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2016 DIGILAW 426 (GUJ)

Divisional Railway Manager, Ahmedabad v. Jasiben

2016-02-22

PARESH UPADHYAY

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JUDGMENT : Paresh Upadhyay, J. 1. Challenge in this petition is made by the Employer-the Railway Authorities to the order passed by the Labour Court, Ahmedabad-cum-Commissioner under the Workmen Compensation Act, 1923 dated 31.1.2015 below Application Exh. 8 in Distribution Application No. 13 of 2014. By the impugned order, the Commissioner has ordered payment of interest at the rate of 12% per annum, on the principal amount of compensation of Rs.2,71,120/- for the period from 17.5.2007 i.e. the date of fatal accident to 17.2.2014, the date on which the principal amount was deposited by the petitioner Employer. Mr. Anal S. Shah, learned advocate for the petitioner Employer has made the following submissions: It is submitted that the impugned order is passed in the proceedings of the distribution application for the principal amount of compensation deposited by the petitioner and thus the grant of interest by the impugned order, was beyond the scope of the proceedings and therefore the impugned order needs to be interfered with. It is further submitted that the respondent - claimants, at the best, could have moved an application under section 10(1) of the Act, for which, it was incumbent upon them to give explanation for approaching the Court beyond the period of two years, and only if the Court was satisfied, then notice could have been issued to the petitioner, that too, in the prescribed procedure and under the Rules, to which the petitioner department could have offered explanation and then appropriate adjudication could have taken place. It is submitted that, the Commissioner having dispensed with all these procedural aspects has committed error, for which the indulgence of this Court is required. It is submitted that reading of section 4-A(3) or section 22-A of the Act, can not be independent of section 10 of the Act. It is submitted that this petition be allowed and the impugned order be quashed and set aside. In support of these submissions, learned advocate for the petitioner has relied on the decision of Hon'ble the Supreme Court of India in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC He has however also drawn the attention of this Court to the decision of this Court in the case of Chiman Surakhia Vasava v. Ahmed Musa Ustad and others, 1986 GLH 812 2. On the other hand, Mr. On the other hand, Mr. Yogen Pandya, learned advocate for the respondent-claimants has submitted that even in absence of any application, the direction as contained in the impugned order, could have been given by the Commissioner and the language of section 10 of the Act itself, which is heavily relied by learned advocate for the petitioner also provides that, even in absence of any such notice, appropriate order can be passed by the Commissioner. It is submitted that ultimately this is a welfare legislation and what is ordered by the Court below is not otherwise impermissible and the procedural aspect, which is even otherwise not flouted in the present case, should not affect the substantial adjudication. It is submitted that this petition be dismissed. 3. The undisputed facts, as emerging from the record, are as under: 3.1 The fatal accident had taken place on 17.4.2007. 3.2 The said accident was in the course of the employment. 3.3 The person who died of the said accident, was the 'Employee' of the petitioner within the meaning of the Employee's Compensation Act, 1923 and the petitioner Authority is the 'Employer' with in the meaning of this Act. 3.4 The principal amount of compensation is calculated to be Rs. 2,71,120/- and there is no dispute by either side with regard to the said calculation. 3.5 The said amount was required to be deposited, as per the statutory provision, within a period of 30 days from the date of accident. Thus the said amount was required to be deposited on or before 17.5.2007. The said amount was deposited on 26.2.2014. There is no explanation by the Employer for not depositing the amount of Rs. 2,71,120/- for the period from 17.5.2007 to 26.2.2014. 3.6 On the said amount having deposited by the Employer before the Commissioner, distribution proceedings were undertaken which is numbered as Distribution Application No. 13 of 2014. 3.7 In the said proceedings, an application (Exh. 8) was filed on behalf of the claimants, for issuance of notice to the employer, for payment of interest and penalty. Such notice was issued to the petitioner which is responded also by the department and the case of the department is considered by the Commissioner on merits. 3.8 After such consideration the impugned order is passed which is in two part. Such notice was issued to the petitioner which is responded also by the department and the case of the department is considered by the Commissioner on merits. 3.8 After such consideration the impugned order is passed which is in two part. The first part orders payment of interest at the rate of 12% per annum, on the principal amount of compensation of Rs.2,71,120/- for the period from 17.5.2007 i.e. the date of fatal accident to 17.2.2014, the date on which the principal amount was deposited by the petitioner Employer. By the second part of the impugned order request of the claimants to award penalty against the petitioner is rejected. 3.9 The refusal to order penalty is not the subject matter of this petition. The award of interest is questioned by the petitioner, principally on the procedural aspects. No contest is put forward before this Court that, considering the statutory provisions, otherwise the interest is either not payable at the rate as ordered by the Commissioner, or it is otherwise inconsistent with any of the statutory provisions. The contentions pressed into the service on behalf of the petitioner Authority, as recorded above are only to the effect that, in the distribution proceedings, this ought not to have been done and the only proceeding which could have been taken out by the claimants, could be invoking section 10 of the Act, which is not done. 4. To examine the above submissions, the scheme of the Act needs to be considered. The relevant sections which need to be kept in view are sections 4, 4-A, 22-A vis-a-vis section 10 of the Act. 4.1 The quantification of the amount of compensation is provided in section 4, the relevant portion of which reads as under. "4. Amount of compensation--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-- (a) where death results from the injury - an amount equal to fifty per cent of the monthly wages of the deceased employee multiplied by the relevant factor; or an amount of One lakh and twenty thousand rupees, whichever is more; (b) Where permanent total disablement results from the injury, (2) .................. (3) .................. (3) .................. (4) If the injury of the employee results in his death, the employer shall, in addition to the compensation under sub-section (1) deposit with the Commissioner a sum of not less than five thousand rupees for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure." 4.2 The period within which the compensation needs to be paid and in default thereof, what interest and penalty is to be paid is provided in section 4-A of the Act. The relevant thereof reads 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 employee as the case may be, without prejudice to the right of the employee 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 any 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 a 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. (3-A) The interest and penalty payable under sub-section (3) shall be paid to the employee or his dependant, as the case may be.]" 4.3 When the employee does not do anything on his own, what the claimant is expected to do is provided in section 10 of the Act. The relevant portion thereof reads as under: "10. Notice and claim--(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death: Provided that, where the accident is the contracting of a disease............ Provided further that in case of partial disablement............. Provided further that if an employee who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms............... Provided further that in case of partial disablement............. Provided further that if an employee who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms............... Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim-- (a) if the claim is preferred in respect of the death of an employee resulting from an accident which occurred on the premises of the employer, or at any place where the employee at the time of the accident was working under the control of the employer or of any person employed by him, and the employee died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or (b) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured employee was employed had knowledge of the accident from any other source at or about the time when it occurred: Provided further, that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause. (2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed. (3) The State Government may require that any prescribed class of employers shall maintain at their premises at which employees are employed a notice-book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured employee employed on the premises and to any person acting bona fide on his behalf. (4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-book is maintained, by entry in the notice-book." 4.4 The obligation cast upon the Employer in case of fatal accident can be traced in section 10-A of the Act. The relevant part thereof reads as under: "10-A. Power to require from employers statements regarding fatal accident.--(1) Where a Commissioner receives information from any source that an employee has died as a result of an accident arising out of and in the course of his employment, he may send by registered post a notice to the workman's employer requiring him to submit, within thirty days of the service of the notice, a statement, in the prescribed form, giving the circumstances attending the death of the employee, and indicating whether in the opinion of the employer, he is or is not liable to deposit compensation on account of the death. (2) If the employer is of opinion that he is liable to deposit compensation, he shall make the deposit within thirty days of the service of the notice. (3) If the employer is of opinion that he is not liable to deposit compensation, he shall in his statement indicate the grounds on which he disclaims liability. (2) If the employer is of opinion that he is liable to deposit compensation, he shall make the deposit within thirty days of the service of the notice. (3) If the employer is of opinion that he is not liable to deposit compensation, he shall in his statement indicate the grounds on which he disclaims liability. (4) Where the employer has so disclaimed liability, the Commissioner, after such enquiry as he may think fit, may inform any of the dependants of the deceased workman that it is open to the dependents to prefer a claim for compensation, and may give them such other further information as he may think fit." 4.5 Section 22-A of the Act confers further powers on the Commissioner in case of fatal accident, in the following terms: "22-A. Power of Commissioner to require further deposit in cases of fatal accident--(1) Where any sum has been deposited by an employer as compensation payable in respect of an employee whose injury has resulted in death, and in the opinion of the Commissioner such sum is insufficient, the Commissioner may, by notice in writing stating his reasons, call upon the employer to show cause why he should not make a further deposit within such time may be stated in the notice. (2) If the employer fails to show cause to the satisfaction of the Commissioner, the Commissioner may make an award determining the total amount payable, and requiring the employer to deposit the deficiency." 5. Having heard learned advocates for the respective parties and having gone through the material on record, and keeping in view the relevant statutory provisions and the factual background, which are noted above, this Court finds as under: 5.1 The petitioner has not disowned its liability, nor has resorted to section 10-A(3) of the Act, indicating the grounds on which he disclaims his liability. On the contrary, he has deposited the amount of compensation as required under the law. He was required to do so within a period of one month of accident i.e. not later than 17.5.2007, while actually it was deposited on 26.2.2014. This factual aspect attracted the consequences under section 4-A(3) of the Act, for interest and penalty both. Such a consequence is provided in section 4-A itself and is independent of section 10 of the Act. This factual aspect attracted the consequences under section 4-A(3) of the Act, for interest and penalty both. Such a consequence is provided in section 4-A itself and is independent of section 10 of the Act. The contention that all the proceedings and procedures need to be emanating from section 10 of the Act is ill-founded and is rejected. 5.2 There is an additional reason to reject the contention of the petitioner. The very language of section10 of the Act itself provides that, 'the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim'. Thus the bone contention of the petitioner also does not take its case further. 5.3 There is still an additional factor against the petitioner. Under section 22-A of the Act, the Commissioner could order even further deposit of the amount of compensation. This is again independent of section 10 of the Act. 5.4 Viewing from any angle, this Court does not find any infirmity in the impugned order, either in law or on facts, either in the procedure or in substance. The decision relied by learned advocate for the petitioner in the case of Shiv Kumar (supra) will not take the case of the petitioner any further in these facts. This petition therefore needs to be dismissed. 5.5 There is an additional factor which would further tilt the balance against the petitioner. The petitioner Employer is the State Authority. The accident was fatal. It was on 17.4.2007. The petitioner was expected to Act in accordance with law and the amount was required to be paid in the year 2007 itself. That amount is paid in the year 2014. No employer, much less the state can be permitted to contend that, there is no explanation either required or offered from him for delayed payment of principal amount for years, but the claim of the interest of the other side, ought to have been within two years and if it is delayed, the jurisdiction of the Commissioner is ousted. This contention is not tenable in view of the overall scheme of the Act and is certainly unentertainable at the hands of this petitioner in the facts of this case. 5.6 Considering the totality, this Court finds that no interference is required in the impugned order, at least at the hands of the petitioner. This contention is not tenable in view of the overall scheme of the Act and is certainly unentertainable at the hands of this petitioner in the facts of this case. 5.6 Considering the totality, this Court finds that no interference is required in the impugned order, at least at the hands of the petitioner. This is required to be noted for the reason that, the refusal to order penalty is not the subject matter of this petition and therefore no opinion is expressed on that part of the impugned order. Dismissal of this petition is therefore not to mean confirmation of that part of the impugned order and it is clarified that in the event any challenge is made by the claimants to that part of the impugned order, it shall be examined on its own merits. For the reasons recorded above, the following order is passed. 5.7 This petition is dismissed. 5.8 The impugned order is confirmed to the extent it orders payment of interest at the rate of 12% per annum, on the principal amount of compensation of Rs. 2,71,120/- for the period from 17.5.2007 i.e. the date of fatal accident to 17.2.2014, the date on which the principal amount was deposited by the petitioner Employer. 5.9 No opinion is expressed on that part of the impugned order, by which the request of the claimants to award penalty against the petitioner is rejected, since that is not under challenge in this petition. Dismissal of this petition is not to mean confirmation of that part of the impugned order. It is clarified that in the event any challenge is made by the claimants to that part of the impugned order, it shall be examined on its own merits. 5.10. Ex-parte ad-interim relief granted by this Court vide order dated 23.9.2015 is vacated. Notice is discharged. No order as to costs.