Divisional Forest Officer vs Mohammad Maqbool Rather

T.S. Doabia, J.—The circumstances under which this Letters Patent Appeal has come to be filed, be noticed:

Mohammad Maqbool Rather met with an accident. He sought remedies under the Workmen's Compensation Act 1923 thereinafter referred to be

as Act). The Commissioner under the Act found justification in the claim lodged by Mohammad Maqbool Rather thereinafter to be referred as

Workman'). Compensation of Rs. 75,348/ was allowed and order to this effect was passed on 03121991. The amount was to be deposited

within a period of thirty days. This was not done. The Workman received the compensation on 05051994. He sought assistance of Section 4A (3)

of the Act. The argument put across was that as the compensation was not paid within thirty days as directed vide order dated: 03121991,

therefore, the penal provisions of Section 4A would be attracted. This plea found favour with the Commissioner under the Act. A sum of Rs.

55,757 has been allowed. This represents 50% of the amount of compensation and also interest at the rate of 6% per annum. This order was

challenged in this Court. The learned Single Judge of the Court came to the conclusion that no question of law arises. Appeal was dismissed. The

employer has come with this LPA.

The short question which is required to be governed is as to whether the provisions of Section 4A (3) are available once a decision is given

under Section 4A. This would necessarily require examination as to what is meant by the term, ''Where any employer is in default in paying the

compensation due under this Act.' These are the words used in Section 4A (3) of the Act. For facility of reference it would be apt to notice this

statutory provision which is reproduced below:

4A' (3). Where any employer is in default in paying the compensation due under this Act within one month from the date if fell due, the

Commissioner shall

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at

such higher rate not exceeding the maximum of the lending rates of any Scheduled bank as may be specified by the Central Government, by

notification in the official Gazette on the amount due; and

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest

thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty:

Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to

show cause why it should not be passed.

The legal proposition is well settled. Compensation falls due as soon as accident take place causing death or loss or disablement to the

employer. The liability of the employee arises as soon as an injury is caused and not on a subsequent occasion. This is apparent from the plain

reading of Section 4A (3) of the Act. The judicial precedent in this regard can be cited. In Janatha Modern Rice Mills Vs. Satyanarayana, 1995

Labour Industries Cases 677, the Commissioner under the Act allowed interest at the rate of 16% per annum. However, penalty was not allowed.

The argument put across was that penalty should also have been allowed. The Andhra Pradesh High Court was of the opinion that the

Commissioner cannot allow interest at the rate of 16%, as under the Act, simple interest at the rate of 6% per annum can be allowed and as

penalty was not allowed, therefore, question of allowing penalty would not arise. The fact that the compensation becomes due as soon as accident

takes place and when injury is caused and not on any subsequent occasion is no longer res integra. Other decisions on the point are quoted by the

Andhra Pradesh High Court in para 9 of the aforesaid judgment. These are as:

1) Pratap Narian Singh Vs. Sri Nivas. AIR 1976 SC 222: 1976 Lab 1C 222:

2) Margarida Gomes Vs. M. Mackenzie and Co., AIR 1968 Bombay 328: 1968 Lab 1C 1197:

3) Saraswali'Press Vs. Nand Rain, 1971 ACJ 316: 1971 Lab 1C 1341:

4) Smt. Vimlaben Vashrambhai Vs. The Gujrat Housing Board, 1975 ACJ 84:

5) Jayamma Vs. Executive Engineer, PWD"", 1982 Lab 1C NOC 61: 1982 acj 361;

6) Ramlal Vs. Regional Manager. Food Corporation of India, Jaipur, 1981 Lab 1C 1281:

7) Vijay Ram Vs. Janak Raj 1981 Lab 1C 143:1981 ACJ 84;

8) Ram Dulari Kalia Vs. H.P.S.E. Board, Simula, 1987 Lab 1C 748;

9) U.P. State Transport Corporation Vs. Abdul Hameed, 1985 (50) FLR 92.

In view of the above, we are of the opinion that once the petition was decided under Section 4 of the Act and penalty and interest was not

allowed, then better course was to challenge the order but when it was not challenged second petition would not be maintainable. Cause of action

accrued when accident took place and not when order was passed by the Commissioner. In view of the above, second petition, preferred under

Section 4A (3) of the Act, was totally misconceived. It cannot be adjudicated upon. We uphold the argument put across by the appellant that

when the original petition was filed and decided, the second petition would not lie as the same would be hit by the principle of res judicata and

constructive res judicata.

This appeal is. accordingly, allowed. The impugned order is set aside. The respondent is held not entitled to seek assistance of Section 4A (3) of

the Act. The amount deposited be refunded to the employer. The amount, if deposited in the interest bearing account, the interest too would be

refunded to the employer. We, however, direct that the workman would be entitled to the costs of litigation. These are fixed as Rs. 1,000/.

Disposed of.