1988 PLP 716 (PLC(CS))

S.M. Kohistani for Respondent No. 1. Gul Malik for Respondent No. 2. Date of hearing: 14th February, 1988. This is an appeal filed by the appellants against an impugned order, dated 1‑12‑1986, passed by the Commissioner Workmen's Compensation and Authority under the Payment of Wages Act, East Division, Karachi, who had allowed an application under Standing Order 10‑B read with Workmen's Compensation Act, 1923, filed by respondent No.l, granting him an amount of Rs.10,000 being 50$ permanent partial disability as assessed by the Doctor in Form 'A'. 2. Briefly stated the facts of the case are that the respondent No.l claimed to have been a permanent workman of the appellants through respondent No.2, working as Shuttering Carpenter having about 7 years service to his credit. He claimed that on 15‑5‑1984, he received personal injuries arising out of and in the course of his employment and has submitted Form 'A' as he was not paid Group Insurance and Compensation for the injuries nor he was examined free of charge by either the appellants or by respondent No.2, from a qualified Medical Practioner. Further, the claim of respondent No.l was that on 17‑3‑1985, he got himself examined by a qualified Medical Practitioner who had assessed his permanent partial disability at 50%, thus, he claimed Rs.12,000 on ,account of said disability as Group Insurance/ Compensation from the appellants. 3. The appellants resisted the petition on legal ground as well as facts of the case. As, respondent No.2 herein namely Messrs Wahid and Fakhruddin, Petty Contractors, were ex parte, in spite the proper service of the notice, therefore, it was ordered to pay an amount of Rs.12,000 to the respondent No.2, but, subsequently this ex parte order was recalled and respondent No.2 was directed to participate in the proceedings, vide order, dated 11‑1‑1986. It was further claimed by the appellants that in fact the respondent No.l was not their employee as the work of shuttering was entrusted to the respondent No.2 who had engaged respondent No.l so the respondent No.l had sustained injuries during the course of the employment of respondent No.2, hence, the liabilities for making payments to the respondent No.l were entirely upon respondent No.2 and not upon the appellants. Thus, an application for payment of compensation under Workmen's Compensation Act against the appellants was not maintainable and liable to be dismissed. 4. Both the parties filed their respective affidavits‑in‑evidence and thereafter the learned Commissioner for Workmen's Compensation has passed the impugned order, hence, the present appeal. 5. I have heard Mr. Muhammad Humayoon, the learned Advocate for the appellants and Messrs S.M. Kohistani and Gul Malik, the learned counsels on behalf of respondents Nos. 1 and 2 respectively and have also perused the record and proceedings of the case as well as the written arguments submitted by all of them. At the very outset, after careful perusal of the impugned order, documents brought on record and appreciation of the evidence, I would come to the conclusion that the present appeal is against an order passed by the learned Commissioner for Workmen's Compensation clearly under the relevant provisions of the Workmen's Compensation Act and not under Standing Order 10‑B, therefore, the present appeal before this Tribunal is maintainable. As regards the facts of the case, it is an admitted position on record that respondent No.2 was admittedly a petty Contractor of the appellants and the relation of 'master and servant' of the respondent No.l was solely with the respondent No.2 and not with the appellants. Again, there is an admitted position that the respondent No.l had miserably failed to 'discharge the burden of proof to establish the fact that he was an employee of the appellants as neither he, nor the respondent No.2 was able to produce anything in writing on record to substantiate the claim that the appellants were the employer and liable to all the responsibilities. Further, according to the own evidence of the respondent No.l, he was not certain that who was his actual employer. He has stated that both namely the appellants and the respondent No.2 were his employer. This shows that under the instigation of respondent No. 2, he had deposed that the appellants were also his employer. While, on the other hand, there is a documentary evidence on record that respondent No.2 was a petty Contractor of the appellants and the respondent No.l, when had sustained the personal injuries, admittedly he had first intimated to the respondent No.2 about the accident who subsequently got him admitted into hospital and not at all the appellants. It is also an admitted position that after a lapse of more than 10 months, the respondent No.l got himself examined from a Medical Practitioner and had arranged to get 50% permanent partial disability certificate and even, in this case, he did not produce in' evidence before the learned Commissioner, the author of the Medical Certificate. It was also not proper for the learned Commissioner for Workmen's Compensation to revise its own order, dated 14‑7‑1985, directing the respondent No. 2 to pay a sum of Rs.12,000 and thereafter directed the appellants to make a payment of Rs.10,000 vide the impugned order, dated 1‑12‑1986. In view of this position, I would hold that the impugned order was not correctly and lawfully passed against the appellants and is hereby set aside. 6. For the reasons discussed by me above, I would set aside the impugned order and would allow the present appeal. The learned Commissioner for Workmen's Compensation, East Division, Malir, Karachi is hereby ordered to refund an amount of Rs.10,032 immediately to the appellants. A. E. /1199/Lb.S Appeal allowed.