' The brief facts relevant for the consideration of this appeal are that the respondent No, 1 (hereinafter referred to as the respondent) was a permanent workman employed in the factory of the respondent No, 2 since about 19 years, and he was registered as a "secured person" within the meaning of subsection (25) of section 2 of the West Pakistan Employees' Social Security Ordinance, 1965 (hereinafter referred to as the said Ordinance). He was engaged in the work of loading and unloading of chemicals, pieces of glasses, powder for glasses, soda and stones. According to his own version, he suffered from Anthrax, which is an "occupational disease" mentioned in the Schedule to the Provincial Employee's Social Security (Occupational Diseases) Regulations, 1967, of which ailment he complained to have been euffering since 1974. The respondent No, 2 referred him to the appellant for treatment on 5-12-19/4, when a certificate in Form W-1 was issued for incapacity to work by the appellant. He was operated upon on his cheek on 16-12-1976 for chronic inflamation of the left parotid gland. In spite of the said operation he got no relief and continued reporting for treatment to the physicians of the appellant. Dr. Usman Mamsa, Senior Medical Officer, Injury Treatment Centre of the appellant by his certificates dated 3rd May 1975, confirmed that the respondent had a s welling left cheek, for which he was given treatment and was admitted in K. V. Side Hospital on 14-12-1976. The certificate goes on to say that "after operation, he complained of loss of his sight, and was in hopeless state and could not see and had to be helped for everything". As the respondent became totally blind he applied fot benefit on account of total disability to the appellant. He was granted Rs, 1,000 only by the appellant as "ex gratla payment."
Against this order, the respondent filed an appeal under section 59 of the Ordinance before the Social Security Court claiming Rs, 16,000 a; benefit on account of permanent disability. The Social Security Court recorded evidence of the parties and by order dated 23rd October 1976, directed the appellant to pay Rs, 16,000 to the respondent. This appeal has been filed challenging the said order and Mr. S. A. Sarwana, learned counsel for the appellant, raised twofold contentions. It is firstly contended that the Social Security Court erred in holding that loss of vision of the respondent on account of Glaucoma was a result of operatic n of left parotid gland which was scientifically incorrect and the judgment was against the provisions of the Ordinance. The other contention is that burden of proof fo: establishing claim lay upon the respondent, which he had failed to discharge. It may he mentioned that in the grounds of appeal there is implied presumption that the respondent lost his vision on account of Glaucoma and, therefore, in order to sustain any finding on this ground it would be necessary to examine whether or not there was any conclusive evidence on record proving loss of vision of the respondent on account of Glaucoma and also whether the respondent, according to the provisions of the Ordinance and the regulations framed thereunder, was called upon to discharge burden of proof, as commonly required in law for proving a claim and to what extent this rule is attracted in his case.
2. Mr. Abdus Samad, learned counsel for the respondent No, 1, and Mr. M. H. Kazmi, Advocate for The respondent No, 2, raised a preliminary objection with regard to the very maintainability of this appeal on the ground that lancer section 64 of the Ordinance an appeal would be competent only if any substantial question of law is involved. Section 64 of the Ordinance reads as follows "64. Appeal.-(1) Save as expressly provided in this section, no appeal shall lie from an order of a Social Security Court.
(2) An appeal shall lie to the High Court from an order of a Social Security Court if it involves a substantial question of law.
(3) The period of limitation for an appeal under this section shall be thirty days.
(4) The provisions of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), shall apply to appeals under this section."
' The learned counsel contended that an appeal under the above-mentioned section would be competent only when decision of Social Security Court involves not merely any question of law, but a "substantial question of law." In support of his contention, Mr. Abdus Samad relied upon some decisions on the interpretation of the first proviso to section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the said Act), which contained similar provision. Section 30 of the Act with its first proviso reads as under :- "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 ;
(b) an order refusing to allow redemption of a half-monthly payment a
(c) an order providing for the distribution of compensation among the dependents of a deceased workman, or diallowing any claim of a per son alleging himself to be such dependent ;
(d) an order allowing or disallowing any claim for the amount of an indemnity uncier the provisions of subsection (2) of section 12 ; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions Provided that no appeal shall lie against any orders unless a "substantial question of law is involved" in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees."
Looking to the provisions of the Ordinance, it is clear that its object is to introduce a scheme of social security for providing aenefit to certain employees or their depepdents in the event of certain calamities. The provision in section 64, therefore, limiting the scope of appeal before the High Court, is undoubtedly beneficial because the purpose of the Ordinance is to provide 4 succour and relief to the suffering and disabled workmen who may be rendered incapacitated during the course of their employment and the Legislature, therefore, deemed it necessary to secure expeditious and inexpensive relief for such destitute workmen. Accordingly, the words "substantial question of law," used in section e4, are to be given restricted interpretation, so as to advance the purpose lying behind the enactment. The law, otherwise, favours a finality in litigation and it is only upon fulfilment of the condition laid down in section 64 that a litigant would be entitled to approach the High Court by way of appeal.
3. Mr. Abdus gamed, learned counsel for the respondent No, 1, as mentioned above, only sought support from certain decisions on the interpretation of the first proviso to section 30 of the Act, as the provisions contained in the said proviso to section 30 of the Act and section 64 of the Ordinance are Para materia, in that, in both the sections the words used are "substantial question of law." He first referred to Abu Bakar Abdur Rehman & Co. v. Narayan (1) stating that the said case was on all fours to the one under consideration. The facts of that case were that a workman was scraping the cylinder of the gas engine in the employer's factory when a particle or rust entered his eye which eventually caused complete loss of sight in that eye. The Commissioner's finding regarding the loss of workman's sight, in the circumstances, which was based on evidence, was held to be a finding of fact, which could not be challenged under section 30 of the Workmen's Compensation Act, 1923. He further referred to Paresh Chandra Ganguly v. Jawahir Press, Calcutta
(2) where it was held that whether a particular disease was contracted at a time when the person (workman in printing press concerned was employed under `A' or 'la' or "C' was a pure question of fact, which cculd not be agitated in an appeal before the High Court under the said Act Another decision relied upon by the learned counsel is Cooling Equipment .Co. Ltd. v. Heist. Zainab aibi and another (3). Jr was a first appeal from a decision of the Commissioner under the Workmen's Compensation Act, which had first come before a learned Single Judge, but was referred by him to a Division Bench in view of the importance of certain points involved in the appeal. The Commissioner had found that the appellant-Company was liable to the extent of Ps 1 200 against which the Company preferred appeal. The points urged in the appeal wen-(1) that the Commissioner was wrong in finding that the petitioner was a widow of
(1) AIR 1933 Nag. 272 (2) AIR 1955 Cul. 306
(3) AIR 1943 Lab. 52 ' the deceased, (2) that the Commissioner was wrong in holding that the deceased was a "workman" within the meaning of the Act, and (3) that the Commissioner was wrong in holding that the accident by which the deceased met his death was one arising out of, and in the course of, his employment. As regards the finding that the petitioner was the widow of the deceased, it was held that on the clear finding of the Commissioner, the issue involved a pure question of fact. Another contention raised was that the proviso to section 30 of the Act did not bar the High Court from examining the finding of fact in an appeal which, otherwise, lies under section 30. The contention, in other words, was that once an appeal was admitted on a substantial question of law, the whole case was open to investigation by the High Court. This contention was repelled by the learned Division Bench on good authority and the rule laid downs was that where a question of fact is wholly independent of any question of law, the High Court in appeal was bound by the finding of fact arrived at by the Commissioner. On the basis of this rule, the learned Bench held in that case that the question whether the petitioner claimant was or was not a widow of the deceased was admittedly independent of any point of law involved in the appeal and therefore, under section 30 of the Act, the High Court was precluded from reconsideration of the Commissioner's finding on that issue. However, their Lordships Tekchand and We, JJ., held that the substantial point of law involved in the appeal was whether the petitioner was a "workman" to which the Workmen's Compensation Act applied and the judgment proceeded to examine the said issue. Further reliance was placed on Bhagwandls v. Pyarelal (1) where it was held that a question of law can be said to be a substantial question of only when there may be some doubt or difference of opinion.
Mr. Abdus Samad argued that the instant case was not one of doubt or difference of opinion, and hence the appeal was incompetent.
4. There are decisions nearer home on the interpretation of section 30 of the Workmen's Compensation Act, 1923, which however, the learned counsel did not cite. In Aftab Flour & Allied Industries Ltd. v. Mst. Maim Akhtar (2) it was held that the question whether employment was casual and whether or not for employer's trade or business was a question of fact, and not of law.
In Messrs Oodsan Ltd. v. Deva (3) the question whether in face of evidence temporary disability was proved was held to be a question of fact, and the learned Conti refused to interfere with the finding of the lower Court on the said issue. In Messrs Lever Brothers (Pak). Ltd. v. Fazal Muhammad (4) the Commissioner's determination regarding nature of or incident attaching to payment made to injured workman during the period of his convalescence was held to raise a "substantial question of law," and the appeal was held competent. In Messrs Datsun Service Station, Karachi v. Abdul Aziz
(5) it was held that the High Court cannot review finding of fact, unconnected with law, arrived at by Commissioner, and it was not open to an appellant in appeal under section 30 of the Act to agitate all questions of fact.
5. The question as to what is meant by substantial question of law in section 64 of the Ordinance has received my anxious consideration. While the decision on the issue is dependent upon facts of each case, some of the tests laid down by various Courts, as also noticed in some of the cases referred to above, are as follows.
(1) AIR 1954 Madh. Bha. 59 (2) PLD 1964 Kar. 406
(3) 9 L D 1968 Kar. 178 (4) PLD 1968 Lah. 970
6. In Rag human Prasad Singh and others v. The Deputy Commissioner of Partabgarh and others (I), the Privy Council made the following observation in their judgment "Admittedly here the decision of the Court a rimed the decision of the Court immediately below therefore, the whole question turns upon whether there is a substantial question of law. There seems to have been some doubt, at any rate in the old Court of Oudh, to which this one succeeded, as to whether a substantial question of law meant a question of general importance.
Their Lordships think it is quite clear, and indeed it was contended by Mr. De Gunther, that that is not the meaning but that the words 'substantial question of law' mean a substantial question of law as between the parties in the case involved.
' Mr. De Gruvther has really tried to show the Board that there is no substantial question of law by more or less taking up the merits of the case and showing that the decision is quite obviously right.
Their Lordships do not think that they would be quite in safety to take that view in a case which certainly occupied the Court below for a very long time and on which there is a very elaborate judgment. They therefore think that upon the face of the matter there is, as between these parties, a substantial question of law."
' The former vie w taken by the High Courts in the sub-continent had been that simply because certain question of law was involved in a case, it would not mean that it was necessarily a substantial question of law. The preponderance of the view was that a substantial question of law must be of a general and public importance and this controversy was set at rest by the above judgment. According to the above view of the Privy Counsel, a question of law would be substantial even if the same is confined to a dispute between the parties and if the same substantially affects them. This judgment of the Privy Council prevailed with the Supreme Court of India in the case of Sir Chunflal v. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd. (2). This was an appeal by special leave against the judgment of the High Court of Bombay in an appeal from the judgment of a learned Single Judge of that Court. The appellants in their suit had claimed damages for about 26 lakhs of rupees, which was dismissed by the learned Single Judge and was later affirmed in appeal by the High Court. Being aggrieved by the decision of the High Court, the appellants applied for a certificate under Article 133 (1) (a) of the Constitution. The judgment of the High Court in appeal was in affirmative of the judgment cf the learned Single Judge dismissing the suit. It was, therefore, necessary for the appellant to establish that a substantial question of law was involved in the appeal. It was contended on behalf of the appellant that the question raised concerned the interpretation to be placed en certain clauses of the managing agency agreement upon which their claim in the suit was founded, and that, as the interpretation placed by the appellate Court on those clauses was erroneous and thus deprived them of the claim to a substantial amount, the matter deserved to be certified by the High Court under Article 133 (1) (a) of the Constitution. The High Court refused to grant certificate on the interpretation of the words "substantial question of law" occurring in Article 133 (1) (h) of the Constitution, which is similar in terms as section 110, C. P. C.
(1) AIR 1927 P C 101 (2) AIR 1962 SC 1314 ' The Supreme Court was, therefore, moved under Article 136 of the Constitu tion for grant of certificate for special leave, which was granted. In the application for special leave, a specific contention was raised to the effect that the view taken by the High Court with regard to the application for certificates under Article 133 (1) (a) of the Constitution was wrong, that the appellant was entitled to appeal to the Supreme Court as a matter of right, and that while considering the appeal, this question should also be decided. It was further pointed out to their Lordships that the view taken by the Bombay High Court on the point, as to what is a substantial question of law ran contrary to the decision of the Privy Council in Raghunath Prasad Singh's case, and the decisions of some other High Courts in India and, therefore, it was desirable that tie Supreme Court should pronounce upon the question in appeal and set the matter at rest. The Supreme Court, upon review of various cases on the point in issue, observed as under "(6) We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpar is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantial), affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
7. The tests for the determination as to what a substantial question of law in a given case would mean may be laid down as follows :-
(1) That the question of fact should not be wholly independent of any question of law ;
(2) There should become doubt or difference of opinion on a question of law ;
(3) A question of law does not mean a question of general importance and means a substantial question of law as between the parties in the case involved ; and
(4) Whether the question is of general public importance, and whether it directly and substantially affects the rights of the parties, and if so whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or is not free from difficulty or calls for discussion on alternative views.
8. Now coming to the facts of this appeal, the appeal was admitted, inter alia, for consideration of the contention "that respondent No, 1 suffered from Glaucoma, which is not covered by the West Pakistan Employees' Security Ordinance, 1965" and which was stated to be "neither an Occupational Disease nor an employment Injury." The said contention is same, although differently worded, as noticed hereinabove according to the contention raised by Mr. S. A. Sir wane. The other contention is with regard to the burden of proof which, allegedly, the respondent failed to discharge in proving his entitlement for the claim under the Ordinance. In the light of the facts set out hereinabove, the appeal toes raise substantial questions of law and the preliminary objection raised by the learned counsel for the respondents has, therefore, no force.
9. The benefits available under the provisions of the Ordinance as con. Tamed in Chapter V, are provided in sections 35 to 39, which are sickness benefits, maternity benefits, death grant, medical care during sickness and and maternity, and injury benefits. The "employment injury" is defined under subsection (10) of section 2 of the Ordinance as follows" 'employment injury' means a personal injury to a secured person caused by an accident or by such occupational disease as may be specified in the regulations, arising out of and in the course of his employment ;"
The term "Occupational Disease" has not been independently defined under the Ordinance but under Regulation 3 of the Provincial Employees' Social Security (Occupational Diseases)
Regulations, 1967, framed in exercise of the power conferred by section 30 of the Ordinance it is laid down that "the occupational diseases which may cause an employment injury within the definition contained in section 2 (10) of the Ordinance, shall be the diseases in column (1) of the attached Schedule". Now in this case the question which falls for determination is whether the respondent No, 1 suffered any "employment injury" as defined in the Ordinance read with the above g Regulation. The respondent No, 1 did not suffer any injury on account of any accident, and he would be entitled to benefits under the Ordinance, if his case is covered by the definition of "employment injury", which includes an 'occupational disease' specified in the Schedule to the Regulation referred to above. The Provincial Employees' Social Security (Occupational Diseases Regulations, 1967, only Prescribes three diseases under its Schedule, which are (1) Anthrax, (2) Twister's cramp, and (3) By ssinesis, and Glaucoma is not one of the diseases mentioned in the Schedule. But, as mentioned earlier in this judgment for the determination of this question a finding is necessary whether or not the respondent suffered from Glaucoma which fact must be established from the record in order to disentitle the respondent of his claim. The findings of the Social Security Court on the issue are vague. After reference to evidence, the learned Social Security Court held that although the respondent had been in continuous treatment in the hands of the doctors of the Institution, yet he was left untreated till he was diagnosed of Galucoma. It has further been held that the respondent was not advised to undergo operation of Glaucoma at the early stage and, therefore, the doctors of the Institution were responsible for total loss of the vision of the respondent, and that the said disease occurred exactly in the course of employment with the respondent No,
2. The Social Security Court, on these findings, awarded a sum of Rs, 16,000 to the respondent towards his claim. The learned counsel for the parties have taken me through entire evidence on record and there is no legal and satisfactory evidence in support of the finding of the learned Social Security Court that the respondent suffered from Glaucoma. According to tte pleading of the respondent, he suffered from Anthrax since F the year 1974, and he had complained of the same to the respondent No, 2, who in turn directed him for treatment to the appellant. He further pleaded that he also suffered from Glaucoma "as certified by the Eye-Specialist".
10. The evidence in this case consists of the deposition of the respondent himself, who in his statement stated that he was admitted in K. V. SITE Hospital in December 1974, and was operated upon his left cheek under the ear. He stated that he was discharged on 11-1-1975. He denied the suggestion that he complained of weakness of eye-sight after four or five months of the operation and volunteered to state that he complained of the same immediately after the operation. The respondent No, 2 examined one witness, Mr. M. Thous Mohiuddin stated that the respondent was operated for left cheek swelling. He produced a certificate issued by the Social Security Institution in Form M-I dated 5-12-1974, and a bunch of certificates Exhs, R. W. 2/B-1 to 49 issued in Form M-2.
He stated that no fitness certificate in Form M-3 was issued to the respondent. He produced photostat copy of a certificate dated 3rd May 1975 by Dr. Usman Mamsa, Senior Medical Officer of the Institution, Exh. R. W. 2/C, which was admitted in evidence in spite of objection on furnishing of explanation that the original had been handed over to the Institution at the time of the payment of Rs, 1,000 to the respondent. He produced photostat copy of another certificate dated 29-7-1975, Exh. R. W. 2/D issued by Dr. Ata-ur-Rehman, Openthanlmic Surgeon, which too was admitted on the basis of similar explanation given by this witness. The appellants in their turn examined one Abdur Rashid, a Social Security Officer of the Institution. He stated that the appellant was operated upon his cheek and was first diagnosed for Segaceous. He was discharged on 11-1-1975. In May 1975, he complained of his eyesight and, therefore, was examined by the Senior Medical Officer of the appellant on 3-5-1975. He admitted that certificate Exh, R. W. 2/9 was borne on record (earlier objected to for admission by the learned counsel for the Institution). He produced copy of the comments furnished by the Surgeon of the Institution, Dr, Haziqul Yaqin, dated 23.7-1975 alongwith covering letter Exh. R. W. 3/C. According to the said comments, the respondent suffered from inflammation of the left parotid gland. It was further stated that he was operated upon on 16-12- 1975 and the operation was satisfactory and he was discharged on 11-1-1975. According to this Surgeon, he did not think that the operation 'would cause any damage to the eye'. The other witness examined by the Institution was one Dr. Mohd. Zaheer. He was shown the certificates Exh. R.
W. 2/C and Exh. R. W. 2/D, which he stated to have been issued by the doctors of the institution. He identified the signature of Dr. Usman Mamsa, and thus the fact regarding issuance of these certificates was pro' el by this witness. He also a limed the fact regarding issuance of the certificate by Dr. Haziqul Yaqin Exh. R. W. 3/C. He stated that Glaucoma was never caused due to any operation on any part of the body and was a chronic disease, the causes of which were not known.
He admitted that he bad not examined the respondent for his illness and therefore his testimony is of no use. It is unfortunate that Dr. Usman Mamsa, Dr. Ata-ur-Rehman and Dr. Haziqul Yaqin, the persons who issued the certificates Exhs. R, W. 2/C, R. W. 2/D and R. W. 3/C were not examined and, as such, the same have no evidentiary value in the eye of law. Accordingly, there is no escape from the finding that the exact ailment of the respondent remained unproved. In view of the evidence on the record, therefore, the finding of the learned Social Security Court that the respondent suffered from Glaucoma is without any foundation.
11. The second contention of the learned counsel for the appellant that the respondent had failed to prove his claim by discharging the onus placed upon him under the Ordinance, requires consideration. It is true that the respondent did plead that he suffered from 'Anthrax' and also from Glaucoma, but mere such assertion has no legal foundation because the respondent, who is a layman, is in the least supposed to know the names of the diseases and is presumed to have used certain medical names of the diseases which are too technical to be understood by a common man on such advice as he may have received from the person who drafted his petition. The nature of disease has got to be proved by medical evidence, and, as found above, even the appellant remained contended by producing medical certificates and comments from their medical consultants which remained unproved because none of these consultants were examined as witnesses to prove the contents of the certificates and opinion furnished by them. In order to further appreciate the nature of the burden of proof, which a claimant may be required to discharge, it is necessary to examine the entire scheme of the Ordinance and the Regulations framed thereunder.
12. By section 20 of the Ordinance, every employer is required to pay to the Institution a contribution at such times and at such rates and subject to such conditions as may be prescribed. This payment is to be made for the purpose of the implementation of the scheme under the Social Security Ordinance for the benefit of the employees. The Institution has to maintain an Employees'
Social Security Fund. It is out of this fund that the employees are to be paid benefits enumerated in Chapter V of the Ordinance. A 'secured person', as defined under subsection (25) of section 2 of the Ordinance, is a person in respect of whom contributions are or were payable under the Ordinance.
Such a person is entitled to the various benefits mentioned in Chapter V of the Ordinance. The Provincial Employees' Social Security (Benefit) Regulation, 1967 provides for medical care to a secured person and/ or his dependents whenever he or they suffer from any morbid conditions.
Regulation 15 of the Benefit Regulation provides that a secured person desiring to claim sickness benefit shall obtain from his employer a certificate referred to in Regulation 14 and shall take it to the dispensary to which he has been allotted for the issue of a medical certificate of incapacity described as first certificate (Form M-I), containing on the reverse of the certificate a claim form for sickness benefit. The secured person then has to take this certificate, referred to in Regulation 14, along with Form and his registration card and deposit the same at the local office of the Institution, whereupon, as required under Regulation 16, he has to continue to attend the medical practitioner as long as he is directed to do so and shall obey any instructions that he is given regarding behavior and diet. Under clause (2) of Regulation 16, the medical practitioner has to issue "intermediate' Medical Certificate (Form M-2) in respect of any examination after the first, and until the recovery of the secured person permits him to return to work either at once or within three days of the date of the examination, in which case, he shall issue a "Final Certificate" (Form M-3).
Regulation 21 provides for the payment of 'disablement pensions' and 'disablement gratuities"
Accordingly, once the employer refers a 'secured person' to the care of the. Institution, it becomes the responsibility of the medical practitioners of the institution to look after him and provide necessary treatment to him and, by virtue of clause (1) of the aforesaid Regulation 16, the secured person is in law bound to attend the medical practitioner as long as he i9 directed to do so, and obey all instructions that he is given regarding behaviour and diet. The matters regarding the diagnosis and treatment, therefore, become the facts within the personal knowledge of the medical practitioners of the Institution. The qualification of medical advisers. Who may be appointed by the Institution, is laid down under the Provincial Employees' Social Security (Medical Advisers' Qualifications) Rules, 1966. The duties and functions of the medical advisers so appointed under the Rules are specified in yet another Regulation known as Provincial Employees' Social Security (Medical Practitioners and Medical Boards Appointment and Functions) Regulations Iff 1967. A medical practitioner under Regulation 8 of the Provincial!
9 Employees' Social Security (Medical Practitioners and Medical Boards Appointment and Functions) Regulations, 1967 is, after examining a secured person, required to 'furnish to him a certificate identifying the cause of such incapacity by its corresponding code number as shown in the List of Causes of Morbidity set out in the First Schedule to these Regulations, on the appropriate form supplied by the Institution". It is an admitted position that no such certificate was issued to the respondent, and in that there is clear violation of this Regulation. This Regulation also provides answer to the contention regarding the question of burden of proof as clearly the burden of identifying a disease surely lies upon the practitioner concerned, and not the secured person. I am, therefore, of the view that no burden in the facts of the instant case lay upon the respondent to identify the cause of his blindness, and he is not to suffer on account of the negligence or carelessness of the medical practitioners employed by the Institution who in law are bound to examine a secured person and identify cause of the decease. Th!s Regulation 8 his several sub- clauses which in detail lay down the duties and functions of the medical practitioners employed by the Institution, and no evidence has been produced that all that the provisions contained in this Regulation 8 were duly complied with by the medical practitioners.
13. In this case, the respondent had applied for disablement benefits which could be only in the shape of disablement pension or disablement gratuity as admissible under sections 40 and 41 of the Ordinance and it was, therefore, necessary for the Institution to refer the case of the respondent to Medical Board for its determination, as required under Regulation 21 of the I Provincial Employees' Social Security (Benefit) Regulations, 1967. The degree of disablement could be determined by the Medical Board only as provided under Regulation 22 of the said Regulation.
Admittedly no such procedure was followed and adopted by the appellant, and there has been violation of these clear statutory provisions of the Regulation.
14. The learned Social Security Court held that the 'doctors of the Institution were quite responsible for the total loss of vision of the appellant by not providing him proper guidance and treatment, whereby the respondent lost total vision while he was in the employment of the respondent No, 2 as a 'secured person'. This finding is not altogether devoid of any substance but unfortunately under the provisions of the Ordinance the respondent cannot succeed on this ground in the absence of any provision contained in the Ordinance, though his remedy may lie elsewhere. The learned counsel for the appellants, Mr. S. A. Sarwana, contended that there is no provision in the Ordinance for allowing a lump sum payment as has been granted in this case by the learned Social Security Court. The learned counsel for the respondent frankly conceded that legally it is so and the finding of the Court below, therefore, cannot be sustained for allowing lump sum payment of Rs, 16,000 for the said reason. The relevant provisions of the Ordinance g applicable are by way of injury benefits and disablement pension as provided in sections 39 and 40 of the Ordinance. If the finding was that the respondent suffered from "disablement" as defined in clause (7) of section 2 of the Ordinance, the degree of such disablement was required to be determined by a Medical Board as provided under Regulation 22 of the Provincial Employees' Social Security (Benefits)
Regulations, 1967, which procedure has not been followed.
15. In the context of the above findings, a very unfortunate situation has arisen in this case. The respondent has admittedly been rendered', destitute having totally lost his sight In both the eyes and his claim is bonne delayed for no fault on his part. The Ordinance unfortunately does not contain enough provisions for dealing with such situations and in spite of the hardship involved in the case I find myself helpless in granting any relief to the respondent. The scope of relief is otherwise very much narrow on account of the definition of the words "disablement" and "employment injury" contained in clauses (7) and (10) of section 2 of the Ordinance read with the Schedule attached to the Provincial Employees' Social Security (Occupational Diseases)
Regulation, 1967.
16. In the result, the appeal is allowed, and the order dated 23.10-1976 passed by the Social Security Court as also the order dated 23-1-1976 passed by the Commissioner of the appellant are set aside and the appellants are directed to consider and decide the claim of the respondent within two months in accordance with law. It may, however, be mentioned that since the proceedings have already been protracted for no fault on the part of the respondent, it would be advisable and fair that the appellant may consider the case of the respondent on sympathetic and humane considerations and, if permissible in law, allow him disablement pension without recourse to any dilatory procedural formalities.
17. As the decision in this appeal turns upon consideration of substantial questions of law involved in the case, there will be no order as to costs.