1979 PLP 114 (PLC)

Ss. 2 (g) & 30 read with West Pakistan Employees Social Security Ordinance (X of 1965) S. 81‑Compensation for disability‑Workmen secured under West Pakistan Employees' Social Security Ordinance, 1965‑Entitled to compensation under Social Security Scheme‑Jurisdic tion of Commissioner under Workmen's Compensation Act, 1923, held, barred by virtue of S. 81 of West Pakistan Employees' Social Security Ordinance, 1965‑Commissioner's order in such case challenged in appeal‑Question of limitation, held, not applicable to order passed without jurisdiction. Messrs Brooke Bond (Pakistan) Ltd., Karachi v. Rab Nawaz and another 1975 P L C 497 ref. This is an appeal against the order of the Commissioner under the Workmen's Compensation Act awarding compensation to the respon dent.

2. The respondent was in the employment of the appellant. He sustained an injury in his left eye in an accident arising out of and in the course of employment on 2nd May, 1975. He claimed compensation on the basis of his salary which was Rs. 330, per month. In spite of several adjournments the appellant failed to file any written‑statement and, therefore; it was ordered that application to proceed ex parte. However, before an ex parte proof was tendered the appellant made an application on 23rd June, 1976 for setting aside the ex parte order. Again the appellant remained absent on two hearings. However, on 3rd August, 1976 an application was made on behalf of the appellant that an affidavit would be filed and for that purpose the case was adjourned to 13th September, 1976. On the adjourn ed hearing the appellant was again absent and therefore, on 15th September, 1976 a final order on the main application for compensation was passed and Rs. 8,000, were awarded by the Commissioner. Aggrieved by this, the present appeal had been filed.

3. The main grievance of the appellant was that the final order was not justified as the application for setting aside the ex parte order was still pending and was not disposed of and at the most the application for setting aside the ex parse order could be dismissed for non‑appearance. I entirely agree with this contention. Before passing the final order it was necessary to have disposed of the application for setting aside the ex pate order. No order on that application was passed.

4. The impugned order was passed on 15th August, 1976 whereas this appeal was filed on 14th February, 1977 and application for condonation of delay was made. Indeed, it was stated that it was not known that any final order was passed and beside the order being without jurisdiction was nullity in law and question of limitation did not arise. This question depends upon the determination of the question whether the order which was passed by the learned Commissioner was without jurisdiction. The question of jurisdiction relates to the application of the West Pakistan Employees Social Security Ordinance, 1965. It is an admitted position that the respon dent was a secured person under the West Pakistan Employees Social Security Ordinance and, therefore, he was entitled to claim compensation under that Ordinance. I have already held in the case of M/s. Brooke Bond (Pakistan) Ltd., Karachi v. Rab Nawaz and another (1975 P L C 497) that the jurisdiction of the Commissioner under the Workmen's Compensation Act is barred by virtue of section 81 of West Pakistan Employees Social Security Ordinance 1965. Consequently, the order passed by the learned Commissioner is nullity, in law and cannot be given effect to.

5. In result I allow the appeal and set aside the order passed by the learned Commissioner and dismiss the application made by the respon dent under the Workmen's Compensation Act. He is advised to approach the Social Security Institution for the award of compensation in accordance with law.