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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ,

NAGPUR BENCH, NAGPUR

FIRST APPEAL NO.352 OF 2007

1. Gowardhan Madanlal Agrawal,

R/o Khaparde Plot, Main Road,

Paratwada, (District – Amravati)

(Principal Employer)

Deleted as per the Court’s

order 21.12.2017.

2. Shantabai Gowardhandas Agrawal,

R/o Khaparde Plot, Main Road,

Paratwada, (District – Amravati),

(Principal employer). ..... Appellants.

:: V E R S U S ::

1. Ramkumar alias Munnilal Prajapati,

(father of deceased) aged about 60

years, occupation – Nil.

2. Smt.Kailsuwa w/o Ramkumar

alias Munnilal Prajapati,

Aged about 55 years,

occupation – nil,

(mother of deceased).

3. Master Agnu s/o Ramkumar

alias Munnilal Prajapati

Aged about 12 years,

(minor brother of deceased through

his Natural Guardian)

all r/o at Charaiya

Post – Dhawasad,

Taluka Hanumana, district – Riva (M.P.).

4. Sudhir Panpaliya,

Senior Engineer,

Sadique and Company,

Behind Civil Court,

Ashiyana Apartment, Camp,

Amravati.

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5. Shri Dasmatdas Chhagruprasad

Raidas, Contractor,

R/o Sadique & Company,

Amravati University, Amravati.

Appeal is dismissed against

respondent Nos.4 and 5 vide

order dated 5.5.2009. ….. Respondents.

======================================

Shri N.B.Kalwaghe, Counsel for Appellants.

None for Respondents.

======================================

CORAM : URMILA JOSHI-PHALKE , J .

CLOSED ON : 02/02/2023

PRONOUNCED ON : 09/03/2023

JUDGMENT

1. This appeal is filed by original respondent Nos.1

and 4, who are owners of shop complex and residential flats,

situated at Jaisthambha Chowk, Paratwada, challenging

judgment and award dated 3.10.2006 passed by learned

Commissioner for Workmen’s Compensation at Amravati in

Application (WCA) No.11/2002 whereby learned Commissioner

directed appellants/owners to pay compensation

Rs.3,02,400/- jointly and severally also to pay amount

Rs.1,51,200/- towards 50% penalty on the amount of the

compensation and interest @ 12% per annum from

28.10.2001, till the compensation amount is realized.

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2. Brief facts necessary for decision of the appeal are

as under:

Respondent Nos.1 to 3 are dependents of

deceased Jagannath Munnilal Prajapati. Appellant No.1 is

husband of appellant No.2. Appellant No.2 had decided to

build up a big shopping_cum_residential complex at the plot

owned by appellant No.2 which was situated at Jaisthambha

Chowk, Paratwada. Appellant No.1, being husband of

appellant No.2, was having natural predominance over the

construction work which was to be carried out in constructing

of shopping_cum_residential complex. The appellants

engaged respondent No.4 as Engineer to keep supervision

over the construction work so also engaged respondent No.5

to be Contractor for executing construction work. The

appellants also engaged labourers including deceased

Jagannath Munnilal Prajapati for executing the construction

work in the control and supervision of respondent Nos.4 and

5. Deceased was working in the control and supervision of

respondent Nos.4 and 5 as labour on daily wages @ Rs.90/-

per day and monthly he was drawing salary Rs.2700/- per

month.

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3. On 28.3.2001, the deceased was working on third

floor of the undergoing construction of the shopping complex.

He fell down from the third floor of the shopping complex and

died. When the deceased fell down from the third floor of the

shopping complex, labourers namely Hiralal Saket, Rambahar

Prajapati, Pannalal Saket, and others were doing the work

along with the deceased. On receipt of information, appellant

No.2 rushed to the accident place and shifted Jagannath for

treatment at Cottage Hospital, Achalpur and, thereafter, to

General Hospital at Amravati. After examination, Medical

Officer declared him dead.

4. Respondent Nos.1 and 2 are parents of the

deceased and respondent No.3 is minor brother of the

deceased. At the time of the death, the deceased was aged

about 20 years and he was having sound health. The accident

of the deceased took place during course of employment and

in the course of employment. After the accident, respondent

Nos.1 to 3 approached to appellants for compensation.

However, their demand and request for payment of

compensation was not considered. In fact, appellants have

not responded to the demand of compensation by claimants

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and, therefore, claimants were constrained to send Demand

Notice dated 22.5.2002 to appellants as well as the Engineer

and the Contractor. The Engineer refused to receive the

notice. The said notice was not replied by any of them and,

therefore, claimants were constrained to file an application

under Section 4 of the Employees’ Compensation Act, 1923

(for short, “the said Act”) for grant of compensation. The

claimants also claimed 50% penalty and interest @ 18% on

the amount of compensation from the date of compensation

fell due.

5. In response to the notice, appellants as well as

respondent No.4 and respondent No.5 resisted the claim by

filing written statement. Respondent No.4 filed his written

statement vide Exhibit-12 and denied relationship between

the deceased and him. It is contention of respondent No.4

that there was no contract between them and, therefore, he is

not liable to pay compensation. Appellant No.1 also resisted

the claim of claimants by filing written statement vide Exhibit-

23 and denied contentions of claimants. As per contention of

appellant No.1, the deceased was working with the Contractor

i.e. respondent No.5 and there was no contract between him

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and the deceased and, therefore, he is not liable to pay the

compensation. Respondent No.5 has also resisted the claim

by claimants and denied liability to pay compensation.

Appellant No.2 also denied the liability to pay the

compensation on the ground that the deceased was working

with respondent Nos.4 and 5, the Engineer and the Contractor

and, therefore, she is not liable to pay the compensation. As

per contention of appellant No.2, respondent Nos.4 and 5

have engaged the deceased as a labour and, therefore, they

are liable to pay compensation to claimants.

6. Learned Commissioner below framed necessary

issues and after recording evidence, allowed the claim of

claimants by holding that appellants are jointly and severally

liable to pay compensation to claimants and the claim against

respondent Nos.4 and 5 was rejected.

7. Being aggrieved and dissatisfied with the judgment

and award impugned in the appeal, the present appeal is

preferred by appellants on the ground that the judgment and

award impugned is perverse and in violation of liability

applicable. It is further contention of appellants that learned

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Commissioner below is not justified in taking recourse to

provisions of Section 4-A of the said Act by imposing penalty

without giving reasonable opportunity to appellants to show

cause as to why such order of penalty should not be passed as

contemplated under the said Section. The appellants have

also challenged findings of learned Commissioner below that

appellants are jointly and severally liable for payment of the

compensation absolving respondent Nos.4 and 5 in spite of

fact that respondent No.4 was Senior Engineer and

respondent No.5 was Contractor. It is further submitted by

appellants that there was no previty of contract between

appellants and the deceased. The deceased was engaged by

respondent Nos.4 and 5. However, learned Commissioner

below erroneously held appellants liable to pay compensation

and, therefore, the judgment and award impugned deserves

to be quashed and set aside.

8. Heard learned counsel Shri N.B.Kalwaghe for

appellants. None appeared for respondents. After sufficient

opportunity, none appeared for respondents. On 24.1.2023, a

last opportunity was afforded to respondent Nos.1 to 3.

However, none appeared for them and hence the matter was

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proceeded. It is submitted by learned counsel for appellants

that there was no previty of contract between appellants and

the deceased. There is no evidence on record to show that

the deceased was working as he was engaged by appellants to

carry out the construction work. In fact, the construction

work was given to Sadique and Company. Respondent No.4

was engaged by Sadique and Company to supervise the said

construction work and respondent No.5 was Contractor.

However, learned Commissioner below has not considered the

same and erroneously saddled the liability to pay the

compensation on appellants. There is no evidence on record

to show that the deceased was engaged by appellants to carry

out the work of construction. On the other hand, evidence on

record shows that respondent No.4 was appointed by Sadique

and Company to supervise the construction work of appellants

and respondent No.5 had engaged the deceased and,

therefore, respondent Nos.4 and 5 are liable to pay the

compensation and not appellants. Learned counsel for

appellants further submitted that the penalty is imposed by

learned Commissioner below without giving appellants an

opportunity to show cause before passing any order of penalty

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and the interest. So far as challenge to imposition of penalty

is concerned, it is the contention raised by learned counsel for

appellants that no order imposing penalty could have been

passed under clause (b) of sub-section (3) of Section 4-A of

the said Act, without issuing a show cause notice and giving

appellants reasonable opportunity of being heard in the

matter. According to the learned counsel, appellants were

entitled to have an opportunity to furnish an explanation to

satisfy the Commissioner about the delay caused in making

the payment and it is only upon the Commissioner finding the

explanation to be unsatisfactory, the order imposing penalty

could have been passed. In support of his contention, learned

counsel for appellants relied upon the decision of this Court in

the case of Udhav Rangnathrao Pawar v. Sheshrao Ramji

Jogdand and anr reported in 2009 SCC OnLine Bom 1348

wherein this Court has taken a view that binding precedent is

that before imposing penalty reasonable opportunity to the

employer to defend the question of imposition of penalty is to

be granted. Learned counsel for appellants submitted that in

the present case also no opportunity was granted to

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appellants by issuing show cause and, therefore, the order

passed by learned Commissioner below liable to be set aside.

9. As observed earlier, none appeared for

respondents after giving an opportunity to put up their case.

10. In order to deal with submissions made by learned

counsel for appellants, substantial questions of law arise for

determination are, as follows:

(1) whether the order granting compensation by

learned Commissioner below is justified?

(2) whether the order imposing penalty without

issuing show cause notice is bad in law and,

therefore, the same is liable to be set aside?

11. In order to deal with submissions made by learned

counsel for appellants, it is necessary to reproduce provisions

of Section 4-A of the said Act, which read 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

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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 percent 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

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the time being included in the Second

Schedule to the Reserve Bank of India Act,

1934 (2 of 1934).

(3A) The interest and penalty payable under

sub-section (3) shall be paid to the (employee)

or his dependent, as the case may be.]”

12. The first question, in this context, which arises is

regarding the day/date on which, the compensation under

sub-section (1) of Section 4-A of the said Act “falls due”. The

second question, which arises is the day/date on which the

interest under clause (a) of sub-section (3) of section 4-A of

the said Act would start running on the amount which fell due.

13. Section 3 of the said Act deals with the employers

liability for compensation. Sub-section (1) of Section 3 of the

said Act states that if personal injury is caused to a workman

by an accident arising out of and in the course of his

employment, his employer shall be liable to pay the

compensation in accordance with this chapter. What is the

amount of compensation, which is required to be paid by the

employer to the workman under sub-section (1) of section 3,

is specified under Section 4. Section 4-A of the said Act deals

with the compensation to be paid when due and the penalty

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for default. Sub-section (1) of section 4-A states that the

compensation shall be paid as soon as it “falls due”. S ub-

section (3) of section 4-A states that where any employer is in

default in paying the compensation under this Act, within one

month from the date it “fell due”, the Commissioner can direct

in terms of clause (a) that the employer shall, in addition to

the amount of arrears, pay simple interest thereon, at the rate

of 12 per cent per annum. Clause (b) further empowers the

Commissioner to direct the employer to pay, in addition, a

further sum not exceeding 50 per cent of such an amount by

way of penalty, if, in his opinion, there is no justification for

delay in payment of arrears and interest. However, the only

rider on imposition of penalty under clause (b) is that the

employer has to be given a reasonable opportunity to show

cause why the order imposing the penalty should not be

passed.

14. Section 4-A of the said Act being a mandatory in

character, it has to be followed strictly. The said Act is

beneficial provision. When construing the beneficial

provisions, such Statute has to be construed giving the widest

scope to ameliorative and beneficial provision intended by the

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Legislature. Section 4-A as stated above is mandatory and

whenever the compensation was due i.e. as soon as the notice

of accident is given under Section 10, within one month from

the date, but it is due from date of accident, the

compensation has to be paid when it falls due as provided

under Section 4-A of the Act.

15. Thus, in the present case, Demand Notice was

issued on 22.5.2002. The appellants have challenged not only

the penalty and interest but also challenged compensation

amount. In order to find out whether learned Commissioner

below who recorded finding that there exists relationship of

employer and employee between appellants and the deceased

and whether finding recorded by learned Commissioner below

that appellants are liable to pay compensation are supported

by evidence on record. If the said finding is supported by

evidence on record, appellants are liable to pay compensation.

16. To support the contention on behalf of claimants,

Hiralal (PW1) entered into witness box. He is labour and was

working with the deceased. He stated that at the time of the

incident age of the deceased was 20 years. The work of

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construction of complex of Gowardhandas Agrawal was in

progress. The complex was of 400 to 500 shops. The

deceased was getting Rs.90/- per day. Gowardhandas

Agrawal had given him wages. No contractor was appointed.

Only one leader was there and through the said leader wages

were paid to the deceased. The said accident occurred on

28.9.2001. At that time, the deceased was working on third

floor and due to slip of leg the deceased fell down from third

floor and died on the spot. Admittedly, he is not eyewitness.

However, his evidence is to the extent that appellants have

engaged the deceased for carrying out the work. He is cross-

examined at length and during cross-examination it came on

record that respondent No.5 is Contractor. He admitted that

Dasmatdas i.e. respondent No.5 was giving him work and also

giving him wages. He admitted that the deceased was

working with him, but he denied that respondent No.5 was

paying wages to the deceased.

17. Ramkumar (PW2) is the father of the deceased

who testified that the deceased was his son and working with

appellant No.1. He stated about the occurrence of the

accident. Admittedly, he is not an eyewitness. During cross-

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examination, he stated that respondent No.4 used to

supervise the building work of Agrawal Complex. He further

admitted that he is not aware whether the deceased was

working with respondent No.4. He further admitted that he is

not aware who paid wages to his son.

18. Ramesh Taide is PW3. As per his evidence, he was

working in Town Planning Section of Nagar Parishad. As per

the record, documents shown to him are certified issued by

his department. It is the proposed plan of Madan Mahal and

the plan was sanctioned by Municipal Corporation. As per his

evidence, the said plot wherein plan was sanctioned is in the

name of Shantabai Gowardhandas Agrawal, appellant No.2.

During cross-examination, he admitted that Gowardhan

Madanlal Agrawal is not owner of the said building. He also

admitted that with the said building Gowardhan Agrawal has

no concern. He stated that he has no idea who is carrying out

the construction work.

19. Perusal of evidence above reveals that the

deceased was engaged by appellants.

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20. To rebut the evidence, respondent No.4 himself

stepped into the witness box and deposed that he has no

concern with the deceased. He was working as Civil Engineer

with Sadique Company. During his cross-examination, he

admitted that the contractor is acquainted to him. He

admitted that Sadique and Company deals with construction

work with the help of respondent No.5 who is contractor along

with other contractors. He, however, denied that he had sent

respondent No.5 at Paratwada to execute the work of Madan

Mahel. Respondent No.5 also stepped into witness box and

deposed that he was called upon by appellant No.1 to do

centrine work. He was sent through Panpaliya from Amravati

to Daitwada for doing centrine work. He was engaged by

appellant No.1 along with Hiralal and it was appellant No.1

who used to pay wages to him for the work done. Appellants

are owners of Madan Mahal. The work was given to supervise

by appellant No.1 and appellant No.1 used to supply him

centrine material. He is cross-examined at length and he

stated that during cross-examination that he never met with

respondent No.4 regarding the work of Madan Mahal. It

further came in his cross-examination that for carrying out

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Madan Mahal work he was engaged by appellant No.1. All

workers including the deceased were engaged by appellant

No.1. On the day of the accident, the deceased was working

at Madan Mahal on third floor. Thus, cross-examination of this

witness shows that appellants had engaged the deceased to

carry out the said work.

21. Thus, the evidence brought on record by claimants

shows that respondent Nos.4 and 5 were engaged by

appellants to carry out the construction work. Nothing is on

record to show that the deceased was engaged by the

Contractor. On the contrary evidence of PW1 and PW2

specifically shows that appellants have engaged the

Contractor as well as labourers to carry out the construction

work. On the basis of the said evidence it is crystal clear that

relationship between the deceased and appellants exists as

master and servant. As the accident took place during the

course of employment and in the course of employment and,

therefore, appellants are jointly and severally liable to pay

compensation. The evidence of PW3 also shows that the

construction work was carried out on the plot owned by

appellants. Thus, findings recorded by learned Commissioner

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below to that effect is that it was appellant No.1 who used to

pay the deceased Rs.90/- per day and Rs.2700/- per month

and the deceased was 20 years old. Appellants tried to

dislodge the claim of claimants. However, appellants have not

stepped into witness box to rebut the evidence of claimants

and other witnesses. PW1 is also other labour who was

working along with the deceased. His evidence shows that he

as well as the deceased was engaged by appellants. The

documents placed on record as regards the accident, wages,

and age of the deceased confirm that the deceased was

working along with present appellants. The spot panchanama

and merge report show that the alleged incident took place

while the deceased was working at Madan Mahal. Though

statutory notice was served upon appellants as well as

respondent Nos.4 and 5, the said notice was not replied by

them.

22. The fact that the deceased met with an accident

during the course of employment, when he was working on

third floor while working at Madan Mahal, PW1 categorically

stated that the deceased was working on the said day at

Madan Mahal and appellant No.1 used to pay wages to the

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deceased. PW1 was one of workers who was leader of all

workers. RW3 who alleged to be the contractor also stepped

into witness box and stated that he is not contractor, but he

holding position alike to Mukadam. RW1 also admitted that

RW2 is not having any licence of contractorship. The evidence

of RW1 and RW2 shows that the deceased was engaged by

appellant No.1.

23. Thus, the entire evidence on record sufficiently

shows that appellants used to pay wages to the deceased as

well as other workers.

24. Coming to the next question as to whether finding

of learned Commissioner below holding appellants to pay

compensation is proper. The evidence on record shows that

appellants decided to construct a big

shopping_cum_residential complex at the plot owned by

appellant No.2 which was situated at Jaisthambha Chowk,

Paratwada. The construction undertaken by them is not their

trade or business. The appellants have not produced any

evidence to show that they handed over the construction work

to Sadique and Company and Sadiue and Company carried out

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the construction through Contractor i.e. respondent No.5.

Thus, the evidence on record sufficiently shows that

appellants engaged the deceased to carry out the construction

work along with respondent No.5. Thus, the finding recorded

by learned Commissioner below is proper finding of fact based

on an appreciation of evidence. The said finding cannot be

called as perverse as such, no interference is called for in the

said finding. Thus, no ground is made out to interfere with

the said finding and, therefore, no interference is called for.

25. The next contention of learned counsel for

appellants that the penalty should not have been imposed

without issuing show cause notice. He made a reference of

Section 4-A of the said Act. By careful reading of the said

Section, it is clear that the provision is made in order to

ensure that the workman to whatever the employer is

prepared to pay immediately, pending the decision. The

provision envisaged is a mandatory in character and it has to

be followed strictly. The said Act is a beneficial provision.

When construing the beneficial provisions, such statute has to

be construed giving the widest scope to ameliorative and

beneficial provision intended by the Legislature. The Court

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always has to take it pedantic approach to the provisions to

achieve the object of the said Act. Section 4-A of the said Act

as stated above is mandatory and whenever the compensation

was due i.e. as soon as the notice of accident is given under

the Section, within one month from the date, but it is due

from the date of accident, the compensation has to be paid

when it falls due as provided under the said Section.

26. The Honourable Apex Court in the case of Ved

Prakash Garg vs. Premi Devi and ors , reported in (1997) 8

SCC 1 has held that sub-section (2) of Section 4-A

contemplates a situation wherein the employer though

accepting his liability to pay compensation to his injured

workman disputes the extent of the claim of compensation

and in such a case sub-section (2) enjoins him to make

provisional payment based on the extent of accepted liability

by depositing it with the Commissioner or to pay it directly to

the workman. It has observed that it is obvious that such an

obligation of the employer would not arise under Section 4-A

sub-section (2) if he totally disputes his liability to pay on

grounds like the injured person being not his employee or that

the accident was caused to him at a time when he was not in

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the course of employment or that the accident caused to him

did not arise out of his employment. If such disputes are

raised by the employer then his obligation to make provisional

payment under sub-section (2) of Section 4-A would not arise

and his liability would depend upon the final adjudication by

the Workmen's Commissioner at the end of the trial. It is

further held that one month's period as contemplated under

Section 4-A(3) may start running for the purpose of attracting

interest under sub-clause (a) thereof in case where provisional

payment becomes due. But when the employer does not

accept his liability as a whole under circumstances

enumerated by us earlier then Section 4-A(2) would not get

attracted and one month's period would start running from the

date on which due compensation payable by the employer is

adjudicated upon by the Commissioner and in either case the

Commissioner would be justified in directing payment of

interest in such contingencies not only from the date of the

award but also from the date of the accident concerned. Such

an order passed by the Commissioner would remain perfectly

justified on the scheme of Section 4-A(3)(a) of the said Act.

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27. In another judgment, the Honourable Apex Court

in the case of National Insurance Company Limited vs.

Mubasir Ahmed , reported in [(2007)2 SCC 349 while

considering question of payment under the said Act has held

that the compensation becomes due only on the basis of the

adjudication of the claim and unless such adjudication is one,

it was held that the question of compensation becoming due

does not arise. It is further held that legislature has not used

the expression "from the date of accident" but has used the

expression “falls due”, and in the light of this, it was held that

obviously the interest cannot be charged from the date of

accident but it has to be charged from the date of adjudication

by the Commissioner.

28. From the decisions of the Honourable Apex Court

cited supra, this Court in the case of Udhav Rangnathrao

Pawar v. Sheshrao Ramji Jogdand and anr cited supra has laid

down following principles:

(a) Employer's liability to pay compensation

arises under Section 3(1) of the said Act as

soon as the personal injury is caused to a

workman by an accident which arises out of

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and in the course of employment (Pratap

Narain's case).

b) Where the question arises in any

proceedings under the Act as to the liability of

any person to pay the compensation or as to

the amount or the duration of the

compensation, it has to be settled by the

Commissioner, in default of the agreement.

However, there is nothing to justify the

arguments that the employer's liability to pay

the compensation under Section 3(1) of the

said Act in respect of the injury gets

suspended or deferred until after the

settlement by the Commissioner under

Section 19 of the said Act (Pratap Narain's

case).

(c) In case, where the employer accepts his

liability to pay the compensation, but disputes

the extent of the claim, sub-section (2) of

Section 4-A requires him to make provisional

payment based on the extent of accepted

liability by depositing it with the

Commissioner or paying directly to the

workman injured (Ved Prakesh's case).

(d) Where the employer totally denies his

liability to pay the compensation and does not

accept it, then his liability to make provisional

payment under sub- section (2) of Section 4-

A of the said Act would not arise and his

liability to pay the compensation would

depend upon the final adjudication by the

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Commissioner under Section 19 of the said

Act (Ved Prakesh's case).

(e) Once the compensation due under the Act

becomes ascertained, either provisionally

under sub- section (2) of Section 4-A or

finally on the adjudication by the

Commissioner under Section 19, the same

would "fall due" immediately after expiry of

one month from the date of adjudication

under Section 19 of the said Act (Ved

Prakash's case).

(f) In Mubasir's case, it was held that since no

indication is there as to when the

compensation becomes due, it has to be

taken to be the date of adjudication of the

claim, as it becomes due on the basis of such

adjudication of claim and unless the

adjudication is done the question of

compensation becoming due does not arise. It

has been held that significantly the legislature

has not used the expression, "from the date

of accident", but has used the expression,

"falls due" under sub-section (1) of Section

4-A.

(g) So far as the payment of interest under

clause (a) of sub-section (3) of Section 4-A of

the said Act is concerned, it has been held in

Ved Prakash's case that in either case, where

the employer does not accept his liability as a

whole or where he disputes the extent of the

claim, the Commissioner would be justified in

directing payment of interest from the date of

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accident concerned and such order would

perfectly be justified on the scheme of Section

4-A(3)(a) of the said Act.

(h) In Ved Prakash's case it has been held

that once the compensation "falls due" and

within one month, it is not paid by the

employer, then as per Section 4-A(3)(a),

interest at the permissible rate gets added to

the said principal amount of the compensation

as the claimants would stand deprived of their

legally due compensation for a period beyond

one month which is statutorily granted to the

employer concerned to make good his liability

for the benefit of the claimants whose bread

winner might have either been seriously

injured or lost his life. The interest is almost

automatic, once the default is committed and

there is no element of penalty involved in it.

The principal amount as well as the interest

made payable thereon would remain part and

parcel of the legal liability of the injured to be

discharged under the Compensation Act and

not divorce it.

(i) So far as the payment of interest under

Section 4-A(3) is concerned, it was held in

Mubasir's case that the High Court was wrong

in granting interest at the rate of 12% per

annum from the date of accident. It was held

that the interest at the rate of 12% per

annum was payable from the date of

completion of one month from the date of

adjudication of the claim for compensation by

the Commissioner, as according to it, the

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compensation "falls due" under Section 4-A(1)

on the date of adjudication (Mubasir's case).

(j) In Mohd. Nasir's case, it was held that the

interest under Section 4-A(3) of the said Act

would be from the date of default and not

from the date of award of compensation. It

was held that the provision of interest, as it

appears from a plain reading is penal in

nature. It was also held that the interest will

also be payable at the rate of 7.5% per

annum from the date of filing of the

application till the date of award and

thereafter, it shall be as per the rate of

interest determined by the Commissioner as

per his order under Section 19 of the said Act.

29. This, in view of provisions of under sub-clause (b)

of sub-section (3) of Section 4-A of the said Act, show cause

notice is required to be issued to the employer calling upon to

furnish explanation for the delay caused in making the

payment of arrears. The penalty is required to be levied

under the said provision after issuing show cause notice to the

employer concerned who will have a reasonable opportunity to

show cause why, on account of some justification on his part

for the delay in payment of the compensation amount, he is

not liable for this penalty. It has further been held that if

ultimately, the Commissioner after giving reasonable

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opportunity to the employer to show cause, takes a view that

there is no justification for such a delay on the part of the

insured employer and because of his unjustified delay and due

to his personal fault he is held responsible for the delay, then

the penalty would be imposed on him.

30. The show cause notice contemplated by clause (b)

of sub-section (3) of Section 4-A of the said Act is with

reference to the arrears of the amount of compensation

determined to be payable by the employer along with the

interest payable thereon. This finding would arise only upon

determination of the compensation by the Commissioner

under Section 19 of the said Act. Hence, the show cause

notice contemplated is after passing of the order by the

Commissioner determining the compensation. In view of this,

order imposing penalty of Rs.1,51,200/- determined by the

Commissioner, needs to be quashed and set aside as no show

cause notice was issued to appellants before imposing the

said penalty and, therefore, a direction is required to be given

to learned Commissioner below to issue a show cause notice

providing appellants a reasonable opportunity of being heard

in the matter and to furnish the explanation for the delay

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caused in making the payment of arrears of compensation and

interest, and thereafter to pass an appropriate order.

31. In the decision of the Honourable Apex Court in

the case of Ved Prakash Garg vs. Premi Devi and ors cited

supra, aspect of imposition of penalty upon issuance of show

cause notice is not taken into consideration by learned

Commissioner below before imposing penalty.

32. In view of decisions cited supra and in view of

discussion above, the appeal deserves to be partly allowed.

In the result, I pass following order:

ORDER

(1) The judgment and award dated 3.10.2006 passed by

learned Commissioner for Workmen’s Compensation at

Amravati in Application (WCA) No.11/2002 to the extent of

imposing penalty Rs.1,51,200/- upon appellants is quashed

and set aside.

(2) The appellant is directed to appear before learned

Commissioner below and to show cause in respect of the

penalty of Rs.1,51,200/- proposed to be levied by learned

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Commissioner below. Upon receipt of explanation, learned

Commissioner below shall hear the appellant and pass

appropriate orders in accordance with law.

(3) Rest of the order passed by learned Commissioner below

is maintained.

(4) There shall be no order as to costs.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

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