JUDGMENT
C.K. Thakker, C.J.
1. Admitted. Mr. Sanjay Karol, learned Advocate General, appears and waives notice of admission on behalf of respondent No. 1 and Mr. Y.P.S. Dhaulta, learned counsel appears for respondent Nos. 2 to 5. In the facts and circumstances, the matter is taken up for final hearing today.
This petition is filed by the petitioner against the orders (Annexure P/2) dated April 29, 1999 and May 20, 1999. The said orders read as under:
“April 29, 1999: Called. Counsel for the applicant present. Counsel for the respondent Mr. O.P. Sharma present. The counsel for the respondent has filed reply. Now the case be listed for evidence for May 20, 1999. On the basis of the documents on record it is clear that the deceased Ramesh Kumar alias Bhatku was employed as a workman with the respondent and the accident occurred in the respondent’s hotel. Therefore, the respondent is directed to deposit an amount of Rs. 50,000 as interim compensation before the next date. i.e. May 20, 1999.
Sd/-
Commissioner,
Workmen’s Compensation,
Manali
May 20, 1999: Called. Present counsel tor the applicant. The respondent has not deposited the interim compensation of Rs. 50,000 as directed by this Court vide order dated April 29, 1999, therefore, the counsel for the applicant has objected to the cross-examination to be conducted by the counsel for the respondent, Therefore, the evidence of the applicant Rumla Devi is recorded. Now be posted on June 4, 1999.
Sd/-
Commissioner,
Workmen’s Compensation,
Manali.
2. The case of the petitioner is that a complaint had been filed by claimants-respondent Nos. 2 to 5 before the Commissioner, Workmen’s Compensation, Manali under the Workmen’s Compensation Act, 1,923 (hereinafter referred to as ‘the Act’). The allegation of the claimants was that deceased Ramesh Kumar was working with the present petitioner, He died on November 3/4, 1997 in an accident. The said accident, according to the applicant arose out of and in the course of employment and hence the claimants were entitled to get compensation and the present petitioner was liable to pay. But no compensation was paid. A prayer was, therefore, made by the claimants to the Commissioner to direct the present petitioner to pay an amount of Rs. 50,000 as interim compensation. Such order was passed by the Commissioner, Workmen’s Compensation and the petitioner was directed to pay a sum of Rs. 50,000 by way of interim compensation to the claimants-respondent Nos. 2 to 5. It is further provided that if such amount of compensation is not deposited by the petitioner within the stipulated period, the right of cross-examination would not be afforded to it.
3. It was contended by learned counsel for the petitioner that there is no power with the Commissioner, Workmen’s Compensation to direct the petitioner to pay interim compensation and the order is without jurisdiction which deserves to be quashed and set aside.
4. On the other hand, it was contended by the learned counsel for the claimants-respondent Nos. 2 to 5, that Section 4-A as inserted by Act 9 of 1959 enables and authorizes the Commissioner, Workmen’s Compensation, to pass such order and when the order is made, it was obligatory on the part of the petitioner to pay the amount of compensation. Since the amount has not been deposited, the petitioner is a defaulter and he has no right to make grievance. And the petition is liable to be dismissed.
5. Now, Section 4 of the Act provides for compensation. Section 4-A enacts that compensation should be paid when due. It also provides for penalty for default of payment of compensation.
6. The Section reads as under:
“4-A. Compensation to be paid when due and penalty for default:-(1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
(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 may direct that, in addition to the amount of the arrears, simple interest at the rate of six pet cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty”.
7. Sub-section (2) of Section 4-A, in our considered opinion, does not empower the Commissioner, Workmen’s Compensation to make order for payment of provisional compensation. The said sub- section contemplates cases where the employer does not accept the liability for payment of compensation to the extent claimed. In those cases, he is bound to make provisional payment to the extent of liability which he accepts by depositing it with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman for further claim. Thus, it may happen that in a given case, an employer may accept his liability to pay compensation but not in its entirety as claimed by the workman but a part of it. In such cases, it has been contemplated by the Legislature that he will make payment to the extent he has accepted the liability and provisional payment in pursuance of such liability. Such amount will be deposited by him with the Commissioner or payment will be made to the workman which would be without prejudice to the right of the workman to ask for further claim.
8. Sub-section (3) of Section 4-A further provides that in case there is default in payment within the stipulated period, the Commissioner, Workmen’s Compensation may direct that in addition to the amount of compensation the employer will pay interest as also penalty specified in the said Section.
9. To us, therefore, it is amply clear that what is envisaged by Sub-section (2) is acceptance of liability by an employer but only partly. In that case he is bound to make provisional payment to the workman to the extent of liability accepted by him which is without prejudice to the right of the employee.
10. It is contended by learned counsel for the claimants- respondent Nos. 2 to 5 that looking to the documentary evidence which is on record before the Commissioner, Workmen’s Compensation virtually the liability had been accepted by the employer and when an order was made, the employer was bound to make payment. In our opinion, however, Section 4-A of the Act is an enabling provision which provides for provisional payment by employer in case he accepts his liability to the extent accepted by him. But the Section does not authorise the Commissioner to pass an interim order directing an employer to make payment. Consequences enumerated in Sub-section (3) of Section 4-A will ensue only at the time of final order to be made by the Commissioner, Workmen’s Compensation. At that stage, he will take into consideration all the circumstances and make an order with regard to payment of compensation, interest as also penalty up to 50 per cent. He has, however, no authority or jurisdiction to make provisional award for interim compensation. Only on that ground and without entering into merits of the case, the petition deserves to be allowed and is accordingly allowed. The orders passed at Annexure P-2 are hereby quashed and set aside.
11. It is directed that the Commissioner, Workmen’s Compensation will proceed with the matter and decide the same on its own merits without being influenced by the observations made hereinabove. Since the matter pertains to workmen’s compensation and the accident took place in 1997, the Commissioner, Workmen’s Compensation, Manali, is directed to dispose of the case as expeditiously as possible preferably within three months from the receipt of the writ.