P L D 1966 (W (PLP)

(1) Whether the accident arose out of or in the course of workman's employment (2) Whether the employer is liable to pay the compensa tion? (3) The legal heirs to whom the compensation is to be paid and the amount of compensation. This reference was received not in the office of the Commissioner who at that time was the Senior Civil Judge, Lahore but in the office of the Assistant Director, Labour Welfare on 12‑9‑1964 and having received it he made an endorsement that the matter will be taken up after his powers as a Commissioner are notified. He was so empowered by notification dated 23‑9‑64 which was issued under section 20 of the Workmen's Compensation Act. This gentleman who had been thus invested with the powers of the Commissioner took up the matter and issued notice to the parties on 23rd October 1964. He refrained as many as three issues of law and four issues of facts. All this had been done on 23‑11‑

64. Amongst the issues of fact the first issue was "whether, the deceased workman died of personal injury by accident arising out of and in the course of his employment". This issue was recast by the Commissioner on 12‑1‑65 in the following form: (i) Whether the deceased workman did not die of personal injury by accident arising out of and during the course of his employment? (ii) If issue No. 1 is not proved whether the respondent is not liable to pay compensation to the heirs of the deceased workman? This case then proceeded to evidence and having regard to the onus which had been placed upon the company by the issue which was recast as stated above the company's evidence was recorded by this Commissioner. He went on leave and the matter was then dealt with by his successor Mr. Abdul Aziz Bhatti who recorded the evidence of the widow of the deceased. He decided the preliminary objections taken on behalf of .the company and then proceeded to deal with the issues. In doing this he merely contented himself with answering the issues without any attempt to refer to any fact or evidence and without giving any reason whatever for the finding recorded therein. For instance, upon the first issue of fact this is all that the learned Commissioner has said:‑ "There is no evidence on the record to establish as to what happened to the deceased workman: His heart failed, but why? What was the cause? Post‑mortem would have established this. The company has therefore failed to prove that the workman did not die of personal injuries by accident." In view of his findings on the seven issues, all of which findings are recorded in a few lines, the Commissioner ordered the company to deposit Rs. 6,000 by cheque within a fortnight. It is against this order that the present appeal is directed.

3. Mr. Qureshi Muhammad Hafeez appearing for the appellant in the first instance contended that the reference itself was bad because it was not in accordance with the form prescribed under the rules which, in this case, was form FF. It was next contended that the Commissioner who entertained the reference had no jurisdiction and for that reason the whole proceedings are:-

4. It is true that it is the requirement of section 10(c) of the Workmen's Compensation Act and rule 14 of the West Pakistan Workmen's Compensation Rules that the reference by the Labour Officer has to be in form FF, but in my opinion the failure to adhere to the form would not be a matter in which this Court would be inclined to interfere in the exercise of its appellate powers under section 30 of the Act. The scope of the appeal is limited to a substantial question of law. But I would like to observe the mischief which resulted from the disregard of the form. For instance, the first clause of this form FF in which a reference has to be made requires a statement to be made to the effect that a workman employed by the particular employer received personal injury by accident arising out of and in the course of his employment. Clause (2) of this form requires it to be stated that the cause of the injury as has been ascertained was (the cause of the injury to be inserted). Clause (3) requires it to be stated that the workman concerned sustained the following injuries and so on. It is quite true as was pointed out by Mr. Ahmad Saeed, the learned counsel for the respondent No. 2, that it is not every clause of the form which has to be adhered to and many of them may be omitted in a particular case. But I am unable to agree that when a reference is made under section 10(c) the Labour Officer is absolved from the obligation of stating the fact, upon the proof of which the liability to pay compensation would arise against the employer. However, as I said if this was all. I would have not found it fit to interfere in appeal.

5. The next technical‑ objection raised by Mr. Qureshi Muhammad Hafeez was as to jurisdiction. The argument was that when this reference was made by the Labour Officer and was received by the Assistant Director, Labour Welfare that officer had no business to keep this reference with him in the expectation of being invested with‑the powers of the Commissioner at a future date. It was his duty to send it on to the Court of the Commissioner who at that time was the Senior Civil Judge, Lahore. There can be no doubt that that was the correct course to be followed. I am, however, unable to hold that this decision of the Commissioner Mr. Aziz Bhatti suffers from absence of jurisdiction. The notification empowering the Assistant Director was issued on 23rd September 1964 and the second clause of this notification provides that the Senior Civil Judges, Administrative Judges and Civil Judges appointed as Commissioners shall continue to be the Commissioners within the said area for the purposes of disposal of the cases instituted prior to the date of the publication of the notification. For the objection of jurisdic tion to succeed it would have been necessary to show that the jurisdiction to try cases in respect of accidents which happened before the date of the notification lay exclusively in the judicial officers named in the second clause of this notification. But that is not so. They were to continue to have jurisdiction in cases which were already instituted before them. In the present case, it cannot be said that this case was instituted in the Court of any of these judicial officers. It could not have been instituted before the Assistant Director but the fact that he retained this reference, however improper that may be, did not amount to the institution of the cases before the judicial officer. In the present case, the institution was effective when the matter was taken up by the Assistant Director after being empowered as a Commissioner for Compensation. That being so, he did have the jurisdiction though he acted rather peculiarly in retaining this case with him.

6. That brings me to the more important aspect of the matter, and that is the manner in which this case was tried. I have no doubt that the Commissioner was clearly wrong in recasting the issues and placing the onus in the manner in which he has done upon the company. I am referring to the first issue of fact as it was recast and which has been reproduced in this order earlier. Mr. Ahmad Saeed, who otherwise argued the case with ability, urged that in the circumstances of the case the onus could be rightly placed upon the employer because it is they who knew the circumstances in which Jalal Din had died. Reliance was placed by him on section 106 of the Evidence Act which provides that when any fact is specially within the knowledge of any person the burden of proving fact is upon him. I do not see how section 106 can be of any avail. The true purpose of this section is very clearly discernible from the two illustrations which follow this section. The first illustration is that when a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him. There has to be an allegation of fact. That allegation which would entitle the party to succeed would have ordinarily to be proved by him. But if having regard to the nature of the allegation and such prima facie evidence which might be furnished or which might be apparent it is pleaded by the other side that the thing did not happen in that way as it appeared the onus would then lie upon that party to prove the facts within his special knowledge in support of his plea.

7. I do not see how merely from the fact, that the person died in a factory premises without any apparent sign of injury the presumption would be that he died of personal injury caused by accident arising out of and in the course of employment. I agree with Mr. Ahmad Saeed that an injury may not be apparent; it may be hidden. But the requirements of section 3 have to be fulfilled before a case for compensation is made out. I am told that evidence had been led in this case which would have pointed towards this direction. But it is not for me to assess that evidence. That is the business of the Commissioner. I must say that I am amazed at the manner in which the findings on all the issues have been given without stating any single reason for such findings or without referring to any evidence in that respect. It may be that the learned Commissioner who has been newly appointed does not have experience in these matters. But it would be better that he should acquire the necessary knowledge in that regard before disposing of cases. Lack of such knowledge would only result in prolongation of these cases which would result from an order of remand as I am going to order in the present case. Having regard to the nature of these cases which involve many human aspects and in which at least a disabled employee or his heirs in the case of his death would be in a very weak position, financial and otherwise, it is necessary that the cases must properly and adequately be dealt with and disposed of satisfactorily.

8. In view of what I have said and considering that none of the findings of the learned Commissioner are given upon any reasoning or upon reference to any evidence, his order must be set aside. I order accordingly. The case shall go back to the Commissioner who shall hear the parties once again and if necessary record such evidence as may be further tendered and write a reasoned order upon the conclusion which he may reach. The appeal is allowed and the case is remanded. I shall leave the parties to bear their own costs. S. Q. Case remanded.