A. Pasayat, J.
1.The point which is involved in this appeal is the justification for levy of penalty and interest imposed under Section 4-A(3) of the Workmen's Compensation Act, 1923 (in short 'the Act').
2 A brief reference to the factual position would be sufficient for disposal of this appeal.
In Workmen's Compensation Case No. 10 of 1985, it was held by the Commissioner for Workmen's Compensation and Assistant Labour Commissioner, Balasore (in short 'the Commissioner') that the applicant in that case was entitled to compensation under the provisions of the Act to the extent of Rs. 63,059.20. The present appellant was held to be liable to pay the aforesaid amount of compensation within a period of thirty days; the order was passed on 3.8.1985; the quantified amount was deposited by the insurer on 14.10.1985. This position is undisputed. Three days prior to this deposit the Com-missioner imposed penalty to the tune of 50 per cent of the quantified amount which came to Rs. 31,529.60 along with 6 per cent simple interest from the date of passing of the order, i.e., 3.8.1985. There was a further stipulation in the order that the compensation, penalty and interest were to be paid within fifteen days failing which the revenue authorities were to be moved for recovery of the amount under the provisions of the Orissa Public Demand Recovery Act.
3. It appears that after the payment, an application was moved by the insurer to recall the order of penalty on the basis of a reported decision of this Court in the case of Oriental Fire and General Insurance Co. Ltd. v. Matias Burla 1986 ACJ 732 (Orissa). The Commissioner refused to recall his order saying that he had no power of review and had become functus offico after the order in question was passed. The insurer has assailed the correctness of the order on the. ground that a bare reading of Section 4-A(3) makes it clear that the expression 'employer' used in the said Sub-section does not include the insurer which is the indemnifier in respect of any amount awarded against the insured. This position seems to be fairly well settled in view of the decision of this Court referred to above. It further appears that before the impugned order was passed no opportunity was granted to either the employer or the insurer to have their say in the matter. Even though the grant of such opportunity is not specifically provided for, yet principles of natural justice impose grant of such opportunity. Grant of such opportunity becomes very necessary because there is discretion vested on the Commissioner to impose penalty or award interest. The maximum limit is indicated and it is not mandatory that the maximum should be awarded or levied in every case. In appropriate cases also even though the power to levy interest or impose penalty is given to the authority, it may choose not to do so considering the nature of the default, if any. Penal consequences flow normally from contumacious conduct and if there is no wilful default or deliberate defiance of an order, the authority may choose not to award interest or levy penalty. Granted an opportunity, the employer or the insurer may prove to the satisfaction of concerned authority that the case at hand was one where levy of penalty or award of interest may not be warranted. It appears that in the instant case as indicated above no opportunity was granted by the Commissioner. That also added to the interdiction of the action by the Commissioner. Looked from any angle, the order of the Commissioner impugned cannot be sustained. The same is nullified and the appeal is allowed. No costs.