P L D 1969 Quetta 44 (PLP)

Basharat Ullah for Respondent No.

1. Commissioner, Workmen's Compensation in person on 1‑4‑69 Dates of hearing : 31st March and 1st April 1969. This is an appeal under section 30 of the Workmen's Com pensation Act, 1923, against an order dated 4‑7‑66 passed by Mr. M. R. K. Ghori, Commissioner, under Workmen's Com pensation Act, Quetta Region, Quetta, whereby he has summarily dismissed the claim of the appellant for the lump sum compensa tion for Rs. 4480/ on account of an accident met by the appellant allegedly during and in the court of the employment of respondent No. 1, near their office building at Degari Mines, Degari, on 6‑12‑64.

2. Briefly the facts giving rise to this appeal are that the appellant was the employee of the West Pakistan Industrial Development Corporation, Gegari Mines, Degari, at their Coal Mines at Degari, as a Truck Cleaner at a monthly salary of Rs.

75. It is alleged that while the appellant was working on a truck at the premises of the respondent No. 1, he met with an accident on 6‑12‑64 which resulted in personal bodily injuries to the appellant. Thereupon the appellant was immediately removed to and got admitted in the Civil Hospital, Quetta, from where he was discharged on 10‑2‑

65. The appellant thereafter proceeded to Rawalpindi in order to rejoin his parents. However, it seems that he had not recovered even after his discharge from Civil Hospital, Quetta, and remained under medical treatment and care of the Central Government Hospital, Rawalpindi. The Associate Surgeon, Central Government Hospital, Rawalpindi, issued Provisional Medical Certificate to the effect that the appellant had been under his treatment with effect from 16‑3‑65 to 9‑4‑65 and from 29‑3‑66 to 13‑4‑

66. On account of the injury suffered, according to this certificate, it was opined that "he has urinary absolution due to stricture uretha." It was also noted that he was still under treatment as an out patient. Subsequently, the disability caused to the appellant due to the said accident was finally assessed on 22‑5‑66 by the aforesaid Associate Surgeon, Central Government Hospital, Rawalpindi, who declared the disability to be permanent and issued a certificate in that behalf.

3. It is alleged that during the period when the appellant was under the medical treatment and care in the Central Government Hospital, Rawalpindi, he submitted certain applications and representations to respondent No. 1, intimating his prolonged illness and claimed monthly wages from the said respondent. The respondent No. 1 appears to have accepted its liability subject to production of medical certificate from the authority under whose treatment and care, the appellant was at that time sub ject. After the final assessment of the permanent disability of the appellant on 22‑5‑66, already referred to, the appellant came to Quetta and got a notice issued under section 10 of the Workmens Compensation Act, 1923, to respondent No. 1 calling upon him to pay a sum of Rs. 4480 by way of compensation on account of the accident already mentioned. Respondent No. 1 agreed to pay a sum of Rs. 101.33 and asked for a medical certificate showing the percentage of disability for the purposes of recon sideration of the case. According to the appellant since the percentage of disability had already been indicated in the certificate of the Associate Surgeon dated 22‑5‑66 wherein it was stated that he is now a disabled man and is recommended maximum compensation possible, the requirement to submit any further certificate was tantamount to refusal of the claim.

4. Being dissatisfied with the answer of respondent No. 1, the appellant on 29‑6‑66 filed a claim against respondent No. 1 for a lump sum compensation amounting to Rs. 44:;0 before respondent No.

2. The appellant alongwith the said claim also filed an application under section 10 of the "Workmen's Com pensation Act, 1923, for condonation of the delay. The reference to subsection (2) of section 10 is a mistake.

5. The Commissioner under the Workmen's Compensation Act passed an order on 4‑7‑66 without recording any evidence or summoning respondent No. 1 observing: "Time barred case. Application is dismissed." This is an appeal under section 30 of the Act challenging the legality of the said order.

6. Mr. K. Shaheen, learned counsel for the appellant, sub mitted that the appellant had duly submitted an application for condonation of delay which was supported by an affidavit explaining the reasons why the claim could not be submitted within the time limited by law i.e. one year. He has further submitted ‑that there was no rebuttal to the affidavit filed by the appellant in support of his application for condonation of delay and in fact the other side was not even called upon to answer the claim, as the application was summarily dismissed. In this connection he has cited before me the provisions of rule 26 of the West Pakistan Workmen's Compensation Rules, 1961, which lay down that the Commissioner may, after considering the application and the result of any examination of the applicant under Rule 25, summarily dismiss the application, if, for reasons to be recorded he is of opinion that there are no sufficient grounds for proceed ing thereon. The learned counsel contends that no reasons have been given indicating why the Commissioner was of the opinion that there are no sufficient grounds for proceeding with the application and in fact the learned Commissioner does not appear to have even been conscious of the application for condonation of delay, as he has not referred to it. In this connection attention is also invited to the fact that the appellant applied for copies of all the documents attached with the appeal, including the copy of the application for condonation of delay, and the affidavit submitted in support thereof but these copies were refused by the same learned Commissioner for mala fide reasons. He, therefore, contends that his application for condonation of delay not having been disposed of, the dismissal of the claim is against law and deserves to be set aside.

7. Mr. Basharat Ullah, Advocate, on behalf of respondent No. 1 has contended that under section 30 of the Act, no appeal shall lie against any order unless a substantial question of law is involved in the appeal. According to the learned counsel, the dismissal o the claim, which was admittedly time‑barred, cannot be said to be an illegal exercise of jurisdiction and, therefore, the present appeal is not competent.

8. I do not agree with the learned counsel for respondent No. 1 that the present appeal is incompetent. The question whether there is sufficient cause for extension of limitation to enable the application for compensation to be heard on merits has always been regarded as a substantial question of law Attention in this regard is invited to Said Ahmed v. North, Western Railway, Lahore (A I R 1940 Lah.

227. The principle is also well known that the fact that the man had been ill and was a complete wreck after his discharge from the hospital is a sufficient cause within the meaning of the relevant proviso to section 10 (I) of the Act vide Pollachi Transport Ltd, v. Arumuga Kounder (A I R 1938 Mad. 485). The facts stated in the affidavit, which stand unrebutted go to show that the appellant was prevented from fling his claim for grant of lump sum compensation within the prescribed period of one year due to his prolonged illness suffered on account of the accident and the three major operations performed on the appellant in hospital which had incapacitated him and rendered him totally unfit to travel from Rawalpindi to Quetta to claim any compensation from his employers. It is, therefore, clear that plausible grounds for claiming condonation of delay hid been set forth and it was the duty of the Commissioner under the Compensation Act to have applied his mind to the grounds adduced in support of the plea of condonation of delay. The Commissioner has acted in an arbitrary and high handed fashion. It is an admitted position that the proceedings before the Commissioner are of a quasi‑judicial nature and the Commissioner being a statutory, functionary charged with the duties of determining rights of the citizens, it was his bounden obligation to apply his full mind to the circumstances placed before him and to give a proper adjudication thereon. His order is singularly lacking in reasons, which are required by the provisions of the Rules itself, to be recorded when he chooses to dismiss the claim summarily. The perfunctory manner in which) he has disposed of this claim, constrains me to remark that he has not performed his statutory duty in accordance with the demands of law. The question raised involves a substantial question off law, and the present appeal is clearly competent.

9. As a result of the observations made above, I hold that this appeal should be allowed with costs and the order dated 4‑7‑66 be set aside. I he costs shall be payable by the Com missioner under Workmen's Compensation Act (respondent No. 2). In view of the long delay, that has occurred in the disposal of this claim, I direst that the present Commissioner, under the Workmen's Compensation Act, who is present in person shall take up this matter on 10th April 1969, and dispose it of without undue delay. All the parties have been informed of this direction and no further notices need be issued to them, A. E. Appeal allowed.