Employer's obligation to immediately calculate and pay compensation, and the delay in payment cannot bar the employee's just claim.

JUDGMENT :

Chander Bhusan Barowalia, J.

The present petition, under Article 227 of the Constitution of India, has been maintained by petitioner, against the order dated 16.08.2018, passed by learned Commissioner, under the Employee's Compensation Act, Rampur Bushahr, District Shimla, H.P., wherein application under Section 10 of the Employee's Compensation Act (hereinafter to be called as ?the Act?), with a prayer to file application under Section 22 of the Act, after the statutory period, has been allowed.

2. Briefly stating facts giving rise to the present petition are that respondent No. 1 filed an application under Section 22 of the Act, claiming compensation for suffering injury in his right hand middle finger, during the course of employment under the petitioner and respondent No. 2, as a Dryer Operator. As per the petitioner, the said application was time barred and deserves to be dismissed, as the petitioner did not disclose sufficient grounds for condonation of delay and moreover the lacuna was being tried to be filled up, however, learned Commissioner without granting an opportunity to the contesting parties to prove their objections allowed the said application.

3. The application filed by the applicant was resisted and contested by respondent No. 1 by filing reply, wherein preliminary objection qua maintainability has been taken. On merits, it has been averred that the delay cannot be condoned and the lacuna by moving the application cannot be filled up at belated stage. Lastly, a prayer for dismissal of the application has been made.

4. Learned Court below vide impugned order dated 16.08.2018, allowed the application, so filed by the applicant, hence the present petition.

5. Learned counsel for the petitioner has argued that the learned Court below has failed to take into consideration the fact that claim petition was time barred and the order of the learned Court below is illegal. On the other hand, learned counsel for respondent No. 1 has argued that it was for the petitioner to make the payment of amount due and permissible instantaneously and the petitioner cannot take the plea that claim is time barred. Learned counsel for respondent No. 2 has argued that it is for the petitioner to pay compensation, as respondent No. 1 was employee of the petitioner.

6. The case of respondent No. 1 is that he was working as Dryer Operator with respondents No. 1 and 2, being regular employee and on 23.07.2014, at about 11:00 a.m., when he was working near the rotary machine, his right hand middle finger was stuck inside the moving machine, resultantly, the middle finger of his right hand got amputated. After the said accident respondent No. 1 asked the Manager of milk plant to report the matter to the police, but he assured him that they will compensate him later on, when he will join his duties. However, thereafter respondent No. 1 kept on asking the respondents about compensation, but, the respondents on one pretext or another delayed the matter by giving false assurance to him, as such, respondent No. 1 could not file the claim petition earlier.

7. It is settled proposition of law that it is for the employer to immediately calculate the compensation and pay it to the employee and if there is any delay, employer is to make the payment of penalty also, but in the instant case strangely enough the employer is denying the payment of compensation and earlier he was assuring respondent No. 1 that the payment will be released with respect to the compensation. Admittedly, the injury and incapacity by way of loss of one finger is not in dispute. In these circumstances, this Court finds no infirmity with the order passed by learned Court below holding that the just claim of the petitioner cannot be denied and barred on the flimsy grounds and technical reasons. When the employer-petitioner was assuring employee-respondent No. 1 that he will make payment and on this pretext delaying the matter, there is continuing cause of action. In these ci