HALEEMA BIBI Versus Ch. MANZOOR AHMAD, PRCPRIETOR NEWS AGENCY, BAHAWALNAGAR

This is an appeal a/s 30 of the Workmen's Compensation Act challenging the order dated 27‑9‑1984 recorded by the learned Commissioner for Workmen's Compensation, Bahawalnagar, whereby the application of the appellant for grant of compensation for the loss of the life of her son namely Mohammad Arshad, was dismissed.

2. It was contended by the respondent in his written statement that Mohammad Arshad, deceased was not a workman, therefore, the learned Commissioner for Workmen's Compensation had no jurisdiction. The respondent made a miscellaneous application requesting the decision of the question of the deceased being workman or not without recording of evidence on the whole case. The said application was accepted and the learned Commissioner after hearing arguments held that the deceased was not workman and thus dismissed the petition for grant of compensation. The learned Commissioner has wrongly held that the question of workman is legal one. By producing appointment order, it is to be shown in which capacity the deceased was employed and what were his duties. After considering the evidence the learned Commissioner could have come to a definite conclusion whether the deceased was or was not covered by the ‑definition of workman given in section 2 (n) read with Schedule‑II of Workmen's Compensation Act. It is said that the deceased was a conductor on a Suzuki but the learned lower Court has not accepted this plea of the appellant and has also held that even a conductor is not covered by the definition of workman. Without allowing opportunity to the appellant the learned Commissioner could not return the verdict on the point. Primp facie clause (i) of Schedule needs consideration which says that a person employed in connection with the operation or maintenance of the vehicle propelled by any mechanical power is a workman. A question of fact can never be decided without allowing opportunity to produce evidence. Since the learned Commissioner decided the issue without any evidence, great miscarriage of justice has taken place and thus the impugned order is not sustainable.

3. As a result, the appeal is accepted and setting aside the impugned order, the case is remanded for redecision after allowing proper opportunity to the parties to produce evidence on the whole case.

A.E./1368/Lb.P ??????????????????????????????????????????????????????????????????????????????????? Case remanded.