Remanded

Rakesh Kumar Bhardwaj v. Asian Engineering

Himachal Pradesh HC16 Jul 2024FAO/225/2024

Case brief

AI extract

What is this about?

In this companion appeal, the High Court of Himachal Pradesh condoned a significant delay in filing an appeal against a workmen's compensation award, relying on the appellant's blindness and lack of legal awareness. Concurrently, the bench noted the lower Commissioner failed to decide on a 50% penalty for delayed payment.

What did the court decide?

The application for condonation of delay is allowed. The main appeal is remanded to the Commissioner to decide the entitlement to a 50% penalty for delayed payment within three months. The remainder o

Rakesh Kumar Bhardwaj Vs Asian… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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2024:HHC:5232

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAO (WCA) No.225 of 2024 Decided on: 16^th July, 2024

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------------------------------------------------------------------------------------- Rakesh Kumar Bhardwaj …..Appellant

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Versus

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Asian Engineering and another .....Respondents

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Coram

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Ms. Justice Jyotsna Rewal Dua

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Whether approved for reporting?¹

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For the Appellant: Mr. Arjun Lall, Legal Aid Counsel. For the Respondents: Mr. Hamender Singh Chandel, Advocate, for respondent No.1.

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Mr. Praneet Gupta, Advocate, for respondent No.2.

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Jyotsna Rewal Dua, Judge

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CMP(M) No.336 of 2024

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The main appeal preferred by the applicant against the award dated 10.09.2018 passed by the learned Commissioner under the Employee’s Compensation Act, 1923 is barred by five years, four months and seven days. Hence, this application has been moved seeking condonation of the delay in moving the appeal.

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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The non-applicants/respondents have been

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served. They are duly represented by their learned counsel, however, no reply to the application is intended to be filed by them.

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2. The reasons given for condoning the delay in moving the appeal, as canvassed by Sh. Arjun Lall, learned Legal Aid Counsel, are that the applicant has suffered 100% disability because of the accident. He has lost complete vision of both his eyes. The applicant was the sole bread earner of his family and now has become completely dependent. He has to fall back on his family members even for doing his daily chores. The applicant is an illiterate person, who on listening to radio, became aware that he could seek enhancement of the award amount by availing the services of Legal Aid Counsel under the aegis of State Legal Services Authority and that is how he instituted the present appeal through the learned Legal Aid Counsel.

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Taking into consideration the fact that the respondents have not filed reply to the application, the fact that the applicant has admittedly lost his vision; has suffered 100% permanent disability of his eyesight, as also keeping in view the reasons assigned in the application for the delay in moving the appeal, in my considered view,

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cogent explanation has been accorded for condoning the delay.

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In view of the above, the application is allowed.

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Delay in filing the main appeal is condoned.

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The application stands disposed of.

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FAO (WCA) No.225 of 2024

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3. This appeal arises out of the award dated 10.09.2018 passed by the learned Commissioner under Employee’s Compensation Act, 1923 in WCA/Claim Petition No.5/2012. In terms of the award, the appellant has been held entitled for compensation to the tune of Rs.4,99,152/alongwith interest @ 12% per annum from the date of the accident, i.e. 17.06.2009, till its actual realization.

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4. Learned Legal Aid Counsel for the appellant referred to Section 4-A(3) of the Workmen’s Compensation Act, 1923 (in short ‘the Act’), which reads as under:-

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“4-A(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-

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(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereupon 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

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(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

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

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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.”

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It was submitted that the compensation to the appellant needs to be enhanced by 50% of the awarded amount as penalty for the delayed payment in accordance with the provisions of Section 4-A of the Act.

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5. A perusal of the impugned award reveals that there is no discussion, whatsoever, in respect of entitlement of the appellant to the penalty amount under Section 4-A of the Act. Hence, for that reason alone and to that limited extent, the matter is remanded to the learned Commissioner for deciding the entitlement of the appellant to the penalty amount under Section 4-A of the Act. Remaining part of the impugned award is affirmed. The parties, through their learned counsel, are directed to appear before the learned Commissioner on 06.08.2024.

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Taking into consideration the fact that the accident in question had occurred on 17.06.2009, learned Commissioner shall expedite the decision on the aforesaid point and make earnest endeavors to decide the same within three months from today, i.e. by 31.10.2024.

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The appeal stands disposed of in the above

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terms, so also the pending miscellaneous application(s), if

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any.

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Registry to bring this order to the notice of the

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learned Commissioner forthwith.

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