The main legal point established in the judgment is that a certificate is required to be furnished for an appeal against an award as envisaged under Section 30(1)(a) of the Act, but not for an appeal against an award imposing penalty under Section 30(1)(aa) of the Act.

JUDGMENT :

S.C. Mohapatra, J. - Stamp Reporter has pointed out that absence of certificate required u/s 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 u/s 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 reconsideration 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 u/s 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 Hindustan Steel Ltd. Vs. State of Orissa, and one unreported decision of this Court in Sharma S.D. Vs. Ramesh Mahakud and Another in support of his contention. In this view of die matter, it is stated that furnishing of certificate should be exempted.

4. I am not inclined to accept such contention. Where the statute requires a certificate to be furnished and leaves no discretion with die 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 where after 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 die further condition is also die 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 u/s 30(1)(a) of the Act. It does not envisage that in an appeal against an award imposing penalty u/s 4-A of the Act, as provided u/s 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-

xxxx xxxx xxxx

(aa) an order awarding interest or penalty u/s 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 a certificate by the Commissioner to the effect that the appellant has 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 u/s 30(1)(a) of the Act. Therefore, an award imposing penalty u/s 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 u/s 30(1)(a) and Section 30(1)(aa) of the Act. In such a case, if the appellant confines himself to the imposition of penalty only, no certificate would be necessary. If, however, the entire award on both the gr