* HIGH COURT OF DELHI : NEW DELHI
FAO No. of 73 of 2008 & CM No.1080/2009
% Judgment reserved on:24th July, 2009
Judgment delivered on:28th July, 2009
Sh. Kaushal Chand Misra,
S/o. Late Sh. J.P. Misra,
R/o. House No.F-77, Sector 22,
Noida, Uttar Pradesh. ....Appellant.
Through: Mr. Rajesh Kr. Passey, Adv.
Versus
Sh. Azar,
S/o. Shri Mojim,
R/o. House No.337, Village Khirniya,
Post Office Balaha Bazar,
District Khagaria, Bihar.
Presently at:-
R/o. House No. C-421,
Sahid Sukhdev Nagar,
Wazir Pur Industrial Area,
Delhi- 110052. ...Respondent.
Through: Mr. R.K. Nain, Adv. for R-1.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
FAO No.73/2008 Page 1 of 8
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
Present appeal has been filed by appellant
challenging order dated 25th October, 2007, passed by
the court of Commissioner, under Workmen‟s
Compensation Act, 1923 (for short as „Act‟), vide which
application for setting aside ex-parte orders dated 8th
March, 2006 and 25th May, 2007 was dismissed.
2. Respondent/claimant, filed a claim petition for
compensation under the Act, as claimant was working
as mason with appellant. During course of
employment, respondent received injuries in an
accident.
3. Notice of claim petition was issued to the
appellant, but he remained absent. After taking into
consideration, the evidence lead by respondent,
Commissioner Workmen‟s Compensation (for short as
„Commissioner‟), awarded compensation of
FAO No.73/2008 Page 2 of 8
Rs.2,36,472/- to respondent/claimant along with simple
interest @ 12% p.a. with effect from the date of cause
of action i.e. 9th March, 2004 till date.
4. In proceedings before Commissioner on 8th
March, 2006, as appellant failed to appear and did not
file written statement, even after sufficient
opportunities have been granted to him, he was
proceeded ex-parte.
5. Appellant filed an application for setting aside of
ex-parte order. That application was dismissed by
Commissioner, on 25th October, 2007.
6. Aggrieved against these orders, appellant has
filed this appeal.
7. On 3rd March, 2008, when appeal came for
hearing before this Court, following order was passed;
“Appellant to place on record the entire
order sheet of Commissioner Workmen‟s
Compensation and additionally to
comply with Section 30 of the
Workmen‟s Compensation Act.
Re-notify for 14.7.2008.”
FAO No.73/2008 Page 3 of 8
8. It appears that this order has not been complied
with, till date by appellant. Since order dated 3rd
March, 2008, was not complied by appellant,
respondent on 12th January, 2009, filed an application
under Section 151 CPC read with Section 30 of the
Act, for dismissal of appeal on ground of non deposit of
awarded amount.
9. No reply to this application has been filed by
appellant, in spite of opportunities granted to him.
10. It has been contended by learned counsel for
respondent, that in view of Section 30 of the Act, as
appellant has not deposited the awarded amount,
present appeal is liable to be dismissed.
11. On the other hand, it is argued by learned counsel
for appellant that he filed an application for setting
aside ex-parte order, as such provisions of Section 30
of the Act, are not applicable to the present case and in
support of its contentions he cited a decision of this
FAO No.73/2008 Page 4 of 8
Court, reported as Mohd. Idrish & Sons v. Chagga
Ali and Another, 2003 (71) DRJ 147.
12. Section 30 of the Act reads as under;
“30. Appeals – An appeal shall lie to the
High court from the following orders of a
Commissioner, namely:-
(a) an order as awarding as compensation as
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;
[(aa)] an order awarding interest or penalty
under Section 4A;]
(b) an order refusing to allow redemption of
a half-monthly payment;
(c) an order providing for the distribution of
compensation among the dependents of a
deceased workman, or disallowing any claim
of a person alleging himself to be such
dependant;
(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
(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:
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 anFAO No.73/2008 Page 5 of 8
order than an order such as is referred to in
clause (b), unless the amount in dispute in
the appeal is not less than three hundred
rupees:
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:
[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.]
(2) The period of limitation for an appeal
under this section shall be sixty days.
(3) The provisions of section 5 of [the
Limitation Act, 1963)], shall be applicable to
appeals under this section.
13. According to third proviso to this Section, 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.
FAO No.73/2008 Page 6 of 8
14. Admittedly, at the time of filing of appeal,
appellant did not deposit the amount payable under
order appealed against, and that is why, on 3rd March,
2008, when appeal was taken up for hearing, appellant
was directed to comply with Section 30 of the Act.
15. More than one year and four months have passed,
but appellant has not complied with the provisions of
Section 30 of the Act, which are mandatory. As such,
the case law cited by learned counsel for appellant is
not at all applicable to the facts of present case. The
appeal challenging the impugned order of
Commissioner, thus, is not maintainable and it is
hereby, dismissed with costs of Rs.10,000/-.
16. Appellant is directed to deposit the costs within
one month from today with Registrar General of this
Court, failing which it shall be recovered, in
accordance with law.
17. The application stands allowed and appeal is
dismissed, being not maintainable.
FAO No.73/2008 Page 7 of 8
+CM Nos.3132-33/2008 in FAO No.73/2008
*
18. Since appeal has been dismissed, these
applications also stand dismissed.
19. List for compliance on 3rd September, 2009.
28th July, 2009 V.B.GUPTA, J.
rb
FAO No.73/2008 Page 8 of 8