M/S Friends Honda Thru. Prop. Atal Singh Vs Om Prakash and Anr.

Neutral Citation No. - 2024:AHC-LKO:76636

Court No. - 4

Case :- FIRST APPEAL FROM ORDER No. - 667 of 2019

Appellant :- M/S Friends Honda Thru. Prop. Atal Singh Respondent :- Om Prakash And Anr. Counsel for Appellant :- Lakshmana Singh Counsel for Respondent :- M.K. Sahu,A.N. Tripathi,Amar Nath Tripathi,Manoj Kumar Sahu

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Hon'ble Rajnish Kumar,J.

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Heard Shri Lakshmana Singh, learned counsel for the appellant as well as Shri Manoj Kumar Sahu, learned counsel for the respondents and perused the records.

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Learned counsel for the respondents submits that the appeal has been filed and Lower Court record got summoned without compliance of the statutory provisions made in Section 30 of the Employees' Compensation Act, 1923 and deposit of the amount payable under the order appealed against, therefore, this appeal is liable to be dismissed. He relied on a Division Bench judgment passed in the case of Office of Assistant General Manager, Transport Corporation, Haridwar Vs. Smt. Reena and Others; 2017 (154) FLR 761.

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On the other hand, learned counsel for the appellant submits that he has not concealed that he has not deposited the awarded amount and a certificate to this effect has been annexed along with the appeal as Annexure No.2.

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Having heard learned counsel for the parties and having perused the records, it is reflected that the appeal has been filed against the judgment and award dated 06.11.2019 passed in E.C. Case No.43/ 2018; Shri Om Prakash and Another vs. Proprietor/ Partner/ Manager/ Occupier, M/s Friends Honda, Indira Nagar, Sector-10, Lucknow by the Employees Compensation Commissioner and Assistant Labouor Commissioner, Lucknow Region, 23, A.P. Sen Road, Lucknow under Section 10 of Employees' Compensation Act, 1923, by means of which an amount of Rs. 9,66,832.50/- along with simple interest @ 8% per annum has been awarded. This appeal has been filed annexing a certificate as Annexure No.2 that the respondent has not made any payment in the E.C. Case No. 43/ 2018.

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Proviso 3 of Section 30 of the Employees' Compensation Act, 1923 provides that 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

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has deposited with him the amount payable under the order appealed against. Section 30 of the Employees' Compensation Act, 1923 is extracted hereinbelow:-

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" 30. Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--

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(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;

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(aa) an order awarding interest or penalty under section 4A;

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(b) an order refusing to allow redemption of a half-monthly payment;

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(c) an order providing for the distribution of compensation among the dependants of a deceased *[employee], or disallowing any claim of a person alleging himself to be such dependant;

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(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or

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(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:

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Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than **ten thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify :

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Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:

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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.

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(2) The period of limitation for an appeal under this section shall be sixty days.

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(3) The provisions of section 5 of the Limitation Act, 1963 (36 of 1963)], shall be applicable to appeals under this section."

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In view of the above, the appeal does not lie and maintainable unless the amount payable under the order appealed against is deposited with the Commissioner and a certificate to the said effect is annexed with the appeal.

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A Division Bench of this Court, in the case of Office of Assistant

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General Manager, Transport Corporation, Haridwar Vs. Smt. Reena and Others (supra), has held that when the appellant has not deposited before the Commissioner the entire amount payable under the order appealed against, the appeal would not be maintainable and accordingly would be dismissed.

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In view of above, an appeal without depositing the entire amount awarded by the Compensation Commissioner and annexing a certificate to this effect is not maintainable. However, it appears that neither the awarded amount was deposited nor it was brought to the knowledge of the Court while filing the appeal and when the notices were issued. An application for waving/ exemption from depositing the amount of compensation, as awarded by the impugned judgment and award, has been filed. However, in view of the statutory provision, no such application is maintainable and this Court cannot exempt from depositing the ordered amount. Thus, this appeal is not maintainable and is liable to be dismissed.

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9. The appeal is, accordingly, dismissed .

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The lower Court record shall be remitted back to the concerned authority forthwith and in any case, within a period of two weeks from today.

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( Rajnish Kumar,J.)

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Order Date :- 20.11.2024 Gurpreet Singh

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Digitally signed by :- GURPREET SINGH High Court of Judicature at Allahabad, Lucknow Bench

M/S Friends Honda Thru. Prop. Atal Singh v. Om Prakash and Anr.

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M/S Friends Honda Thru. Prop. Atal Singh v. Om Prakash and Anr.

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