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2021 DIGILAW 843 (GUJ)

Gopal Raman Nayar v. Vanaben Dineshkumar Bhuriya

2021-09-20

A.S.SUPEHIA

body2021
JUDGMENT : A.S. SUPEHIA, J. 1. With the consent of the learned advocates appearing for the respective parties, the present writ petition is taken up for final hearing. 2. Rule. Learned advocate Mr. Karna Dhomse waives service of notice of rule for the respondent nos. 1 and 2. 3. In the present writ petition, the petitioner inter-alia has prayed for the following relief: “8(A) This Hon’ble Court may be pleased to issue an appropriate writ, order and/or direction to quash and set aside the order passed by the Ld. Commissioner, Vadodara in Misc. Application No. 04/2019 dated 28.11.2019.” 4. The brief facts of the case are as under: 4.1. Initially the claimant had filed WC Application No. 34 of 2013 against the petitioner herein, inter-alia, stating that the victim was working with the petitioner as a Driver on Truck No. GJ-06-W-8145 and he met with an accident on 19.05.2013, due to which he passed away. At the relevant time, as the petitioner had insurance, the petitioner informed the insurance company about the same and was under a bona fide impression that the claim will be settled. Moreover, the petitioner also gave all the necessary monetary and other help to the original claimant. In the workman compensation application, the claimant has joined the present applicant in his individual capacity, which could not have been done in the facts of the case. It is the case of the petitioner that he had received a notice of the WC Application, but he was under a bona fide impression that as the insurance policy is taken, the same would be taken care of. It is in this manner that an ex-parte judgment qua the petitioner came to be passed in favour of the original claimant, whereby the Commissioner held the petitioner and Insurance-Company jointly and severally liable for compensation of Rs. 8,73,880/- along with 12% interest and Rs. 5,000/- towards funeral expenses and Rs. 2,500/- towards cost. The said part is already complied with by the Insurance Company. The Commissioner further directed the present petitioner to deposit 50% penalty by way of the said judgment. 4.2. The Insurance Company has already deposited the compensation along with interest before the Commissioner. However, the claimant preferred WC (Misc.) App No. 40/2016, inter-alia, claiming 50% penalty to the tune of Rs. 4,36,940/- interest of Rs. 1,61,667.80/- funeral expenses at Rs. 5,000/- cost at Rs. 2,500/- and Rs. 4.2. The Insurance Company has already deposited the compensation along with interest before the Commissioner. However, the claimant preferred WC (Misc.) App No. 40/2016, inter-alia, claiming 50% penalty to the tune of Rs. 4,36,940/- interest of Rs. 1,61,667.80/- funeral expenses at Rs. 5,000/- cost at Rs. 2,500/- and Rs. 1000/- towards the cost of Misc. Application. The Commissioner allowed the said application in favour of the claimant and directed that the recovery certificate be issued against the petitioner to the tune of Rs. 4,36,940/- along with 12% interest from the date of filing of Misc. Application along with Rs. 7,500/- towards funeral expenses and cost. 4.3. Thereafter, the claimant filed Review Application No. 02 of 2018 in Misc. Application No. 40 of 2016 inter-alia praying that he is entitled to interest on penalty from the date of filing of the main WC Application and not from the date of filing of the Misc. Application and requested for necessary changes in the order. The Commissioner allowed the said application and directed for issuance of recovery certificate to the tune of Rs. 4,36,940/- along with 12% interest from the date of filing of WC Application No. 34/2013 and Rs. 7,500/- towards funeral expenses and cost. 5. Learned advocate Mr. Yogi Gadhia appearing for the petitioner has submitted that the petitioner came to know about the above orders only when he received letter from Taluka Development Officer (TDO), Vadodara inter-alia directing the petitioner to deposit the amount vide letter dated 23.01.2019. The petitioner thereafter filed the delay condonation application being Misc. Application No. 04/2019 on 05.02.2019. He has submitted that after that, the petitioner approached this Court by way of filing Special Civil Application No. 5865 of 2019 challenging the recovery certificate and letters issued by TDO, Vadodara and the Court vide its order dated 20.03.2019 granted stay subject to depositing the amount of penalty within a period of one week and accordingly, the petitioner had deposited the said amount along with its letter dated 25.03.2019. 5.1 Learned advocate Mr. Yogi Gadhia for the petitioner has submitted that the claimant has already received the principal amount along with interest from the insurance company to the tune of Rs. 11,60,638/-. He has submitted that the petitioner is saddled with the liability of penalty as well as interest on penalty. 5.2 Learned advocate Mr. 5.1 Learned advocate Mr. Yogi Gadhia for the petitioner has submitted that the claimant has already received the principal amount along with interest from the insurance company to the tune of Rs. 11,60,638/-. He has submitted that the petitioner is saddled with the liability of penalty as well as interest on penalty. 5.2 Learned advocate Mr. Yogi Gadhia for the petitioner has submitted that subsequent to passing of the judgment in the main WC application, the claimant preferred Misc. Application No. 40/2016 for issuance of recovery certificate. In the said application, the claimant sought for interest on the amount of penalty as well as funeral expenses and cost. He has submitted that the said application also came to be allowed ex-parte, whereby the Commissioner granted interest on the amount of penalty from the date of filing of the said Application. It is submitted that there is no provision under the law to award interest on amount of penalty. Moreover, it is submitted that in execution proceedings, no relief can be granted, which is not granted in the main judgment/decree, yet the said order came to be passed which is void ab initio. It is submitted that the petitioner drew the attention of the Commissioner to the same in its written submissions however, the Commissioner rejected the delay condonation application. 5.3. Learned advocate for the petitioner has submitted that the provisions under Section 4A of the Employee’s Compensation Act, 1923 do not provide any payment of interest on penalty and hence, the orders dated 17.01.2018 passed in WC Misc. Application No. 40 of 2016 and the order dated 13.04.2018 passed in Review Application No. 2 of 2018 are de hors the provisions of law and hence, the delay condonation application filed by the present petitioner should have been allowed. In support of his submissions, he has placed reliance on the judgment of the Supreme Court in the case of Sarup Sinh vs. Union of India, (2011) 11 SCC 198 . 6. Per contra, learned advocate Mr. Karna Dhomse for the respondents, on instructions, has submitted that the respondent-workman is ready and willing to forgo the interest amount awarded on the penalty. He has submitted that the rest of the award may not be interfered looking to the conduct of the petitioner as he did not appear in any of the subsequent proceedings, though he was aware and the notices were served. He has submitted that the rest of the award may not be interfered looking to the conduct of the petitioner as he did not appear in any of the subsequent proceedings, though he was aware and the notices were served. 7. Since the learned advocates appearing for the respective parties have submitted that the issue can be resolved over here by passing appropriate orders as the respondent-workman is ready and willing to forgo the penalties. 8. I have heard the learned advocates appearing for the respective parties. 9. So far as the contention raised by the present petitioner with regard to the original award against the present petitioner, this Court is of the opinion that the same does not require any interference and the same has been precisely passed by the Labour Court. The petitioner has not cared to appear before the Labour Court despite the service of notice. With regard to the impugned order rejecting the application for condonation of delay is concerned, this Court is of the considered opinion that the orders wherein the interest on penalty is awarded after awarding 50% compensation in view of the provisions of Section 4A of the Workmen Compensation Act, 1923 (for short “the WC Act”) since the same is erroneous as no such provision is prescribed under the statute, which stipulates awarding of interest on the penalty amount. The said order is required to be set aside. The provisions of Section 4A of the WC Act reads as under: “4A 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 may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent. (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 may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent. 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 fifty per cent. of such amount, shall be recovered from the employer by way of penalty.” 9.1 A perusal of the provisions of Section 4A of the WC Act reveals that the employer is fastened with the liability of payment of compensation and in the event , the same is not paid, a penalty of 50% prescribed under Section 4A(3) of the WC Act. There is no stipulation for granting of interest on the penalty amount in the Rule 4A. 10. Thus, if the impugned order and award is sustained, the same would set a bad precedent as the Court has awarded interest on penalty which is not prescribed under the provisions of law. Thus, the order, by which the interest on penalty, is passed is de hors the Rules. As the respondent workman has already agreed for waiver of interest on penalty, the impugned order with regard to payment of 50% of penalty is not interfered. By the order dated 28.03.2019 passed in the Special Civil Application No. 5865 of 2019, the petitioner has already deposited an amount of Rs. 4,36,940/- before the Registry of this Court. 11. Registry is directed to handover the demand draft to the learned advocate Mr. Karna Dhomse prepared in the name of legal heir of the original workman Vanaben Dineshkumar Bhuriya with accrued interest if any. 12. With the aforesaid observations, the present writ petition is disposed of. The impugned order rejecting the application for condonation of delay is set aside. However, in order to lay-quiches to the entire litigation, the aforementioned order is passed with the consent of the learned advocates appearing for the respective parties. 13. In view of the order passed in the main matter, the Misc. Civil Application does not survive and the same is disposed of accordingly. 14. However, in order to lay-quiches to the entire litigation, the aforementioned order is passed with the consent of the learned advocates appearing for the respective parties. 13. In view of the order passed in the main matter, the Misc. Civil Application does not survive and the same is disposed of accordingly. 14. Since the amount, which is already deposited pursuant to the recovery certificate and the same is ordered to be paid to respondent-workman as per the directions of this Court, the implementation of the recovery certificate will not survive.