P.B. Chakravartti, C.J.
1. Mr. Sanyal appearing on behalf of the employers has urged only one short point in this appeal and that point is a point of limitation. The respondent, who was employed under the appellants in the capacity of a linotype operator, claimed compensation on the ground that he had contracted the occupational disease of lead-poisoning by reason of his peculiar employment. He admitted having felt some pain in 1949 and again in 1951 and also having had to absent himself for a few days in those two years. In 1951 he was absent on 1 May and also on 2 May but when he went to the press on 3 May, he was told by the manager that he was unfit for work and could not be allowed to join. I need not do anything more than refer in passing to the case of the appellants that the respondent had been, in reality, dismissed because of misconduct, inasmuch as he had been detected stealing bars of lead for use in a business which he had started in his own account.
2. The application for compensation was made on 23 November 1951. It was contended that by reason of the first proviso to Section 10(1) of the Act time must be deemed to have started running in favour of the appellants in 1949 or in 1950 and that, in either case, the application was barred by limitation. The learned Commissioner has repelled that contention on the ground that it had not been proved that either in 1949 or in 1950 the respondent had been suffering from lead-poisoning and that it was in May 1951 that he was for the first time compelled to absent himself from duty continuously on account of lead-poisoning and that was on 1 and 2 May. On that basis, the learned Commissioner has held that the respondent had been absent from work in consequence of the disablement caused by the disease on 1 May 1951, for the first time and if that was the starting point of limitation, the application was dearly within time.
3. Mr. Sanyal has contended that the learned Commissioner was wrong, inasmuch as he overlooked the fact that the respondent had reported for duty on 3 May and if he had, it was not a case of his having remained continuously absent. It was further contended that assuming that the respondent had been continuously absent for two days in 1951, he had been similarly absent in 1950 and even earlier in 1949, and therefore, time would run against him from 1949 or 1950 under the first proviso to Section 10(1). The short answer to that contention is that given by the learned Commissioner and the answer is that the appellant was not able to establish by evidence that the cause of the respondent's absence from duty in 1949 and 1950 was lead-poisoning. The farthest that the appellants were able to take the respondent was that he had felt some pain and that his doctor told him that be suspected lead-poisoning. In answer to a direct question as to whether he had been treated for lead-poisoning, the respondent gave a clear answer in the negative. The matter was not pursued further and the respondent was not asked whether he had actually been suffering from lead-poisoning, regardless of whether he had been treated for the disease or not. In the above state of the facts, it seems to me that if the respondent was continuously absent for two days in 1951 on account of the disease of lead-poisoning and that was the first occasion on which he was so absent, the learned Commissioner was clearly right. Assuming, however, that the absence in 1951 cannot be regarded as continuous absence within the meaning of the proviso, the appellants would require to establish the biginning of the disease at a point of time beyond one year from the date of the application. As I have already stated, no such point of time has been established. The plea of limitation is a plea in bar and the onus lies on the party setting up such a plea to prove the facts required to establish it. The appellants in the present appeal did not succeed in establishing that the occupational disease of lead-poisoning started at any point of time beyond one year from the date of the application and that being so, from whatever point of view the application made on 23 November 1951 may be regarded, it cannot be held to have been barred by time. For the reasons given above, the only point urged in the appeal fails and the appeal is accordingly dismissed with costs--the hearing-fee being assessed at three gold mohurs.
S.C. Lahiri. J.
4. I agree.