2010 PLP 1 (PLC)

SHAHID ANWAR BAJWA, J.

Brief facts giving rise to this constitutional petition are that Said Hussain who was employed by respondent No.3 died of natural causes on 24-6-2004. Besides Group Insurance amount of Rs.2,00,000 under Standing Order 10-B of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, his final settlement dues amounted to Rs.1,74,

127. The petitioner who is widow of the deceased filed an application for release of the amount. Commissioner vide order, dated 18-10-2005 ordered that 1/6th of the amount be paid to mother of the deceased and balance amount be equally distributed i.e. 155,886/50 each between the petitioner and Mst. Parwat Jan. The said Mst. Parwat Jan had also claimed to be another wife of the deceased. There is no disagreement as far the mother's share is concerned. After Mst. Parwat Jan's share was handed over to her on 8-6-2006, on 10-11-2006 counsel for the petitioner filed an application for recalling and setting aside order dated 8-6-2006 and in the application claimed that said Mst. Parwat Jan had, much earlier, been divorced by the deceased. On this application for recalling of order, dated 8-6-2002 the impugned order was passed whereby application was rejected. The learned Commissioner observed that the present petitioner was given ample time to file objections on Nikahnama of Mst. Parwat Jan, and mother of deceased had confirmed in her statement that Mst. Parwat Jan is also widow of Said Hussain and that application was filed after expiry of 30 days.

2. I have heard learned counsel for the petitioner. Learned counsel has invited my attention to page 43 of the file which according to him is a divorce deed written by the deceased on or about 7-11-1977. He also invited my attention to page 47 which is stated to be confirmation of divorce by the Union Council.

3. I have given my consideration to the submissions made by the learned counsel and have gone through the record.

4. Original order was announced by the Commissioner Workmen Compensation on 18-10-2005. Therefore, when the Commissioner made his decision this particular alleged fact was not in evidence before him. After the lis had been decided and that too almost after 9 months of such decision an application for recalling of order was passed. In adversarial system of justice which is hallmark of anglo saxon system, the parties are given opportunity to produce evidence during the trial. Once the trial has concluded and judgment has been finalized it is only in very, very limited circumstances as provided in Order XLI, rule 27 that evidence can be recorded by the Appellate Court.

5. There is another aspect of the matter. The question is did the Commissioner Workmen Compensation have jurisdiction to review its own order. Powers of the Commissioner Workmen Compensation are provided in section 23 of the Workmen Compensation Act, 1923 in the following words:-- "

23. Powers and Procedure of Commissioners.

The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects and the Commissioner shall be deemed to be a Civil .Court for all the purposes of section 195 and for Chapter XXXV of the Code of Criminal Procedure 1898 (V of 1898)."

6. A bare perusal of the above indicates that the Commissioner Workmen Compensation has no power to review its own order. In any case, the Honourable Supreme Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi, PLD 1970 SC 1, has held that power to review any decision by Court is like right' of appeal and is a substantive right and is not a mere matter of procedure. Power of review is not available unless it has been specifically conferred by law. A Division Bench of this Court in Ahmed Food Industries Ltd., Karachi v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1974 PLC 225 has very clearly laid down that power of review is not available to the learned Court. Powers of Labour Court under section 54 of the Industrial Relations Act; 2008 are much more extensive and wide compared with powers of Commissioner. Therefore, if learned Court with its wider amplitude of powers, has no power of review, how can Commissioner be asked to review its order in any case did not have any power to review its own judgment.

7. Result of the above discussion is that this writ petition is dismissed. The parties are left, to bear their own costs. H.B.T./N-45/K Petition dismissed