The liability of the employer to pay penalty amount up to 50% of the compensation under Section 4-A(3)(b) of the Employees' Compensation Act.

JUDGMENT

Manoj Kumar Ohri, J. (Oral)

1. By way of present appeal filed under Section 30 of the Employees' Compensation Act, 1923 (hereinafter, the `EC Act'), the appellant (respondent below) has assailed order dated 13.03.2019 passed by the learned Commissioner, Employees' Compensation in Case No.WCD/14/ND/2013/1034, whereby penalty to the extent of 35% of the compensation amount has been imposed on him in terms of Section 4- A(3)(b) of the EC Act.

2. The appeal is accompanied by an application under Section 5 of the Limitation Act read with Section 151 CPC seeking condonation of delay of 328 days, wherein it is averred that the appellant became aware of the passing of the impugned order on 15.12.2020. It is stated that he was not supplied a copy of the impugned order by the learned Commissioner and came to know of its passing only when he was served with a notice by the learned Executive Magistrate directing him to appear on 11.01.2021.

3. Considering the mandate of Section 5 of the Limitation Act, I am of the opinion that the appellant has failed to make out any `sufficient cause' to explain the delay occasioned in the present case. Be that as it may, as learned counsels appearing for the parties have addressed submissions on merits, I have heard the rival contentions and perused the material on record in entirety. In my considered view, no ground for interference with the impugned order is made out for the reasons discussed hereinafter.

4. Learned counsel for the appellant has submitted that the claim petition was initially disposed of vide order dated 04.07.2016 and while noting the prayer of the respondents/claimants, no penalty amount was awarded.

5. Learned counsel for respondent Nos. 1 to 4, on the other hand, has supported the impugned order and refuted the contentions raised on behalf of the appellant.

6. It is evident from the records that considering the statements made in the claim petition, the same was allowed by the learned Commissioner vide order dated 04.07.2016 and compensation awarded alongwith interest. Thereafter, as per mandate of Section 4-A(3)(b) of the EC Act, a show cause notice was issued to the employer/appellant to show as to why penalty not be imposed on him. Multiple opportunities were given in this regard, but the appellant failed to put up any defense.

7. Admittedly, the appellant has not challenged order dated 04.07.2016 passed by the learned Commissioner. Rather, during the course of submissions, it has been submitted that the entire compensation amount alongwith interest has been paid.

8. At this stage, reference may profitably be made to the decision of the Supreme Court in Ved Prakash Garg v. Premi Devi & Others reported as (1997) 8 SCC 1 where it has been observed as follows:

"14. On a conjoint operation of the relevant schemes of the aforesaid twin Acts, in our view, there is no escape from the conclusion that the insurance companies will be liable to make good not only the principal amounts of compensation payable by insured employers but also interest thereon, if ordered by the Commissioner to be paid by the insured employers. ...But similar consequence will not follow in case where additional amount is added to the principal amount of compensation by way of penalty to be levied on the employer under circumstances contemplated by Section 4-A(3)(b) of the Compensation Act after issuing show-cause notice to the employer concerned who will have 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.

However, if ultimately, the Commissioner after giving reasonable opportunity to the employer to show cause takes the view that there is no justification for such delay on the part of the insured employer and because of his unjustified delay and due to his own personal fault he is held responsible for the delay, then the penalty would get imposed on him. That would add a fu