Orissa High Court
Ramakant Rout Alias Routray vs Prafulla Kumar Das And Anr. on 24 July, 1992
Equivalent citations: I(1993)ACC551, 1993ACJ496, (1993)ILLJ609ORI, 1992(II)OLR536
JUDGMENT S.C. Mohapatra, J.
1. Stamp Reporter has pointed out that absence of certificate required under Section 30(1) third proviso, of the Workmen's Compensation Act (for short, 'the Act') is a defect to be removed by the appellant.
2. Impugned order is a composite order determining the compensation as well as the penalty under Section 4-A of the Act and direction to pay the same. Mr. L. Dash, learned counsel for appellant, submitted that imposition of the penalty is being assailed in this case on various grounds, one of which is that no opportunity was given to the owner to have his say in the matter of penalty since the rate of penalty is not fixed and a discretion is left with the Commissioner to either absolve the owner from paying any penalty or direct to pay such amount lesser than the maximum rate fixed in Section 4-A of the Act. Accordingly, Mr. Dash submitted that prima facie there is a strong ground in the appeal which in the minimum is to be remitted back for re-consideration to give opportunity to the appellant for making submissions and furnishing materials why the penalty should not be imposed on the facts and in the circumstances of this case.
3. Mr. Dash further submitted that the substantial questions of law involved in this case are:
(i) Whether opportunity is to be given to the employer before imposition of penalty under Section 4-A of the Act? and
(ii) Whether the order imposing penalty without affording such opportunity violates the principle of natural justice?
He has relied upon the decision reported in A.I.R. 1970 S.C. 253 (Hindusthan Steel Limited v. State of Orissa) and one unreported decision of this Court in Miscellaneous Appeal No. 88 of 1989 (S.D. Sharma v. Ramesh Mahakud and Ors.) disposed of on April 16, 1991 in support of his contention. In this view of the matter, it is stated that furnishing of certificate should be exempted.
4. I am not inclined to accept such contention. Where the statute required a certificate to be furnished and leaves no discretion with the appellate Court to grant exemption, merely because there would be a prima facie case in favour of the appellant, filing of such certificate cannot be exempted. On furnishing of a certificate, the appeal becomes entertainable whereafter merits of the appeal can be considered.
5. Mr. Dash, however, submitted that where a right of appeal is circumscribed by condition, such provision is to be strictly interpreted and unless the statute requires any further condition, by interpretation it cannot be said that the further condition is also the intention of the legislature. On basis of this principle, it is submitted that a certificate is required to be furnished where an appeal is one under Section 30(1)(a) of the Act. It does not envisage that in an appeal against an award imposing penalty under Section 4-A of the Act, as provided under Section 30(1)(aa) of the Act, a certificate would be required to be furnished. There is force in the contention of Mr. Dash.
6. Section 30(1)(aa) of the Act reads as follows:
"30. Appeals- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely-
xxxxx xxxxxxxxxx xxxxxxx (aa) an order awarding interest or penalty under Section 4-A".
The third Proviso to Section 30(1) of the Act under which the certificate is required to be furnished, reads as follows:
"Provided further, that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by certificate by the Commissioner to the effect that the appellant had deposited with him the amount payable under the order appealed against."
Parliament required the certificate to be furnished where the appeal is one against an award as envisaged under Section 30(1)(a) of the Act. Therefore, an award imposing penalty under Section 4-A, as provided in Section 30(1)(aa), requires no certificate to be furnished.
7. A situation may arise, as in this case, where the award is composite being one under Section 30(1)(a) and Section 30(1)(aa) of the Act. In such a case, if the appellant confines I himself to the imposition of penalty only, no certificate would be necessary. If, however, the entire award on both the grounds would be assailed, a certificate relating to the amount which is the compensation under Section 30(1)(a) of the Act would be required and no certificate for the amount of penalty would be necessary. Where the Commissioner, who passed the award, does not accept partial payment to grant certificate or refuses to grant a certificate, this Court can be moved in the pending appeal in respect of the same and appropriate direction can be issued to the Commissioner in the event the assertions are accepted.
In this case, Mr. Dash confines the appeal to the imposition of penalty only. Accordingly, no certificate is required to be furnished in order to comply with the requirement of the third Proviso to Section 30(1) of the Act.
8. In result, the miscellaneous case is allowed.