further argued even if a worker is employed for a day he is entitled for compensation in case of any such accident and if the amount is not deposited immediately after the accident, the claimant is entitled for penalty as per law in addition to the amount awarded. 10. I have given my thoughtful consideration to the rival contentions and have examined the record carefully, but I did not find any substance in both the appeals, thus, both deserve dismissal, for the reasons mentioned hereinafter. 11. The case of the injured-petitioner as testified by him when appeared as PW1 before the learned Commissioner is that on 7.3.2006 at about 12.30 PM, he was discharging his duties as directed by the respondent’s Supervisor. This fact stands corroborated by PW2 Kalu another labourer. It is proved that the injured was employed only eight days prior to the accident @ `.120/- per day, but his name did not figure in the Attendance Register Ext.R-1 maintained by the respondents, but RW-1 Shri Abhey Kumar Saxena categorically admitted in cross-examination that as and when respondent-Company intends to do some extra work, the casual labourers are employed. Therefore, in that event, the attendance rolls may not be maintained by them. Therefore, in that event, the attendance rolls may not be maintained by them. He expressed his inability to say whether record of such extra workers is kept by the respondent-Company. He also stated that in the year 2006, the factory had one Contractor and some persons were having A.M.C. The learned Commissioner noticed the above fact and also the plea of the injured-petitioner that he had also not claimed himself to be a permanent employee of the respondent-Company. Thus, it was rightly concluded by him that the accident took place during the course of executing the work as per instructions of the Supervisor of the respondent-Company, which findings are based on evidence on record. Therefore, in these circumstances, it must be held that the respondent-Company is employer of the claimant for the purpose of Section 2(e) of the Act, irrespective of the fact that the claimant was on a casual employment for the last eight days on daily wages. Therefore, it being so, the monthly wages have to be calculated as per Section 5 of the Act, more specifically when the Statute prescribes a particular method for calculating monthly wages and the Commissioner or Court cannot deviate from the same. 12. The notification qua the minimum wages as contended by the learned counsel for the respondent-firm will not come in the way when there is categoric assertion by the claimant that he was being paid `.120/- per day. It could only be taken into consideration in case neither the employer nor employee state about the wages. 13. Thus, where the whole of the continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the workman under Section 5(b) of the Act shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a workman employed on the same work by the same employer, or, if there was no workman so employed, by a workman employed on similar work in the same locality. Thus, calculating `.120/-per day into thirty times, the wages of the claimant was rightly assessed at `.3600/-per month on the date of accident as per law existing at that time. 14. Thus, calculating `.120/-per day into thirty times, the wages of the claimant was rightly assessed at `.3600/-per month on the date of accident as per law existing at that time. 14. Further, on the date of accident, the injured-claimant was aged about 18 years, as per his School Leaving Certificate Ext.P2 wherein his date of birth is recorded as 3.5.1987 which remained un-shattered. Thus, as per Schedule-IV of the Workmen’s Compensation Act, the relevant factor was rightly applied to 226.38. 15. Keeping in view his injuries causing permanent disability, as specified in Part-II of Schedule-I of the Act, is 100% qua his earning as a labourer despite the fact that the doctor stated it was 80%, because such a disability has materially effected his earning capacity cent per cent. Thus, the monthly wages of `.3600/- per month aforesaid and his age and loss of earning capacity to the extent of 100% by applying the relevant factor, the total compensation comes to `.4,88,991/- which was rightly awarded with simple interest @ 12% per annum from the date of the accident when it fell due, till its deposit. 16. Thus, I find that the learned Commissioner on the basis of the evidence found and held that the claimant was employed by the respondent he sustained injuries during the course of his employment, which caused permanent disability in the manner aforesaid which is a finding of fact. Thus, challenge to it is not maintainable, because Section 30 of the Act envisages that the appeal is only maintainable in the High Court on the substantial questions of law. In such view of the matter, while putting reliance on United India Insurance Co. Ltd. v. Chanchala Devi and another [ 2005 ACJ 777], I am unable to concur with the contention raised by Shri Rahul Mahajan, learned counsel for the respondent-firm. 17. Further, also in V. Raveendran v. B. Somavally, [1995 LAB.I.C. 2765], the Division Bench of the Kerala High Court held that the question as to whether or not the workman was at the time of the accident employed by the employer and whether or not the accident resulting in injury took place during the course of employment are all questions of fact on which no appeal lies under Section 30 of the Act, as it clearly restricts the right of appeal to substantial questions of law. Where on a particular point, there is evidence for and against, and a finding is recorded by the Commissioner, on taking a particular view of the evidence, it cannot be questioned howsoever, as no question of law can be said to have arisen in such cases. Only in cases where the Commissioner has clearly misdirected himself on a question of law or a finding is recorded without any evidence whatsoever, or a perverse finding is reached which no reasonable man would reach, it can be said that a question of law has arisen, which the Court may consider it to be a substantial one. 18. In the instant case, the workman is proved to have sustained injuries in the accident as stated by him, arising out of and in the course of employment is supported by evidence and so found by the Commissioner, thus it is purely a question of fact, hence the appeal on this ground is not maintainable. { Please see General Manager, Western Railway, Bombay v. Mrs. Menaca D. Macwan and others [1977 ACJ 101 (DB)]. 19. Therefore, in the instant case, no question of law much-less the substantial questions of law arises. Accordingly, the appeal filed by the respondent M/s Sintex Industries Limited is dismissed. 20. Insofar as the cross-appeal by the injured, seeking penalty is concerned, is also devoid of any merit. The imposition of penalty without framing an issue or without affording the respondent-firm an opportunity of hearing regarding the imposition of penalty or its quantum is in my view not valid in law. Though the question of framing an issue or putting the respondent-firm on notice of the proposal are really matters of fair play and fair procedure relating to the principles of natural justice, yet Section 4-A(3) on its terms does not contain any provision for framing of an issue or for hearing an employer before imposing penalty, or regarding its quantum, but however, it is a requirement of natural justice because it is penal in nature. This apart the proviso to Section 4-A(3) prescribes 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. This apart the proviso to Section 4-A(3) prescribes 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. It mandates that no order for the payment of penalty is to be passed under clause (B) without affording an opportunity to the employer to show cause why it should not be passed. In fact, as a quasi-judicial authority exercising statutory powers involving determination of rights of parties, it is elementary that the Commissioner should observe the rules of natural justice in the performance of his functions. In fact, it is within the domain of the Commissioner to decide whether the penalty should be imposed or not, therefore, the question of imposition of penalty would arise for his consideration even without a specific plea in that behalf made by the workman. Since the question of imposition of penalty is thus a matter which will necessarily arise for consideration while passing an award, it will be prudent and advisable for the Commissioner to frame an issue as to whether the penalty is imposable under Section 4-A(3) and if so, the quantum thereof to enable the parties to address themselves on this aspect as well as affording them opportunity of hearing. As already stated above, it is a penal provision, thus, imposing penalty on the employer and the satisfaction of the Commissioner contemplated therein should be based on material. It has to be reached on a conspectus of all the facts and circumstances of the case. There may be various reasons why the employer is not liable for the penalty and there can also be various reasons for non-payment of the amount of compensation on the due date or for its delayed payment. The employer may be able to point out justifiable reasons for the delay or the non-payment. In any case, he may also be able to make out sufficient reasons why the penalty should either be waived or to be fixed at a low amount. In fact, the section vests a discretion in the Commissioner in the matter of penalty, the prescription being only the maximum. In this behalf, reliance can also be put to M/s Oriental Insurance Co. Ltd v. Sri Chotelal Mahato and another [ 2002 (95) FLR 96] and Rajan v. Subramonian [1994 ACJ 25]. In fact, the section vests a discretion in the Commissioner in the matter of penalty, the prescription being only the maximum. In this behalf, reliance can also be put to M/s Oriental Insurance Co. Ltd v. Sri Chotelal Mahato and another [ 2002 (95) FLR 96] and Rajan v. Subramonian [1994 ACJ 25]. Therefore, in my considered opinion, the penalty cannot be imposed as a matter of course. It is the discretion of the Commissioner based upon the facts agitated before him which must be exercised and that too judiciously and after framing the issues and due consideration on the relevant circumstances, after affording due opportunity of hearing to the employer or delay in making the payment, which fact was not raised by the claimant at the time of issues and even thereafter. Further, on passing the judgment, the respondent-firm had deposited the amount with interest, therefore in view of the above situation, this Court would not like to interfere in appeal with the award passed by the learned Commissioner, on the point of penalty, as such the appeal of the claimant is also dismissed. 21. For the reasons above mentioned, both these appals are dismissed as no substantial question of law exist. Application(s), if any, stands also dismissed. 22. Consequently, the injured petitioner is entitled for the release of the amount alongwith interest accrued thereon, which stands deposited before the learned Commissioner below. 23. Parties to bear their own costs. Send down the records.