S.S. Dhavan, J.
1. This is an appeal against anorder dated 22-3-1952 passed by Additional District Magistrate, Meerut functioning as Commissioner under the Indian Workmen's Compensation Act, rejecting the appellant's prayer for compensation. The appellant Shambhu Datt filed an application fox compensation against the respondent Jag-dish Prasad for compensation in respect of an injury to his finger. The employer pleaded in defence that the injury was caused because Shambhu Datt was under the influence of drink at the time and, in that state, he disobeyed the express orders of the employer, and, instead of stopping the machine, started repairing it while the engine was still runing. As a direct result of his own conduct, his finger was cut off.
2. The parties led evidence. The Commissioner believed the testimony of Dr. R.S. Goel that Shambhu Datt was very much under the influence of drink when he examined him. Consequently, he dismissed the claim under Section 3(1)(b)(i) which provides that an employer shall not be liable inrespect of any injury caused by an accident which is directly attributable to the workman having been under the influence of drink or drugs at the time of the injury. Aggrieved by this decision ShambhuDatt has come to this Court in appeal.
3. Mr. Yudishthira, learned counsel for the appellant attacked the finding of the Commissioner on the ground that it was based on no evidence. After examining the order of the Commissioner and the testimony of Dr. R.S. Goel a certified copyof which was supplied by learned counsel -- I am of the opinion that this contention is correct.
4. The Commissioner, had held in favour of workman Shambhu Datt that he was a workman employed by the respondent Jagdish Prasad, that the accident arose out of and in the course of his employment in the factory belonging to Jagdish Prasad. He disbelieved the version of the employerthat Shambhu Datt was a casual employee. The workman had also proved that his finger had been cut off as a result of the accident and he had suffered a permanent partial disablement. Thus, a case for compensation was made out by the workman under Section 3(1) read with See. 4(1)(c) of the Act.
5. The employer, however, relied on the proviso to Section 3 which provides, inter alia, that an employer would not be liable to pay compensationin respect of any injury, not resulting in death if it is caused by an accident which is directly attributable to the workman having been at the time of the accident under the influence of the drink, or drugs or to the wilful disobedience of the workman to an order expressly given by the employer. (We are not concerned with the other clauses of the proviso which would disqualify a workman from compensation).
6. If a workman establishes a case for compensation under Section 3, the onus of proving facts which will disentitle him to compensation under the proviso is on the employer. He may lead evidence to show that the accident was caused by the wilful infringement by the workman of any order of the employer or because he was intoxicated or drugged at the time of the accident. There may be cases in which the evidence of the workman himself may prove the case of the employer. But in the present case, the workman having denied that he was drunk at the time of the accident or even given to drinking, the employer had to prove by his own evidence that the accident had been caused by his disobedience of the orders while in a state of drunkenness.
7. The employer gave evidence himself and produced three witnesses -- that of two men, Bhagwana and Jahabbar Singh and of a medical practitioner, Dr. R.S. Goel. The Commissioner disbelieved the evidence of the employer and his two men. He observed, 'I would have been most reluctant to place any reliance upon the evidence of the so-called eye-witnesses produced by the opposite party (the employer)'. But he saw no reason to disbelieve Dr. Goel, whom he described as 'a doctor of considerable standing and repute.'
He, therefore, held 'in view of the evidence of the doctor and also in view of the facts that no other medical practitioner has been produced in his support by the applicant, I have no option but to hold that the applicant was under the influence of drink at the time of the accident which directly caused the same.' In view of this finding, the Commissioner thought that it was unnecessary to proceed with the other issues or determine the amount of compensation to which the workman might be entitled.
8. I have to consider whether the testimony of Dr. R.S. Goel, even if it is believed, establishes the fact that Shambhu Datt was under an influence of drink at the time of the accident and that it was directly attributable to his state of drunkenness. 1 am of the opinion that it does not.
9. Dr. R.S. Goel deposed before the Commissioner that when the workman Shambhu Datt was brought to his dispensary he was groaning ('Chilla rahe the') and that he could smell the odour of liquor in his breath. He also deposed that Shambhu Datt told him that he had taken liquor. In his cross examination he admitted that he made no special test for ascertaining whether Shambhu Datt had taken liquor. However, as Sambhu Datt) was in a state of semi-consciousness (Behoshi) and was groaning, and had also told him that he had taken liquor, the doctor deduced that he must have consumed liquor. He, however, conceded that the state of semi-consciousness could also be due to his injury.
10. For. the purpose of this appeal I must accept the evidence of Dr. Goel that the workman Shambhu Datt smelt of liquor when he examined him. But there is nothing in his evidence to show when this liquor was consumed. The doctor said that the workman was semi-conscious when he examined him and conceded that this could be due to his injury. (He had lost a finger as a result of the accident). Dr. Goel's evidence is, therefore, consistent with the possibility that some stimulating liquor was given to the workman after the accident to prevent him from collapsing.
This may have been done by his relatives or even by the employer. In the absence of specific evidence this is a matter for speculation. But Dr. Goel's evidence established only the fact that the workman was smelling of liquor when he was taken to the dispensary sometime after the accident, but not that he was in a state of drunkenness before or at the time of the accident. The testimony of the employer and his other two witnesses having been disbelieved, there was no other evidence on which any finding that the workman was drunk at the time of the accident or that it was caused by his state of drunkenness or disobedience of orders could be founded.
The Commissioner made it clear that he was compelled to hold against the workman in view of the doctor's testimony but he overlooked the fact that his testimony was confined to the workman's condition after the accident when lots of things could have been done to revive him or to relieve him of his pain. As evidence of his drunkenness at the time of the accident Dr. Goel's testimony was inadmissible as hearsay, as some time had elapsed between the accident and Shambhu Datt's examination. The evidence could not be admitted even as part of res gestae.
11. This Court held in Mohammad Ibrahim v. State of U. P., Writ Petition No. 449 of 1955, that an order of dismissal passed against an official for misconduct was liable to be quashed because there was no legal evidence to support the finding of the Inquiry Officer that the accused was guilty of the offence imputed to him. The principle established in that case would extent to the one before me.
12. I would, therefore, hold that the employer failed to prove the facts which, under the proviso to Section 3, could have defeated the workman's claim to compensation.
13. Another reason which weighed with the Commissioner in deciding the question of drunkenness against the workman was 'the fact that no other medical practitioner has been produced in his support' by him. I do not see how this was a relevant consideration. An accident does not give an advance warning of its approach and it would be absurd to require a workman to keep a doctor lay his side so that in case of an accident he can testify that the workman was not drunk.
After the accident Shambhu Dutt was admittedly in a state of unconsciousness (behoshi), and it was not passible for him to know whether any alcoholic stimulant such as brandy had been given to him after his finger was cut off. The Commissioner, was thus influenced by the irrelevant consideration that the workman had produced no medical practitioner to prove that he was sober at the time of the accident. It was held by the Supreme Court in Dhirajlal Girdharilal v. Commr. of Income-tax, Bombay, (S) AIR 1955 SC 271, that a finding of fact based on irrelevant considerations is wrong in law. This is an additional reason for reversing his decision. I allow this appeal and set aside the order of the Commissioner.
14. The Commissioner did not assess the amount of compensation to which the workman is entitled. I, therefore, remand the case to the District Magistrate, Meerut with a direction that he shall assess the amount of compensation due to the workman Shambhu Dutt in lieu of the injury sustained by him. For the purposes of this case, the Commissioner shall accept the findings of this Court that there is no evidence that the injury was directly attributable to the workman having been under the influence of drink or to his wilful disobedience of orders. No further evidence shall be permitted on this issue.
15. It appears that the record of the case before the Commissioner was prematurely weeded out as a result of some misunderstanding of the rules. If necessary, the Commissioner will reconstruct the record for the purposes of assessing the quantum of compensation due to the workman. He will be free to accept the evidence of the parties, by affidavit or otherwise, for the purpose of assessing the amount.
16. There shall be no order as to costs of thisappeal.