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Appeal No. QSA‑12 of 1985, decided on 30th October, 1985.

‑‑‑S. 30‑‑Workman's sleeping at night at place of duty after duty hours‑‑No evidence that his stay at such place during night way udder orders of employer‑‑Workman murdered while asleep‑‑Order of Commissioner dismissing claim for compensation on grounds that death was not arising out of and in course of employment, in circumstances upheld.

A I R 1942 Bom. 175 distinguished.

Ghulam Qadir Cheema for Appellant.

Syed Fazal‑ur‑Rehman for Respondent.

Date of hearing: 27th October, 1985.

This is an appeal under section 30 of the Workmen's Compensation Act challenging the order, dated 18‑3‑1985 passed by the learned Commissioner for Workmen's Compensation, Lahore dismissing the application of the appellant for compensation for the loss of the life of Muhammad Asghar, Driller.

2. Drilling was being done at the site where the deceased too used to work. He was murdered on the night between 11th and 12th February 1981. The learned Commissioner has held that the death of the deceas4d did not take place arising out of and in the course of employment of the deceased. On behalf of the appellant evidence was produced that there was no Chowkidar to look after the tools, implements and the machinery and that the workers including the deceased used to stay at" night at the site in the tents provided by the respondents to look' after the articles. On the other hand, the evidence produced by, the respondents is that the workers' duty was to work during day tide and they were not required to stay at night for looking after the implements. No order has been produced in evidence to the effect that the deceased or any other worker was ordered to stay at night. Drilling was done during day time and if the Drillers or labourers used to stay at the site for their convenience, it did not mean that t4ey Were directed by the respondents to do so. Learned counsel for the appell00t has drawn my attention to Exhs. P.W.‑1/2 and P.W.‑1/3 and has argued that the deceased and other employees were bound down to stay it night. In form Exh. P.W.‑1/2 at item No. 10 it is written that the deceased was on Government duty. But item is interpolated. Originally it was written "sleeping at 2 on 2‑L Jallakee M.W. site". The words to "sleeping at 2" were cancelled and above it, it was written "on Government duty". The interpolation is in different pen and ink and handwriting. The document is photostat copy attested by the learned counsel for the appellant. The cutting and over writing is not initialled or signed by the Sub‑Divisional Officer, whose signatures appear in the bottom. Apart from it no reason has been given why the original document which must be in the custody of the learned counsel for the appellant as he attested Exh. P.W.‑1/2, was not produced. So the document, for the reasons given above, is not reliable. So far as Exh. P.W.‑1/3 is concerned, it does not show that original of it was bearing the signatures of any authority. It is a photo copy attested by the learned counsel as true copy. If the original had been bearing the signatures of some Officer, its photostat would have shown the photo of the signatures. The document, therefore, has no evidentiary value. So there is no admission or documentary evidence to show that the deceased was on duty at night when he was murdered. Learned counsel has cited A I R 1942 Bom. 175 but the same is not helpful as the facts are different. There a Khalasis used to take his meals and sleep on a barge when there was some work to be done at night. He had slept on a barge on the night of the accident and in the morning was missing. After two days his dead body was found floating in the docks. Since there was evidence that when there was work to be done at night, the deceased in that case used to sleep with other Khalasis on the barge, it is manifest that he was on duty during the night of the accident. But in the present case neither there is any such admission nor believable evidence that the deceased Driller was on duty on the night of occurrence. The case of the appellant was that there being no Chowkidar, the deceased and other employees were deputed to look after the machinery. There is no evidence that the deceased was paid extra salary or allowance for staying at the site at night, to act as Chowkidar. In the absence of any order in writing, the pay register could have shown if the deceased was paid some extra money but no such evidence was produced. Oral evidence produced by the appellant stands rebutted by the evidence of P.W.‑1. So the learned Commissioner was justified in discarding the evidence of the appellant's witnesses. The witnesses examined by the appellant also said that the machinery used to work 24 hours, therefore, the workers were ordered to stay at the site at night. This version belies the evidence that the employees had to look after the machinery at night. Where work is done 24 hours, there are shifts. So during night shift the workers of that shift are present.. This is not the case of the appellant that the deceased was working in night shift, rather according to the evidence he was sleeping. Moreover, if the machinery worked 24 hours, it is l9oked after by the persons who are on duty at night, so no question of deputing the deceased or any other worker to look after the machinery at night arises. So their is no tangible evidence to show that the deceased was on duty on the night of the occurrence. The petition for compensation was thus rightly dismissed.

3. AS a result, the appeal fails and is dismissed.

A.E. Appeal dismissed.

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