1989 PLP 124 (PLC)

S.M. Malook Khohistani for Respondent No. 1. Date of hearing: 1st September, 1988. This petition under Article 199 of the Constitution is filed by the petitioner to challenge the order dated 29‑11‑1987 passed by the Commissioner for Workmen Compensation and Authority under Payment of Wages Act East Division Malir Karachi in Case No. 21 of 1987. The petition has arisen in the following circumstances: Respondent No. 1 filed an application dated 4‑3‑1987 before respondent No. 2 claiming compensation from the petitioner amounting to Rs.25,200, on account of partial permanent disability to the extent of 60%. It was alleged that the respondent No. 1 met with a road accident on 1‑5‑1986, while coming back after attending May Day meeting. It was further alleged that the respondent No. 1 approached several times to the petitioner for payment of compensation but he was refused. The application was contested by the petitioner who claimed that respondent No. 1 suffered injuries while working on 8 Room Machine and as the respondent was permanent workman and a secured worker within the meaning of Social Security Ordinance he was only entitled to claim compensation for such disability from the Social Security Institution. Respondent No. 2 on the pleadings of parties framed the following issues:‑ "(1) Whether the application is maintainable under section 10 of the Workmen Compensation Act, 1923? (2) Whether the applicant has already availed the benefit under Social Security Ordinance, 1965? (3) What should the relief be? The petitioner did not appear before respondent No. 2 on several dates of hearing whereupon ex parte proceeding was taken and after examining respondent No. 1, respondent No. 2 decreed the claim of respondent No. 1 for compensation amounting to Rs.25,200. The learned counsel for the petitioner urged in this petition that the respondent No. 2 having framed two legal issues namely, Issues Nos. 1 and 2 was bound to decide the same before deciding the case of respondent No. 1 was independent of the claim under Workmen's Compensation Act and Social Security Ordinance, respondent No. 2 was not bound to decide the legal issues framed in the case. It is true that in his application respondent No. 1 has specifically made his claim under section 10‑B of the Standing Order Ordinance, but in view of the denial and framing of legal issues referred to above in the case, respondent No. 2 should have decided the legal issues before examining the case on merits. It may be mentioned here that there is no categorical finding by respondent No. 2 that the claim of the respondent No. 1 was covered under section 10‑B of the Standing Order Ordinance. In these circumstances I accept this petition and declare the order dated 29‑11‑1987 passed by the respondent No. 2 as without lawful authority. However, in the circumstances of the case, I further direct that the case be remitted back to respondent No. 2 for fresh decision in accordance with law after allowing the parties opportunity of leading evidence. As the case was filed in the year 1987 and consideration time has passed the parties as directed to appear before respondent No. 2 on 21st September, 1988 on which date he may either record evidence of parties or may adjourn the case to some other date for that purposes and thereafter dispose of the case in accordance with the law. There will be no order as to costs. M.Y.H./S‑262/K Case remanded.