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(a) Workmen's Compensation Act (VIII of 1923)-

- - Ss. 23 & 30, West Pakistan Workmen's Compensation Rules, 1961 rr. 21 & 43-Civil Procedure Code (V of 1908), Ss. 107 & 117 read with O. LXI, r. 14 and O. XLI-Additional evidence-Remand-Appel late Court, power of-Commissioner as well as High Court, on appeal, have power to summon witnesses and records not produced by parties, if such evidence necessary for correct decision of case-High Court could as well remand case for further inquiry.

The sum and substance of rule 43 of West Pakistan Workmen's Compensation Rules, 1961 is that in so far as the proceeding is concerned the Commissioner has been allowed wide discretion in the matter subject of course to only one condition that no procedure shall- be permitted which acts in aid of injustice. If as provided in section 117- the provisions of the Civil Procedure Code apply to the High Court then under Order XLI thereof it has sufficient power to either remand the case for retrial or to record or direct recording of additional evidence. For the same reason, under section 107, C. P. C., it has also the power to do what the Court of original jurisdiction (here the Commissioner) could do. As there are no restricting limitations, in so far as the Civil Procedure Code as applicable to the proceed ings before the Commissioner is concerned, the irresistible conclusion from the above discussion would follow that the Commissioner has the power to summon the witnesses and records (not produced by the parties) which might be otherwise necessary for the correct decision of the case. This porker is deducible even in formal turns from provisions contained in Order LXI, rule 14, C. P. C. read with rule 43 of the 1961 Rules, with particular emphasis on provisos (a) and (b) thereto. Even on the strict interpretation of the provisions of the Act and the Rules made there under and the C. P. C., the Commissioner has the power to summon Court witnesses technically so-called and other evidence including documents which the parties might have admitted or might not have liked to produce before him. The High Court also has the power on the same reasoning as also on the basis of special pro visions conferring such powers contained in sections 107 and 117, C. P. C., either to admit such evidence in appeal and/or to remand the case for further enquiry including the taking of additional evidence.

Mir Muhammad Akbar Khan v. Mst. Motal and others P L D 1947 P C 322; Parsotim Thakur and others v. Lai Mohar Thakur arid others A I R 1931

P C 143; Jitam Dosadh and another v. Jawahir Singh and others A I R 1925 Pat. 504; Commissioner of Income-tax v. E. M. Chattyar Firm A I R 1930 Rang. 4; Secretary of State for India v. Maharaja Birendra Kishore Manikya and others A I R 1916 P C 141; Mt. Sabitri Thakurain v. Savi and another -A I R 1921 P C 80; Chakrapani Jagannath Prasad Shukla v. Chandoo Sahadeo Satnami and another A I R 1959 Madh. Pra. 81 and Kossowgi Issur v. Great Indian Peninsula Railway Co. I L R 31 Bom. 381 ref.

(b) Workmen's Compensation Act (VIII of 1923)-

Ss. 17, 19 & 23 read with Preamble and Constitution of Pakistan (1973), Art. 3-Saving of workmen from rigours of regular trials in torts before civil Courts-Underlying spirit of entire enactment (VIII of 1923)-Act ensures easy trials and proceedings to workman-Advantage of procedure under Act-Cannot be diluted by limitations applicable to normal trials before civil Courts-Functionaries under Act-Duty bound to do certain things without any initiative on workman's or his heir's part-Making of suo motu probes to do full justice to bene ficiary-Proceedings at some stage, however, become inquisitorial

Inquisitorial powers though not to be exercised in aid of injustice, admission of additional evidence, contributing to correct decision of case, cannot, however, be treated as advancing aims other than of justice.

The preamble of the Workmen's Compensation Act provides that it was enacted to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. The underlying spirit of the entire enactment is that the workmen should, in so far as it is possible and subject to the provisions contained therein, be saved of the rigours of regular trials before civil Courts in torts. It can be easily visualized that the workman has the advantage of easy trial and proceedings under the Workmen's Compensation Act with the disadvantage of formally fixed com pensations. On the other band, if he goes before a civil Court in ordinary trial he might have the advantage of seeking and getting more compensation but also the disadvantage of the normal regular trial of a civil suit which might take much more expense and longer time and difficult arduous journey to the end with possibility of innumerable pitfalls. The advantage qua the, procedure under the Workmen's Compensation Act cannot be diluted by the limitations which are applicable to the normal trials before civil Courts nor by any other artificial limitations. There is another principle which underlies the provisions of the Workmen's Compensation Act. It is the duty of the functionaries thereunder as also the employers to do certain things without any initiative on the part of a workman or the heirs of a deceased workman. There are so many obvious provisions-some of them recently introduced in this behalf the details of which it is not necessary to give in this discussion. The Commissioner has to act suo motu in more than one fields where the question of compensation to the workman is involved. To crown all this, section 17 specifically -provides in no uncertain terms and it has not been left to the interpretation through precedent law, that any contract or agreement whether made before or after the commencement of the Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employ ment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act. Even if the beneficiary is negligent or makes any concessions to,the other party who is under a liability under such an enactment, the Tribunal shall act suq mots to enforce protection to the beneficiary and while doing so, it cannot be imagined that he shall have no suo motu powers to hold enquiries and receive evidence so as to apply the protections. In this context therefore, the proceedings before the Commissioner at some stages do become inquisitorial when it is his duty to make suo mutu probes so as to see that full justice is done to the beneficiary of course to the extent the beneficial law (here the Workmen's Compensation Act) provides to him. Even while exercising such inquisitorial powers the Commissioner shall not exercise them in aid of injus tice to any of the parties yet admission of additional evidence which might contribute to the correct decision of the case, regardless of the failure of one or the other party to produce it, cannot be treated as advancing the aims other than of justice.

E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 and Khadim Mohy ud-Din and another v. Ch. Rahmat All Nagra and another P L D 1965 3 C 459 ref.

(a) Workmen's Compensation Act (VIII of 1923)-

-- Not a penal statute as against employers-Act merely lays down duties and liabilities of one citizen to other citizen-Interpretation of statutes-Interpretation of Act to be beneficial to workman-[Bombay Burmah Trading Corporation Ltd. v. Ma. E. Nan A I R 1937 Rang. 45 and In re: Maung Kyan A I R 1931 Rang. 173 dissented from].

The interpretation beneficial to the workman is so far as it does not violate the language used in the enactment has now to be adopted. The interests of the beneficiaries thereunder have to be safeguarded and it is no more possible to hold that it is a penal statute in so tai as the employers are concerned. In view of the same background of spirit and principle it is not even a quasi-penal statute. , It lays down the duties and liabilities of one citizen in the position of an employer towards the other citizen who is his workman. There is no question of exacting a penalty from the employer. The spirit of the Constitution and the law enjoins upon the employer to fulfil his obligations under, in accordance with and subject to this law, not as a penalty but as an ordinary duty and obligation towards the workmen.

Bombay-Burmah Trading Corporation Ltd. v. Ma. E. Nan A I R 1937 Rang. 45 and In re: Maung Kyan A I R 1931 Rang. 173 dissented from.

Chilu Kahar v. Burn & Co. Ltd., Howrah A I R 1953 Cal. 516 ref. (d) Workmen's Compensation Act (VIII of 1923)-

-.- S. 30-.Appeal-Substantial question of law-Powers and duties of, and procedure to be adopted by, Commissioner-Whether Commis sioner had not duty to admit evidence located even by cursory reading of record-Ignoring vital evidence on record-All such matters, held involved substantial questions of law-Commissioner ignoring material brought before him and failing to summon important witnesses and documents, order being not sustainable in law, held, could be set aside on appeal - Case remanded for further inquiry and admission of additional evidence.

Masood Sadiq Mirza for Appellant.

Raja Muhammad Muzaffar for Respondent No. 1.

S. Kamal Mastafa Bokhard, A. A: G. (I) for Respondents Nos. 2 and 3.

Dates of hearing: 16th, 17th, 23rd and 27th May 1974.

This is an appeal under section 30 of the Workmen's Compensation Act, 1923, by the widow of Zulfiqar Hussain deceased calling in question the order of Commissioner Workmen's Compensation, whereby the claim for compen sation of the appellant was disallowed on the ground that she was not able to prove that the deceased was employed as a bearer of Abdul Rashid (respondent No. 1), a catering contractor of the Railway (respondents Nos. 2 and 3).

2. On the pleadings of the parties, following issues were framed:

"(1) Whether Zulfiqar Hussain deceased was not in the employment of the defendants nor he had ever worked as bearer in the management of the respondents

(2) Whether Zulfiqar Hussain was a workman as defined under the Workmen's Compensation Act, 1923

(3) Whether the plaintiff was bound to send a Notice under section 10 of the Workmen's Compensation Act, 1923 to the defendant before the institution of the claim

(4) Whether the alleged accident of the deceased took place in the course of his employment with the defendants

(5) Whether the plaintiff has any cause of action against the defendants

(6) Whether it was necessary to give details of the injuries sustained by the deceased, if not,

what is its effect

(7) Whether the deceased was drawing Rs. 300 p. m. towards his salary from the defendants

(8) Relief."

As issue No. 1 was decided against the appellant, most of the other issues in reality became

inconsequential.

3. Learned counsel for the appellant pointed out in the very beginning that some of the vital material brought on the record before the Commissioner and/or brought to his notice otherwise, was ignored or not pursued to its logical ends; therefore, the question as to whether Zulfiqar Hussain was employed by respondent No. 1 as a bearer has not been correctly decided. It appears that soon after the accident resulting in the death of Zulfiqar Hussain the police took regular and formal proceedings and conducted an investigation under the Criminal Procedure Code, They immediately prepared the inquest report and recorded the statements of some persons including the Guard Incharge of the train concerned and the manager of the alleged employer (respondent No. 1). In column No. 5 of the inquest report (Exh. 93/1) which relates to the particulars of the deceased, it is clearly mentioned that the deceased was working as bearer of the Refreshment Room at Sahiwal the contract for which admittedly was with respondent No. 1. The Guard Incharge as also the manager of the respondent No. 1 specifically, without any reservations, described the . deceased as a bearer of respondent No. 1. In column No. 1 on page 2 of the inquest report, item No. 3 relating to the wearing apparel of the deceased, is " ". This Salooka the deceased was wearing at the fame of accident in addition to items No. 1 and 2, namely, a shirt and a Shalwar. It further shows that at the relevant time the deceased was wearing a jacket which is normally worm by the boarers. Though it is not clear yet it appears-from Exh. P/4, that a concession ticket was produced from the side of the appellant, to show that it was given by the respondent No. 1 to the deceased. It is a travelling con cession pass issued by the Railway in favour of Abdur Rashid (respondent No. 1) as contractor of the P. W. R. for use of his servants. It is not denied that such concession tickets are utilised by the bearers when serving in the trains in performance of their duties for the contractor. Apart from the above items, there is yet another item which has been dealt with by the learned Commissioner in the impugned order, namely, that the Guard Incharge in his report of accident (Exh. P/1) had also described the deceased as a bearer. No doubt the number of the bearers given in the report of the Guard is 238 and considerable stress has been laid in the impugned order that this number was allotted to another person, namely, Muhammad Ali, but a careful scrutiny of the statement of Muhammad Ali who himself appeared as a witness would show that he was not working as bearer for respondent No. 1 at the time of accident. Be that as it may, it is an admitted position that the learned Commissioner has ignored the exhibited documents, namely, P/3-inquest report and P/4-the concession ticket which indicated that the deceased was working as a bearer. It may be mentioned here that it is not the respondent's case that the concession pass (Exh. P/4) which was to be availed of by one of his servants, was in fact availed of by some one also than the deceased. Thus, this documentary piece of evidence, it cannot-be said, is irrelevant in the case. Apart from the above specific items brought on record the police file before the Commissioner showed that one of the persons who appeared before the police soon after the accident was no less important witness. He was the manager of respondent No. 1. The file was before the Commissioner and there was nothing in substantive law or procedure to prevent him from examining the manager with reference to his. previous statement made before the police. This might have clinched the controversy contained in issue No. 1. It is interesting to note that Nazir Hussain Shah, the manager, had signed the statement made before the police, presumably, because the pro ceedings were in the nature of an inquest. Such a signed statement could be put to Nazir Hussain Shah by summoning him to appear as a witness and when confronted, he might have come out with the truth. The police offer who conducted the inquest was also an important witness. He had taken into possession the wearing apparel of the deceased including the aforementioned Saluka. He could furnish more information with regard to the circumstances under which the deceased met the accident by striking against a pole while traveling in a fast running train and then fell out of it. The proceedings during the inquest report show that he was working as a bearer, had served meals to passengers in the train and was taking the tray (utensils) along with other bearers when, while standing in the door probably with the tray in his hands, looked out and struck against a pole. The Guard Incharge had administered the first aid. The train was brought to stop by some passengers who were traveling in the second class. If the police officer would have been summoned by the Commissioner, he would have given more details in consequence whereof more important relevant witnesses and material could be summoned before the Court. While doing so, it is not out of place to visualise that the Commissioner might also have summoned the records of respondent No. 1 with regard to his servants and employees which he presumably was bound to maintain under various laws. Had it been done, it is not denied the possibility cannot be excluded that the results and decision on issue No. 1 might have been different.

4. When during the arguments the above position emerged and it was greed that proper and due enquiry has not been held in this case-moreover important evidence has been ignored, the question arose whether this Court, in exercise of its appellate jurisdiction under section 30 of the Act, has power to remand the case to the Commissioner for further enquiry and fresh decision. Both the learned counsel for the respondent No. I and the learned Assistant Advocate-General, who represented the Railway (respondents Nos. 2 and 3), objected to a remand order on legal grounds. Learned Assistant Advocate-General, while agreeing that this Court has the same power as the Commissioner in so far as the recording of evidence is concerned, was of the opinion that though this Court can summon Court witnesses the Commissioner has no such power and because appeal is in continuation of the trial proceed ings, therefore, if the Commissioner could not summon Court witnesses, the High Court also could not do the same. In the alternative he took the position that if the High Court is competent to take additional evidence or to direct the same to be recorded by the Commissioner it cannot and should not be done because the Workmen's Compensation Act is a quasi-penal statute and relying on the Commentaries on this law by Ch. Altaf Hussain (1966 Edn.) on section 1 of the Act, he thought that "the provisions of the Act ought not to receive a benevolent or a strained interpretation in the interest of those who are made beneficiaries there under." He also thought that the powers with refusal to admission of additional evidence cannot be used to fill up the omissions and in any case are to be used sparingly. In this behalf, he relied on several rulings including Mir Muhammad Akbar Khan v. Mst. Motai and others (P L D 1947 P C 322) and Parsotim Thakur and others v. Lal Mohar Thakur and others (A I R 1931 P C 143). He expressed the view that if a party in proceedings under the Workmen's Compensation Act has been negligent in the production of the evidence the Commissioner or, for that matter, the High Court in appeal cannot help it. Lastly, he argued that section 30 of the Act empowers the High Court to allow an appeal only on substantial questions of law and because in this case both the parties led evidence, it would not be a substan tial question of law if it is held that one of them for any reason failed to produce the evidence which was necessary for proving its case. In the end, he suggested that in case his arguments did not find favour with the Court then either the additional evidence be recorded in that High Court or the case be remitted to the Commissioner for recording the additional evidence and resubmission (of the case) to the High Court for decision in appeal. According to the learned counsel for respondent No. 1, however the High Court has inherent power as appellate Court either itself to record additional evidence or to get it recorded by a subordinate Court. In this behalf, he cited Jitan Dusadh and another v. Jawahir Singh and others (A I R 1925 Pat. 504) Commissioner of Income-tax v. E. M. Chettyar Firm (A I R 1930 Rang. 4), Secretary of State for India v. Maharaja Birandra Kishore Manikya and others (AIR 1916 P C 141), Mst. Sabitri Thakurain v. Savi and another (AIR 1921 P C 80) and Chakrapani Jagannath Prasad Shukla v. Chandoo Sahadeo Satndmi and another (A I R 1959 Madh. Pra. 81). Seemingly contrary view in Kessowgi IsLur v. Great Indian Peninsula Railway Co. (1 L R 31 Bom. 311) learned counsel stated, was explain able and in fact was not adopted in the subsequent rulings. He also agreed that the combined reading of sections 4, 107, 117 and Order XLI of Civil Procedure Code together with section 23 of the Worksmen's Compensation Act read with rules 19 and 41 (in fact they are rules 21 and -13 of the West Pakistan Workman's Compensation Rules, 1961 while the learned counsel probably was referring to the Central Rules of 1924) would show that the High Court has the power in exercise of its appellate jurisdiction either to record additional evidence or to remand the case for further enquiry to the Commissioner. But relying on section 30 of the Workmen's Compensation Act, he argued that the appeal before this Court under the said provision being competent only op substantial questions of law, the same cannot be accepted on the insufficiency of evidence produced by one or the other party and/or for the reason that the Commissioner failed to record or admit any essential piece of evidence.

5. I agree with the first part of the reasoning of learned counsel for respondent No. I in so far as the power qua additional evidence, of- this Court (while dealing with appeal under section 30 of the Act), is concerned. "By virtue of section 117, Cr. P. C., the provisions of the Code apply to the High Courts. Section 107 thereof deals with the powers of the appellate Court. They include the power to remand a case, to frame issues and refer them for trial and to take or require additional evidence. It also confers the same powers on the appellate Court as are conferred on the Court of original jurisdiction. The Commissioner under rule 43 of the 1961 Rules has un limited power with regard to procedure in holding the enquiries. Rule 43 read as follows:

"43. Certain provisions of Code of Civil Procedure, 1908, to apply Save as otherwise expressly provided in the Act or these rules, the following provisions of the First Schedule in the Code of Civil Pro cedure, 1908, namely, those contained in Order V, rules 9 to 13 and 15 to 30, Order IX, Order XIII, rules 3 to 10; Rules 2 to 21; Order XVI; Order XVII and Order XXIII, rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto:

Provided that-

(a) for the purpose of facilitating the application of the said provisions, the Commissioner may construct them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;

(b) the Commissioner may, for sufficient reason, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interests of the parties will not thereby be prejudiced."

Section 23 of the Act does not really lay down any prohibiting limitations in so far as the procedure to be adopted by the Commissioner in conducting the enquiries is concerned. It only provides that the Commissioner shall have all the powers of civil Court under the Code of Civil Procedure for the purpose of taking evidence on oath and also in particular for "enforcing the attendance of witnesses and compelling the production of documents and material objects". Rule 43 obviously could not have (on account of its being subordinate measure) placed any restrictions on the wide powers conferred by section 23 of the Act. Therefore, while in the purview it provides that certain specified provisions of the Civil Procedure Code shall apply to the proceedings before the Commissioners in so far as they may be applicable, in order to further bring the rule in line with section 23 two provisos have been added (a) that the Commissioner may construe those provisions with such alterations as may be necessary or proper to adapt them to the matter before him; and (b) that he may for sufficient "reason proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced". It may be straightway observed that to read anything in this rule as limiting the powers of the Commissioner conferred on him by section 23 would be against the principle noted above, namely, that by a subordinate measure such an object cannot be achieved. But it is not necessary to go to that extent because the sum and substance of rule 43 is that in so far as the proceeding is concerned the Commissioner has been allowed wide discretion in the matter subject of course to only one condition that no procedure shall be permitted which acts in aid of injustice. If as provided in section 117 the provisions of the Civil Procedure Code apply to the High Court then under Order XLI thereof it has sufficient power to either remand the case for retrial or to record or direct recording of additional evidence. For the same reason, under section 107, C. P. C., it has also the power to do what the Court of original jurisdiction (here the Commissioner) could do. As there are no restricting limitations, in so far as the Civil Procedure Code as applicable to the proceedings before the Commissioner is concerned, the irresistible conclusion from the above discussion would follow that the Commissioner has the power to summon the witnesses and records (not produced by the parties) which might be otherwise' necessary for the correct decision of the case. This power is deducible even in formal terms from provisions contained in Order LXI, rule 14, C. P. C. read with rule 43 of the 1961 Rules, with particular emphasis on provisos (a) and (b) thereto. I, therefore, hold that even on the strict interpretation of the provisions of the Act and the Rules made thereunder and the C. P. C., the Commissioner has the power to summon Court witnesses technically so-called and other evidence including documents which the parties might have omitted or might not have liked to produce before him. The High Court also has the power on the same reasoning as also on the basis of special provisions conferring such powers contained in sections 107 and 117, C. P. C., either to admit such evidence in appeal and/or to remand the case for further enquiry including the taking of additional evidence.

6. The next question is whether the normal principle of bar against filling in the lacunas left by the parties or supplying the omissions negligently made by them, as is generally applied to the trials in the nature of adversary proceedings, can be applied to the proceedings before the Commissioner under the Workmen's Compensation Act. Ordinarily, the system of original trials in various fields of litigation in our country is adversary. But it cannot be said that there are no exceptions. One such exception is the proceeding under the recently introduced Rent Restriction laws. The two rulings of the Supreme Court given on similar questions arising out of those laws are E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 and Khadim Muhy-ud-Din and another v. Ch. Rehmat Ali Nagra and another P L D 1965 S C 459 In Evan's case, it was (by the ruling of the Supreme Court) laid down that the scope and nature of the law did not permit a particular party to contract of the protections provided thereunder. In the other case of Khadim Muhy-ud-Din, it was held that the enquiry conducted under the said law was of quasi judicial nature and was not to be influenced by any technical limitations of procedure. The preamble of the Workmen's Compensation Act provides that it was enacted to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. The underlying spirit of the entire enactment is that the workmen should, in so far as it is possible and subject to the provisions contained therein, be saved of the rigours of regular trials before civil Courts in torts. It can be easily visua lised that the workman has the advantage of easy trial and proceedings under the Workmen's Compensation Act with the disadvantage of formally fixed compensations. On the other hand, if he goes before a civil Court in ordinary trial he might have the advantage of seeking and getting more compensation but also the disadvantage of the normal regular trial of a civil suit which might take much more expense and longer time and difficult arduous journey to the end with possibility of innumerable pitfalls. The advantage qua the procedure under the Workmen's Compensation Act cannot be diluted by the limitations which are applicable to the normal trials before civil Courts nor by any other artificial limitations. There is another principle which underlies the provisions of the Workmen's Compensation Act. It is the duty of the functionaries thereunder as also the employers to do certain things without any initiative on the part of a workman or the heirs of a deceased workman. There are so many obvious provisions-some of them recently introduced in this behalf the details of which it is not necessary to give in discussion. The Commissioner has to act suo motu in more than one fields where the question of compensation to the workman is involved. To crown all this, section 17 specifically provides in no uncertain terms and it has not been left to the interpretation through a precedent law, that any contract or agreement whether made before or after the commencement of the Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employ ment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act. This provision is obviously analogous to the law declared by the Supreme Court in the case of E. A. Evans, when there is such a protection to a party for which the Act provides several other beneficial provisions, it becomes the duty of the tribunal enforcing such a law to see that no injustice is done to such a beneficiary. Even if the beneficiary is negligent or makes any concessions to the other party who is under a liability under such an enactment, the tribunal shall act suo motu to enforce protection to the beneficiary and while doing so, it cannot be imagined that he shall have no suo motu powers to hold enquiries and re ceive evidence so as to apply the protections. In this context therefore, the pro ceedings before the Commissioner at some stages do become inquisitorial when it is his duty to make suo motu probes so as to see that full justice is done to the beneficiary of course to the extent the beneficial law (here the Workmen's Compensation Act) provides to him. That being so, I do not agree with the reasoning of the learned Assistant Advocate-General that the general bar against filling in the lacunas or for that matter supplying the omissions would apply to these proceedings. I may however, as observed earlier, qualify the view expressed above, by the observation that even while exercising such inquisitorial powers the Commissioner shall not exercise them in aid of injustice to any of the parties. I may also clarify here that admission of additional evidence which might contribute to the correct decision of the case, regardless of the failure of one or the other party to produce it, cannot be treated as advancing the aims other than of justice. On this view of the matter as well, the Commissioner as also this Court has the power to summon Court witnesses and to admit additional evidence and for that purpose (if it becomes necessary for this Court) to remand the case. There is no bar against it.

7. There is yet another aspect of the matter. By virtue of the latest dispensation under our Constitution, social justice (as understood in Islam) is one of the corner stones of our polity. This principle and concept has now been enshrined in the. Constitution itself. All the organs of the State and authorities and persons performing function on their behalf have been enjoined to see the fulfilment of this and the other principles of policy con tained in the Constitution. Article 3 of the Constitution has codified in an expressive form a part of this principle. Keeping this as a basis, if the Workmen's Compensation Act is studied with particular attention to the preamble thereof and its underlying spirit as also the spirit of the Constitution, the old theory (if there was any) underlying the principles of interpretation of this enactment as contained in the commentaries on the Workmen's Compensation Act relied upon by the learned Assistant Advocated-General does not hold good. I am of the view that the interpretation beneficial to the workman is so far as it does not violate the language used in the enact ment has now to be adopted. The interests of the beneficiaries thereunder have to be safeguarded and it is no more possible to hold that it is a penal statute in so far as the employers are concerned. In view of the same back ground of spirit and principle it is not even a quasi-penal statute. It lays down the duties and liabilities of one citizen in the position of an employer' towards the other citizen who is his workman. There is no question of exacting a penalty from the employer. The spirit of the Constitution and the law, as discussed above, enjoins upon the employer to fulfil his obligations under, in accordance with and subject to this law, not as a penalty but as an ordinary duty and obligation towards the workman. I, therefore, express my dissent in so far as the following cases cited by the author in the commen taries relied upon by the learned Assistant Advocate-General are concerned:

Bombay Burmah Trading Corpn. Ltd. v. Ma E. Nan A I R 1937 Rang. 45 and In re: Maung Kyan A I R 1931 Rang. 173.

It may be mentioned here that in one of the cases, namely, Chilu Kahar v. Burn & Co. Ltd., Howrah A I R 1953 Cal. 516 somewhat similar conclusions were reached but on a different reasoning, namely, that with the progress of the times, the conception of the circumstances in which the workman. is entitled to compensation has widened, and become more liberal. That reasoning is also possible to support the above expressed views and I approve of it but, as discussed above, my reasons for laying down the above rule are different, namely, requirements and dictates of our Constitution together with the purposes and the spirit of the enactment in question, namely, the Workmen's Compensation Act.

8. The only question left to be resolved is whether section 30 of the Act prohibits the remand of a case by the High Court. The answer in so far as the language used in the said provision is concerned, is in the negative. In each case, it will depend upon the circumstances thereof and the points raised whether any contention raises a substantial question of law. In this case, it cannot be said that no substantial question of law is involved in so far as this appeal is concerned. The powers, duties of, and procedure to be adopted by the Commissioner under the Act are undoubtedly substantial questions of law. It is also a substantial question of law as to whether the Commissioner had not the duty to admit evidence which could be located by a cursory reading of the records before him. Moreover, he ignored vital evidence before him in the form of two documents, namely, P/3 and P/4. In my view, all of them involved substantial questions of law. If this condition is satisfied then, as discussed and held above, this Court has the power and jurisdiction to pass all proper orders. The Commissioner in this case ha failed to make proper enquiry by ignoring the material brought before him as also by his failure not to summon important witnesses and documents. Therefore, the impugned order passed by him is not sustainable in law. The same is set aside. The case is remanded to the learned Commissioner with a direction that he shall hold further enquiry, admit further evidence even if it amounts to additional evidence including the summoning of the Court witnesses and decide the case afresh in accordance with law. There shall be no order as to costs.

S. A. H. Appeal allowed, Case remanded

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