This Revision Application arises under the following circumstances:-
1. The respondent Jaleel Ahmed was at all relevant times employed as a Workman in Messrs Johnson & Phillips (Pak.) Ltd. On 23rd November 1962, he received an Injury on account of a fire resulting - in heavy electric shock. He was examined by Dr. Fazal Ellahi, who certified that the respondent had suffered estimated permanent incapacity of 50 per cent. The certificate was given by the Medical Officer on the 19th November 1965, viz. after nearly three years of the date when the respondent received the injury. The respondent filed an application under section 10 of the Workmen's Compensation Act, 1923 (herein--after referred to as the Act), on 20-2-1968 claiming a lump sum payment of Rs. 6,500.00 on account of compensation. This application was accompanied with an application under section 5 of the Limitation Act read with section 10 of the Workman's Compensation Act, 1923 and Rule 43 of the West Pakistan Workmen's Compensation Rules. This application contained a prayer for condoning the delay in filing the case. It may be stated that under section 10 (1) of the Act, a claim for compensation can be entertained by a Commissioner within one year of the occurrence of the accident.
2. The Commissioner for Workmen's Compensation (herein--after referred to as the Commissioner) admitted the said applica--tion and issued notice for 5th March 1968. The applicant put in an appearance on this date and filed written statement wherein the allegation contained in the application of the respondent were disputed. The matter was then adjourned to 2- 4-1968 at 10 a.m. for issues and evidence of the respondent.
3. It appears that on 1-4-1968 the Advocate for the present applicant made an application before the Commissioner requesting that the case which was fixed before the Commissioner for the next day viz. 2-4-1968 may be taken. up for hearing at 12-30 p. m. instead of 10 a.m. as the Advocate had to appear before the Industrial Court. On the same day viz. on 1-41968 an order was passed on the application, and I presume in presence of the Advocate for the applicant, and the same is to the following effect: "The application is disallowed. I have informed the counsel."
4. The case was taken up on 2-4-1968 at 11 a.m. and since the present applicant and his Advocate were absent the Commissioner proceeded with the case ex parte. The Commissioner recorded the evidence of the present respondent Jaleel Ahmed and on the same day passed an order awarding compensa--tion of Rs. 6,500.00 to the present respondent,
5. That on the next day viz. 3-4-1968 the Advocate for the Ahmedpresent applicant made an application before the Commissioner under Order IX, rule 13, C. P. C. read with section 151, C. P. C, for setting aside ex parte proceedings. This application was made in pursuance of rule 43 of the West Pakistan Workmen---s Compen--sation Rules, 1961, which rule provides for application of O. IX, rule 13, C. P. C. to proceedings before the Commissioner. Notice of this application was issued to the present respondent and the application was dismissed on the ground that no good cause had been shown for setting aside the ex parte order. This order was passed on 7-5-1968. Aggrieved by this order the applicant has filed this revision application which was presented before this Court on 5-8-1968 viz. after nearly three months of the passing of impugned order. The applicant has been represented before me by Mr. S. A. Channa, Advocate whereas the respondent was represented by Mr. Muhammad Abdul Qadir.
6. This revision application has been filed under section 115, C. P. C. and the first question that arises is whether the provisions of section 115, C. P. C. are applicable in relation to proceedings under the Act. I may also clearly state that section 30 of the Act provides for an appeal to the High Court from various orders of the Commissioner and an order awarding compensation is also appeal able. In fact this point has not, been disputed before me. The question that then falls for consideration is whether this revision application is competent.
7. Section 115, C. P. C. of the Code of Civil Procedure states as follows: "The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a' jurisdiction not rested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted In the exercise of the jurisdiction illegally or with material irregularity the High Court may made order in the case as it thinks fit."
It would be clear from the language of section 115, C. P. C. that a High Court can exercise jurisdiction only when the Court case has been decided by a Court subordinate to the High appeal lies against such a decision. So that before the provisions of section 115, C. P. C. could be attracted it has to be shown that a Commissioner is a Court subordinate to the High Court and secondly that the order passed by the Commissioner awarding compensation is not appeal able. If any of these conditions is not fulfilled the revision application must fall.
8. Tire Act in this case does not provide for a Revision. But on the other hand an appeal is clearly provided for Section 30(l)(a) of the Act reads as follows:-- "30.--(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-
(a) an order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum."
Even on a cursory reading of the above-quoted provision of the Act, it would appear that the order of the Commissioner dated 2-4-1968 whereby compensation was awarded to the respondent was an appeal able order. The other provisions of section 30 clearly provide for and state the grounds on which an appeal lies to the High Court. The same section also provides that the memorandum of appeal has to be accompanied by a certificate by the Commissioner showing that the appellant has deposited the amount payable under the order appealed against. The same section also provides that an appeal has to be filed within sixty days although the provisions of section 5 of the Limitation Act have been made applicable.
9. In the case of S. Zafar Ahmed v. Abdul Khaliq (PLD 1964 Kar. 149) a Bench of Seven Judges of the then West Pakistan High Court considered the question of the scope of section 115, C. P. C. In para. 9 of the Judgment, which para. contains the final determination of the question, it hag been clearly stated that the High Court cannot exercise powers under section 115, C. P. C. if the same matter could have been brought before it by way of an appeal.
In the present case the initial order that gave a grievance to the applicant was the one passed by the Commissioner on 2-4-1968 whereby compensation was awarded to the respondent. This order has not been appealed against and no reason has been stated as to why an appeal has not been filed.
10. However, the learned Advocate for the applicant has raised an argument before me that the Commissioner is a Court subordinate to this Court and the order that was passed by the Commissioner on the application under Order IX, rule 13, C. P. C. being not appealable, the present revision application is maintainable. He has mainly canvassed the point before me on the ground of the subordination of the Commis--sioner to this Court. He has relied on two cases, namely Mst.
Dirji v. Smt. Goalin (AIR 1942 Pat. 33) and the other case of G. D. Gianchand v. Abdul Hamid (AIR 1938 Lab. 855). In the Lahore case the workman had brought proceedings for compensation under the Act before a Senior Subordinate Judge who had been appointed as a Commissioner under the Act. The Senior Subordinate Judge awarded compensation and a Revision was preferred against the order. The preliminary objection was take n at the time of bearing of this revision application in regard to jurisdiction of the High Court and Tek Chand, J., disposed of the contention in the following words :- "After hearing the counsel I am of the opinion that this contention is without force. It is clear from sections 23 to 30-A of the Act that in adjudicating a claim of this kind the Commissioner acts judicially for several purposes. He has all the powers of a civil Court. It is also provided that the orders passed by the Commissioner in this behalf are under certain circumstances subject to appeal to the High Court. It is thus clear that the Commissioner is for these purposes 'a Court subordinate to the High Court' and in this particular case no appeal lies, the amount awarded befog below Rs. 300.01, a revision is competent under section 11 S, C. P. C. . . . . . . ."
This decision does not advance the ease of the applicant because the order that was sought to be impugned in the Lahore High Court case was not appealable. The Commissioner also does not enjoy all the powers of a civil Court. Moreover, Tekchand. J., has also made a reference to section 44 of the Punjab Courts Act which provided for subordination of the Senior Subordinate Judge to the High Court.
11. In the case of Mst. Dirji, which was decided by Agarwala and Meredith, JJ., of the Patna High Court, the Commissioner has been held to be subordinate to the High Court for the purpose of section 115, C. P. C. because the High Court exercises appellate jurisdiction qua the orders of the Commissioner. No other reason has been assigned by the learned Judges for coming to ibis conclusion. They have relied on the `are of Bat Krishna Daft v. Collector (AIR 1923 Bom. 290). In the Bombay case the question was whether a High Court can in exercise of its powers under section 115, C. P. C. direct a Collector under the Land Acquisition Act to make a reference. First of all the case relates to interpretation of the Land Acquisition Act and in this case the learned Judges of the Bombay High Court refused to exercise jurisdiction under section 115, C. P. C. In fact the learned Judges at page 299 of the report clearly stated that if the Collector falls to make a reference under the Land Acquisition Act, the High Court cannot under section 115, C. P. C. direct him to make a reference in spite of the High Court having the powers to interfere with the proceeding of the Collector under section 18 of the Land Acquisition Act.
12. It seems to me that the reasoning in AIR 1942 Pat. 33 referring to the Bombay case proceeds on a wrong interpretation of the later case.
13. Another case which though not cited at the Bar has come to my notice is a judgment of haaik, J., of the Bombay High Court in Moohan Lal v. The Fine Knitting Mills ((1959) 62 B L R 195). In this case which as already stated by me is a decision of a Single Judge, the question of the subordination of Commissioner to the High Court and consequent maintainability of a revision application was considered. The learned Judge referred to the following cases :-
(1) (1947) 51 B L R 148 (2) AIR 1942 Pat. 33
(3) AIR 1938 Lah. 855 (4) AIR 19.51 Assam 88 The learned Judge of the Bombay High Court was to a large measure impressed by the reasoning adopted in the Patna case of Mst. Dirji, in which case reliance has been placed on the earlier case reported in AIR 1923 Born. 219. The learned Judge seems to be of the view that because an appeals against an order of Commissioner lies to the High Court under section 30 of the Act, jurisdiction under section 115, C. P. C. was attracted. I am unable to agree with the proposition that merely because an appeal against a particular Tribunal lies to the High Court, a revision application will also be maintainable under section 115, C. P. C. The question is not in regard to maintainability of appeals but subordination of the Tribunal. There may be cases where an appeal lies to the High Court against the orders of a particular tribunal not subordinate to the High Court and vice versa.
13. In the case of Ariun Raulara v. Krishna Chandra (AIR 1942 Pat. 1) a Full Bench of that Court had dealt with that question. One of the members of the Full Bench was Meredith, J., who had decided the case of Mst. Dirji reported in AIR 1942 Pat.
33. The learned Judge at page 6 of this report expressed as follows :- "It is, to my mind, clear that the power of revision cannot depend on the right of appeal in the particular case. Since it is only where there is no right of appeal that the power of revision exists, at all under the provisions of section 115, C. P. C."
14. I am formidably of the view that a Court does no, become a subordinate Court merely because it is subject to an appellate jurisdiction. Several instances could be cited in support of this proposition. To quote an instance a Single Judge of the High Court cannot be considered to be a subordinate Court to a Letters Patent Appeal Bench although the appeals against the judgment of a Single Judge may be heard by a Letters Patent Appeal Bench. It is unheard of that a Letters Patent Appeal Bench could hear a revision arising out of an order of a Single Judge of the High Court.
In case of Province of Sind v. Pir Ellahi Bux (PLD 1952 Sind 34), the question of subordination of Courts as between a Single Judge of a High Court and Letters Patent Appeal Bench came up for consideration. At page 41 of this report Tayyabji, C. J., with whom Constantine, J., agreed expressed as follows :- "But here again the terms used in the section make it quite clear, I think that the power conferred was not to be exercised by one part, a bench, over another part of the same Court but by the Chief Court over Court subordinate to it. There is nothing in this section to show that the Poor could be exercised over any part of the Chief Court. Further the use of the word 'superintendence' is very significant. Let us consider the administrative powers con--ferred by this section. There can be .no doubt whatever that the power of administrating its own affairs is vested in the Chief Court, but it is quite clear that the power is not conferred by this section. When the Chief Court exercises its purely administrative, powers over the Chief Court itself, It clearly administers and does not 'superintend'. The use of the word 'superintend' necessarily implies that while the administration was to be done by the subordinate Court, the Chief Court was empowered to superintend that administration. The Courts "subject to its appellate jurisdiction" referred to in section 17 are therefore necessarily Courts subordinate to the Chief Court."
In the case of Mirza Muhammad Sadiq Ali v. Kazim Ali Khan (AIR 1935 Oudh 72), a Division Bench following an earlier decision of the same Court, reported in 99 I C 547 expressed the same opinion by stating that a Single Judge hearing and determining a suit is not a Court referred to in section 115, C. P. C. This statement clearly shows that although appeals against the Judgment of a Single Judge lie to a Division Bench, the former is not subordinate to the latter within the meaning of section 115, C. P. C.
Then there arc numerous tribunals against the judgment or decision of which an appeal or proceedings in the nature of appeal lie to the High Court. One of such Instances Is proceedings by way of section 15 of West Pakistan Urban Rent Restriction Ordinance. Under this Ordinance the original jurisdiction has to be exercised by a person appointed as Controller. Appeals against his order lie to the District Court or the High Court. The High Court deals with such appeals as Miscellaneous Appeals. . The matter had gone up to the Supreme Court in the case of Khadim Mohyuddin v. Rahmat Ali (PLD 1965 SC 459). Their Lordships of the Supreme Court had considered the question whether a Controller was a Court in spite of the functions performed by him being judicial in character. Their Lordships came to the conclusion that although the Controller performed functions judicial in character yet he was not required to act judicially in. discharge of many of his functions and therefore their Lordships expressed a doubt as to whether a Controller acting under the Ordinance was a Court at all. That being so the Controller could not be considered to be even a subordinate Court and therefore 'a Revision against the order of the Controller does not lie to the High Court.
Another instance that can be cited is in relation to revision lying to the High Court under the Land Settlement Act, 1958. Under section 20 of this Act, a revision lies to the High Court against an order of a Settlement Authority. The High Court has the power to deal with those cases as revisions. But while on the one hand the power of revision bas been specifically conferred on the High Court 012 the other the settlement Authorities could not be 0O~idefed to be Courts subordinate to the High Court within the meaning of section 115, C. P. C. It would indeed be fallacious to hold that a Settlement Commissioner becomes a subordinate Court to the High Court simply because revisions against his order lie to the High Court.
The other instance in point is in relation to the Election Tribunals set up under the National and Provincial Assemblies (Election) Ordinance X111 of 1970. Under this Ordnance an Election Tribunal has been constituted and such a tribunal has been vested with powers of a civil Court trying a suit under the Code of Civil Procedure. The Legislature has by section 64(3) of the said Ordinance provided an appeal to the High Court against a decision of the tribunal. In spite of the tribunal being armed with all the powers of a civil Court under the Code of Civil Procedure and an appeal lying to the High Court against the orders of the tribunal; could it be said that an Election Tribunal is a subordinate Court to the High Court within the meaning of section 115, C. P. C.? I am clearly of the view that such an interpretation is not possible.
Many more instances of the kind could be enumerated. It would indeed be fallacious to hold a particular tribunal to be subordinate to the High Court simply because the High Court by Special Statutes exercises appellate jurisdiction qua the decisions of the other tribunals. Even in cases where p special statute specifically confers a revisional jurisdiction on the High Court against the order of a particular tribunal, the said tribunal does not become a Court subordinate to the High Court within the meaning of section 115, C. P. C.
I5. There is still another angle of looking at this question. Article 205 of the Interim Constitution of Pakistan, 1972 gives to a High Court a power to supervise and control all Courts subordinate to it. By implication ft Iii clear that If a Court is subordinate to the High Court, It is subject to supervision and control by the High Court. The power of superintendence necessarily implies superintendence over administration of a subordinate Court. It also implies exercise of administrative powers. By no stretch of interpt7tation or imagination could a conclusion be reached that a High Court can exercise administrative powers or superintendence over a Commissioner. The High Court also has no control over the Commissioner s9ve to the extent of exercise of powers under section 30 of the Act by hearing appeals against an order of a Commissioner, but the metre authority to hear appeals cannot be considered to be the role factor for determining the question of subordination of Court.
16. Moreover, a right of appeal or revision is ganera1y a creature of the Statute; and generally, if not always, preserved its a particular Statute under which a Court or Tribunal functions. Instances should indeed be rare when a right of appeal or revision is deduced from the omnibus provisions of the general statutes. The position becomes clear by reference to the provisions of the Act itself because a right of appeal is provided in the Act itself. If the Legislature intended to preserve a right of revision in rotation to proceedings under 4narad the Act, a specific provision could have been enacted in the Hay-a Act itself. Moreover, on a cursory perusal of the provisions of section 23 to section 27 of the Act it becomes clear that provision has been made for application of some of provisions of the Civil Procedure Code and Criminal Procedure Code to proceedings under this Act.
If the Commoner were a subordinate Court to the High Court, it would not have been necessary to make such provision. Indeed section 19 - of the Act expressly bars the jurisdiction of a Civil Court to decide or deal with any question the, is to be decided or dealt with by the Commissioner under the Act. . This of course is subject to section 30 of the Act and to that provision only.
17. At this stage it becomes necessary to refer to certain observations of my learned brother Dorab Patel, J., in the case of the Divisional Superintendent, Pakistan Western Railway, Quetta v. Mian Muhammad (PLD 1971 Quetta 23). My learned brother In that case examined the question of entertaining a time-barred claim by virtue of section 5 of the Limitation Act and came to the conclusion that proceedings before the Commissioner could not be termed as suits for the purpose of limitation. My learned brother in that context expressed that Commissioner Is not even a Court. It would be profitable to reproduce a portion from his judgment. The same reads as follows:- "In making this submission the learned counsel imply that the Commissioner under the said Act was a Court, but this is contrary both to the object and to the expressed provisions of the said Act.
Thus section 19 expressly ousts the jurisdiction of the civil Court with regard to the claims under the said Act whilst section 23 empowers the Commissioner to exercise the powers of civil Court but only for certain purposes, therefore, it is clear that the Commissioner is not a Court, and a claim before him cannot be treated as a suit under the Limitation Act."
18. Although T am basing this Judgment mainly on two reasons firstly, that a revision does not lie simply because a right of appeal exists, and secondly that the Commissioner Is not a Court subordinate to the High Court within the moaning of section 115, C. P. C. I feel tempted to passingly make a reference to a judgment of A. S. Faruqui, J., in the case of Messrs Ahmed Brothers v.
Mahmood-ul-Hassan (PLD 1965 Kar. 83). The learned Judge considered the nature of proceedings before the Commis--sioner by reason of sections 4 and 5 of the Act and held that proceedings under the Act before the Commissioner were of a summary nature and for that reason the provisions of the. Evidence Act did not apply. This, too, is a valuable pointer in the matter of determination of the question whether a Commissioner acting under the Act is a Court at all.
However I would like to leave that question open for consideration at suitable time, although I hold that even if the Commissioner be consideration to be a Court, he is not a subordinate court within the moaning of section 115, C. P. C.
19. The next argument of the learned Advocate for the applicant is that if section 115, C. P. C. is held to be in applicable to the circumstances of this case ho will be loft with no remedy All I can say is that the applicant has to thank himself for it. The applicant by this revision application seeks to set at naught and avoid a final order passed by the Commissioner under section 10 of the Act. An appeal is provided against such an order, and the fact whether an order is an ex parte order or on contest will make no difference. He could have brought an appeal against the order either on the date of decision of the main case before the Commissioner or when the application to set aside the ex parte order was dismissed. In the latter case he may have had to show how the appeal was in time.In any case an appeal old lie. The present revision application has been fled after expiry of period of limitation of appeal. I am of the view that the applicant has resorted to this revision application only to circumvent the provision of the Act providing for limitation of 60 days. Moreover, tie amount, which was to be deposited before filing an appeal as provided by section 30, of tae Act was also deposited after 60 days of the order i.e. after the expiry of the period of limitation for filing an appeal. Under such circumstances I am of the view that granting a relief to the applicant will amount to putting premium on his default and lathes. The effect will be that while an appeal could be filed within 60 days and that two after the amount of compensa--tion was deposited; a revision may be filed at any time without depositing the amount and for the same relief as could be obtainable In an appeal. After all even in these proceedings the applicant has prayed for setting aside. the order of the Commissioner, an order which in my view, can only be set aside under section 30 of the Act aid on an appeal. These proceedings appear to be aimed at circumventing the provisions of section 30 of the Act.
20. In the result I hold that this revision application is not maintainable and I do hereby dismiss it with costs.