DECISION This is an appeal under section 30 of the Workmen's Compensation Act .against the order of the Commissioner allowing compensation to respondent No. 1, Mustafa. ,
2. The respondent was in the employment of the appellant and on 4-5-1973 he sustained injury while working on the machine operated for the business of the appellant. He was taken to Jinnah Hospital and thereafter in the Anklesaria Hospital where he was treated at the cost of the appellant. After 22 days of treatment the respondent left for his native place.
3. On 17-8-1973 Mr. Kohistani, who was the General Secretary of the Union sent a notice dated 6th July 1973 claiming compensation on behalf of respondent. This was followed by another notice dated 17-8-1973. Subsequently the claim for compensation was filed on 8th September, 1973. The claim was resisted and various pleas were taken.
4. On the basis of the pleadings issues were framed. The respondent examined himself as well as co-worker Zareen and Dr. Irshad Waheed while no evidence was tendered on behalf of the appellant. On the assessm ent of the evidence the learned Commissioner awarded the compensation. Aggrieved by this, the present appeal had been filed.
5. Before dealing with the plea taken before me it may be pointed out that some cases were filed between the appellant and workmen, including the respondent and one of them was a complaint filed by the appellant against the respondent and others before the National Industrial Relations Commission. During the course of those proceedings a settlement was reached and the cases pending between the parties were ordered to be withdrawn by order dated 15-1-1975 by the Chairman of the Industrial Relations Commission. It seems that on account of this order the appellant did not appear before the Commissioner and, therefore, the claim for compensation was decided on the basis of the evidence tendered by respondent No. 1.
6. Turning to the plea taken before me it has been urged on behalf of the appellant that in view of the aforesaid order passed by the Chairman of the Industrial Relations Commission, the claim for compensation could not be allowed as it was agreed that the claim would be withdrawn. This order reads as under:-- 'Sirajuddin Paracha (complainant) says that after he filed the application before the Commission he has not been harassed by the respondents. As against this, Saiful Malook Kohistani who is General Secretary of the Union and is B.
Com and appears to be intelligent has given me assurance on his behalf and on behalf of the other respondents who have gone to Swat side after the earthquake, that no untoward incident would happen in future and that he would do his best to restore cordial relations. Both the parties have agreed to withdraw cases pending against each other from the various Courts. Briefly stated, they have agreed to close the chapter for good. Mr. Abdul Majid Khan, Legal Representative for the respondents has also assured me on behalf of Saiful Malook Kohistani and others that no untoward incident would happen in future. As the relations between the parties since the filing of the complaint before the Commission are cordial, and thereafter the respondents have been behaving properly, I consider it expedient in the interest of justice to file this application. Needless to add that Mr. Kohistani has undertaken to withdraw all the cases pending before the Junior Labour Courts/Senior Labour Courts and Workmen Compensation Commissioner. Similarly the applicant has undertaken to withdraw cases filed by him under section 500, P. P. C. etc. In short, all the cases against each other in various Courts shall be withdrawn by both the parties. In these circumstances, the complainant has rightly conceded to withdraw the complaint. I accede to bis request. The complaint is dismissed as having been withdrawn. Papers are consigned to record.
Sd/ (Abdul Hamid Malik) Chairman 15-1-1975 7. The bare reading of the order supports the contention raised on behalf of the appellant. The respondent was a party to that case and, therefore, any order passed therein is binding upon him. The case under the Workmen's Compensation Act was one of the cases to be withdrawn. Admittedly this was the only case pending for compensation relating to injury sustained by the respondent.
8. It was, however, urged on behalf of the respondent that the undertaking was given by Mr. Kohistani and not by the respondent who was in Swat at that time and, therefore, it could not be said that the respondent had agreed to withdraw his claim. It was further urged that the agreement was void in view of the provisions of section 17 of the Workmen's Compensation Act.
9. Indeed, it is correct that the respondent was not present when the order was passed but it is to be presumed that the learned Chairman of N. I. R. C. must have ascertained that Mr. Kohistani has been authorised by the respondent to enter into compromise. Nothing has been suggested to rebut the presumption.
Furthermore the presumption finds support from the material on record. From the record to which I will presently refer Mr. Kohistani was the General Secretary of the Union. The first notice of claim dated 6-7-1973 was sent by Mr. Kohistanti for awarding compensation to the respondent. Since no attention was paid another notice dated 17-8-1973 was also sent by Mr. Kohistani. Neither of these notices was thumb-marked or signed by the respondent. It is, therefore, plain enough that Mr. Kohistani was agitating and pursuing the claim, on beha'f of the respondent Not only this but by a document dated 31-8-1973 the respondent had appointed Mr. Aliana and Mr. Kohistani as his Representatives authorising them to appear, act, represent, plead and compromise on his behalf and do all other things as his Representatives. This authority was never cancelled. Even the claim application dated 8-9-1973 filed before the Commissioner was countersigned by one of the Representatives. Apart from the undertaking it was ordered by the Commission in the second paragraph of the order that all cases against each other in various Courts shall be withdrawn by both the parties. So a clear and unambiguous direction was given and it had to be complied with or else efforts should have been made to get the order cancelled or modified but no attempt was made by the respondent by approaching the Commission to assail the authority of Mr. Kohistani to enter into any such compromise or the legality of the compromise affecting his claim for compensation. Consequently so long as the order of the Commission holds the field it has to be enforced and claim for compensation cannot be allowed. In view of the above order the consideration of section 17 of the Workmen's Compensation Act is irrelevant.
10. In the end, it is to be noted that it was on the basis of the undertaking that the complaiat filed by the appellant against the respondents and others was withdrawn. In this situation respondent caanot be permitted to resile from the undertaking given on his behalf by Mr. Kohistani under the authority delegated to him as already indicated. After the order of the Commission, the appellant did not consider it necessary to take interest and so did not appear before the Commissioner to pursue his defence. In fact the respondent, by pressing his claim, committed fraud upon the appellant as well as the Courts. The proper course for the respondent before pressing his claim for compensation, was to have approached N. I. R. C. for cancllation or modification of the order relating to his compensation. He did not avail of that remedy.
11. In the circumstances, the appeal is allowed and the order of the Commissioner is set aside, with the result the claim for compensation is dismissed.