CEMENT CORPORATION OF INDIA Vs. MANJU PALIWAL

JUDGEMENT

(1.) THIS appeal preferred under Section 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') is directed against the award of the Commissioner for Workmen's Compensation (for short 'the Commissioner'), Bilaspur dated 8.4.1992 passed in case No. 13/WCA/91/F. The husband of the Respondent, late D.K. Paliwal by name, was an employee in the establishment of the Appellant-Company and he died on 28th June 1989 in an accident arising out and in the course of his employment. The widow of the deceased, the Respondent herein, filed a claim petition under the Act for compensation. The Commissioner passed the award on 8.4.1992 and awarded compensation of Rs. 65,000/- with interest at the rate of 12% with penalty quantified at Rs. 30,000/- plus costs quantified at Rs. 500/-. Hence, this appeal by the aggrieved Appellant-Company.

(2.) WE have heard learned Counsel for the parties. It was contended by Shri P.S. Koshy, learned Counsel for the Appellant, that in the facts and circumstances of the case, the Commissioner is not justified in awarding interest and imposing penalty. Elaborating his submission, Shri Koshy would submit that immediately after the Appellant-Company came to know the death of the husband of the first Respondent, it wrote a letter on 14.6.1990 to the Commissioner seeking clarification whether the Company is liable to deposit compensation with regard to the death of D.K. Paliwal expressing its doubt whether it was required to deposit compensation because D.K. Paliwal on the date of the accident was serving as Joint Senior Manager (ProductionO (P & A) and he was not a "workman" as defined under Clause (n) of Section 2 of the Act. There was no immediate reply from the Commissioner. In the circumstance, the Appellant-Company sent a reminder on 19.12.1990. Then came the response from the Office of the Commissioner dated 28.12.1990. Though the same was sent by the Head Clerk in the Office of the Commissioner, the Appellant-Company was told that the dependents of late D.K. Paliwal are not entitled to get compensation under the Act because he was Production Manager and the dependents of the deceased had to work out legal remedies in a Civil Suit. In view of this clarification contained in the letter of the Head Clerk, the Appellant-Company did not deposit compensation within the specified time, as required under Section 4A of the Act, and therefore, the Commissioner was not justified in awarding interest and imposing penalty. Shri Koshy would maintain that there was justification for the Company in depositing the compensation with delay. Smt. Hamida Siddiqui, learned Counsel appearing for the first Respondent, per contra, would point out that the clarification sent by the Head Clerk should not ensure to the benefit of the Appellant because, the Appellant did not contest the claim of the first Respondent for compensation on the ground that the deceased was not a "workman" within the meaning of that term, as defined under the Act, and since admittedly there was delay in depositing the compensation, the Commissioner is justified in awarding interest and imposing penalty on delayed payment of compensation.

(3.) HOWEVER, we are of the considered opinion that the Commissioner, in the peculiar facts and circumstances of the case, is not justified in imposing the penalty under Clause (b) of Sub-section (3) of Section 4A of the Act. It is quite clear from the provisions of Clause (b), the Commissioner could direct payment of penalty only if he is of the opinion that there was no justification for the employer in causing the delay in depositing compensation. In the instant case, it is stated, two persons died in the accident. According to the employer, the other victim was a "workman" whereas the husband of the first Respondent was not a "workman". It is not necessary for us to opine whether the above claim of the Appellant is justified and correct. Suffice it to state that labouring under the impression that the husband of the first Respondent is not a "workman", the Appellant-Company vide its letter dated 14.6.90 addressed to the Commissioner sought clarification as to whether it was required to deposit compensation with regard to the death of the husband of the first Respondent. As already pointed out, there was no immediate response from the Commissioner for considerable time and that led to the Appellant-Company sending a reminder on 19.12.90. Then came the reply from the Office of the Commissioner. No doubt, Annexure - C dated 28.12.90 produced before us would show that communication was sent by the Head Clerk in the Office of the Commissioner. When we peruse Annexure-C, it would show that the Appellant-Company was told in clear terms that the dependents of the deceased D.K. Paliwal are not entitled to compensation under the Act because he was not a "workman" for he was Production Manager and his dependents should work out legal remedies in a Civil Suit. It is stated that only after the dependents of the deceased-D.K. Paliwal filed claim petition before the Commissioner and the Company received notice in that proceedings, the Company filed its reply. In the reply, it is stated that if ultimately the Commissioner finds the Appellant-Company liable to pay the compensation under the Act, the Appellant-Company would pay the compensation.