1. This appeal arises out of a proceeding under the Workmen's Compensation Act.
2. Mathura Prasad, Smt. Chandrakala Devi and Sanjay Kumar are the appellants. The facts leading to the case are that there was an ice factory in which Ram Surat and Budhi Ram were employed. There was an accident in the factory and as a result of the injury sustained in the accident, Ram Surat died and Budhi Ram sustained injuries. Two applications for claim were filed under the Workmen's Compensation Act. Smt. Shanti Devi, the mother of Ram Surat deceased, applied for compensation. Budhi Ram who was injured, also applied for compensation. Mathura Prasad was impleaded as the employer. The two cases were heard together and the evidence was recorded in the case of Smt. Shanti Devi. This is permissible under rule 40 of the rules framed under the Workmen's Compensation Act.
3. The Workmen's Compensation Com missioner awarded Rs. 4,000 as compensation to Smt. Shanti Devi for the death of Ram Surat and awarded Rs. 3,267 as compensation to Budhi Ram.
4. Appeals were filed by Mathura Prasad against the order in the High Court but the same were dismissed. Thereafter Mathura Prasad, Smt. Chandrakaia Devi and Sanjay Kumar moved two applications in the case of Smt. Shanti Devi v. Mathura Prasad alleging that the order of the Workmen's Compensation Commissioner warding Rs. 4,000 as compensation to Smt. Shanti Devi were null and void,???llarly, Mathura Prasad, Smt. Chandrakaia Devi and Sanjay Kumar moved two applications In the case of Budhi Ram v. Madhura Prasad making almost the same allegations and claiming that the order of the Workmen's Compensation Commissioner, dated 12 October, 1973, awarding compensation to Budhi Ram were null and void.
5. These applications were dismissed by the Workmen's Compensation Commissioner. It was pointed out before the Workmen's Compensation Commissioner that despite the order passed in favour of Smt. Shanti Devi and Budhi Ram, the compensation had not been paid and he made an order under S. 4-A of the Workmen's Compensation Act directing Mathura Prasad to pay interest at the rate of 6 per cant on the amount of Rs. 4,800 to Smt. Shanti Devi from 12 October, 1973 to 12 December, 1977, and shall also pay a sum of Rs. 2,400 which is 50 per cent of the compensation to Smt. Shanti Devi by way of penalty. Similarly, in the case of Budhi Ram he directed Mathura Prasad to pay the compensation already awarded as well as interest at 6 per cent thereon from 12 October, 1972 to 12 December, 1977, and also to pay a further sum of Rs. 1,600 as penalty to Budhi Ram.
6. Aggrieved by these orders, the appellants, as mentioned above, have filed this common first appeal from order.
7. The learned counsel for the appellants maintained that one first appeal from order against the order of the Workmen's Compensation Commissioner was maintainable as there was a common judgment. There were two independent cases though they were consolidated by the Commissioner in accordance with the rules. Nevertheless, I am doubtful whether one single first appeal from order is maintainable. I will, however, decide this appeal on merits.
8. Two earlier orders awarding compensation have admittedly become final as the appeal against them were dismissed by the High Court. It was not open to the Workmen's Compensation Commissioner to treat the order of his predecessor directing the compensation to be paid as null and void. The appellants other than Mathura Prasad have no locus standi as they were not affected by the orders directing compensation to be paid as the orders could not be enforced against them.
9. It is then urged very strenuously by Sri D.S Misra, counsel for appellants, that the Workmen's Compenatton Commissioner became funtcus officio as soon as it decided the two applications filed before it and it had no jurisdiction to award interest and penalty as bad been done at a later stage when an application to set aside the earlier order of the Workmen's Compensation Commissioner was filed. It is submitted that there is no power of review in the Workmen's Compensation Act as the powers of review is confined under the Act to the powers contained in S. 6 of the Act which admittedly is not attracted in the instant case.
10. There is a further provision in relation to the judgment of the Workmen's Compensation Rules. Rule 32(2) shows that the Commissioner at the time of signing and dating his judgment shall pronounce his decision and thereafter no alteration or addition shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission. It is true, that S. 6 of the Act is not attracted in the instant case. It is also true that what the Workmen's Compensation Commissioner had done by way of levying interest and penalty, cannot be done under rule 10(2). It is manifest that the Commissioner cannot alter the amount of compensation awarded. The question that remains for consideration is whether an order under S. 4-A of the Act which was inserted by Central Act 8 of 1959, in the Workmen's Compensation Act, was an independent order, i.e., an order distinct from the order awarding compensation. There is an indication in the Act that an order awarding compensation is distinct from an order under S. 4-A of the Act awarding interest and penalty. Section 30(1) of the Act under its various clauses provides for an appeal to the High Court. Under S. 30(1)(a) of the Act an order awarding as compensation a lamp sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part of a lump sum is applicable. Under S. 39(1)(aa) of the Act inserted by the Central Act 8 of 1959, an order awarding interest or penalty under S. 4-A is appealable. Thus, the nature of the two orders is different and they are appealable under different provisions.
11. It is true that in a normal case when an order is made awarding compensation to the workmen the Commissioner can also make, if necessary, an order awarding interest and penalty under S. 4-A of the Act. The Commissioner should normally do so. It is only where an order under S. 4-A has not been made when the compensation is determined, that the question will arise as to whether the Commissioner can subsequently make an order under S. 4-A of the Act. It can be urged that when the Commissioner failed to make an order under S. 4-A of the Act while determining the amount of compensation, he must be deemed to have refused to make an order under S. 4-A of the Act. When on the facts of a given case it is clear that the Commissioner, in fact, has refused to make an order under S. 4-A of the Act when he made an order regarding the payment of compensation then obviously the Commissioner at a later stage cannot make an order under S. 4-A awarding interest and penalty. In the instant case, it appears that the Commissioner did not direct his mind to the question as to whether an order under S. 4-A of the Act should be made when he orginally determined the applications for award of compensation filed by Smt. Shanti Devi and Budhi Ram.
12. There is another aspect to looking at the matter and that is that though the Com-missioner may recover any amount payable by any person under S. 31 of the Act, this could not take away the powers of the Commissioner to make an order under S. 4-A(3) when default in the payment of compensation continues as in the instant case. A long period had expired but the compensation awarded had not been paid. Therefore, it was fully competent on the part of the Workmen's Compensation Commissioner to make an order tinder S. 4-A (3) of the Act directing payment of interest and penalty by Muthura Prasad. In the circumstances, I reject the argument of the learned counsel for the appellants that the Workmen's Compensation Commissioner had no jurisdiction to make an order directing recovery of penalty and interest on the ground that the Workmen's Compensation Commissioner had become unctus officio after he had awarded the compensation to Smt. Shanti Devi and Budhi Ram.
13. The appeal tails and is dismissed with costs.