Govardhan, J.@mdashThis appeal is against the order passed by the Deputy Commissioner of Labour (Additional Commissioner for Workmen''s Compensation) Madras in W.C.C. No. 6111986.
2. The case of the applicant is as follows :
The applicant was workman under the Opposite Party. On November 22, 1984, he received personal injury while getting down from the train at Avadi Station at about 10:45 P.M. on his return home after completion of the first session of the work on that date. He used to travel in the train from his house to the work spot and the travelling with Residential Card pass includes his duty. He lost his two legs due to the accident. The applicant aged 49 years was getting a salary of Rs. 1500/- at the time of the accident. The loss of earning capacity is 100% and the applicant therefore makes a claim for Rs. 78,235/- as compensation.
3. The Opposite Party in their counter contends as follows : The applicant was working as a welder and he was booked for the night shift for the work commencing from November 19, 1984 to November 24, 1984. On November 22, 1984, he worked on the first half of the shift and his gate card was clocked "out" at 21:05 hours at the closure of first period of night shift and from the second period onwards, he was unauthorisedly absent from duty. When the wages period closed, on November 26, 1984, the absence was taken into consideration and he was treated as unauthorised absentee. In December 1984, a leave letter for 4 1/2 days from November 22, 1984 (II period) to November 26, 1984 was submitted by the applicant with the recommendation of the Station Charge-man. Leave was sanctioned by the Shop Superintendent on December 12, 1984. It was found on scrutiny that he had applied for regularisation of his absence after the accident quoting the reasons for his absence and he has not applied for leave in advance. He is therefore not entitled for any compensation towards injuries and loss of legs.
4. On the above pleadings, an enquiry was held by the Deputy Commissioner of Labour and the impugned order awarding a sum of Rs. 78,235/- was made in favour of the applicant.
5. Aggrieved over the same, the Opposite Party has come forward with this appeal.
6. The learned counsel appearing for the appellant would argue that the applicant who was a worker under the respondent has claimed compensation for the injuries sustained by him on November 22, 1984 while alighting from the moving train and the same was granted to the applicant, by the Deputy Commissioner of Labour, who has failed to consider the fact that the applicant cannot be said to be on duty at the time of the accident, since he did not complete the duty on that date and he has attended the First period of the night shift duty only and he has left the work spot without prior permission of his superiors and as evidenced by his gate card was also clocked out at 21:05 hours and therefore, the order passed by the Deputy Commissioner is illegal. According to the learned counsel appearing for the appellant, whether the accident which occurred to the applicant was one occurred during the course of his employment, and this question of law has not been considered by the Deputy Commissioner in the proper perspective and the Deputy Commissioner has simply observed that his leaving the duty premises at 21:05 hours is not going to be vital point in this case. According to the learned counsel appearing for the appellant, it is a very vital point in this case which alone decides whether there is any substantial question of law in this appeal. The applicant was booked for the night shift for the work on November 21, 1984 and he had worked during the first period of the night shift is not in dispute. The applicant did not attend the second period of night shift and on his way back home, he has met with the accident and he has been admitted in the Railway Hospital on the 22nd morning is also admitted. There is no dispute over the proposition that the time taken by an employee to reach his work spot from his residence and the time taken by him to reach his residence after finishing his work is also to be considered as a duty period when he was provided with a conveyance or pass for travelling in a public carrier. According to the learned counsel appearing for the appellant, if the applicant had finished his work on the second half of the night shift also, and if he had met with the accident on his way home, he is entitled to contend that he had sustained injury during the course of his employment and therefore he is entitled for compensation. But, in so far as the applicant is concerned, he has not completed so the entire night shift for which he was booked on that day and he has done his work only during the first half of the shift and has absented himself unauthorisedly for the second half of the shift and therefore, the accident which he had met cannot be considered as one met by him during the course of his employment to enable the applicant to claim compensation.
7. The applicant''s case is that he has applied for leave in advance. But the fact remains that he has applied for leave including the second half of the night shift and unauthorised leave on loss of pay has been sanctioned to him for the second half as well as subsequent to three days by the employer. The learned counsel appearing for the respondent who has brought it to the notice of this Court, would argue that if the applicant had been sanctioned leave for the second half by the management, it cannot be considered as an unauthorised absence, since if it is an unauthorised absence, it will be a misconduct for which, the management would have issued a memo and after calling for explanation framed charges against the applicant and no such thing has happened and the leave applied for by the applicant having been sanctioned by the Shop Superintendent on December 12, 1984 itself, the version of the appellant-employer that he was on authorised absence is not a tenable one. The learned counsel appearing for the appellant would contend that whether the applicant is entitled to the leave as sanctioned by the Shop Superintendent or not is a question of fact which cannot be subject matter of appeal in E.S.I.O.P. Rightly of wrongly leave has been sanctioned to the applicant from the second half of November 22, 1984. It is a fact. The Deputy Commissioner of Labour has also given a finding that he was on leave during those days, therefore, it cannot be the subject matter of this appeal since the appeal u/s 30 of the E.S.I. Act, can be entertained only on a substantial question of law. It is not open to the High Court to re-assess the evidence and to reverse the finding of a fact arrived at by the Commissioner for Workmen''s Compensation as to whether the applicant is entitled to the leave sanctioned by a Shop Superintendent. Therefore, I am of opinion that the appeal itself is not maintainable on the ground so that there is no substantial question of law. The claim of the learned counsel appearing for the appellant, that it cannot be considered as a question of fact since the applicant has not worked during the second half of the night shift on November 22, 1984 is not convincing and acceptable since it has been laid down in the decision reported in Smt. Asmath Beebi v. Smt. Marimuthu 1990 (1) Labour Law Notes 892 as follows :
"A question of fact, however substantial, cannot masquerade as a question of law and cannot automatically be treated as a substantial one, even if the amount involved is substantial or the argument pressed is vehement. If it is of great public importance or if it arises so frequently as to affect a large class of people or is so basic to the operation of the Act itself, one may designate the question of law as substantial. But, where it is covered already by precedents or the law on that aspect is well settled, the mere difficulty of applying the facts to that law cannot make it a substantial question of law".
In the case on hand, there is no material which can be stated as of great public importance, since it is only whether the sanctioning of leave to a worker in the circumstances of the case is proper or not. It is also not a case which arises frequently affecting large class of people. If we go into that question whether the sanctioning of leave by Shop Superintendent is proper or not and whether the acceptance of the leave so sanctioned by the Shop Superintendent by the Commissioner for Workmen''s Compensation, it would only amount to re-assessing the evidence and attempting to reverse a finding of fact arrived at by the Commissioner for Workmen''s Compensation, which is not permitted u/s 30 of the Workmen''s Compensation Act. Therefore, I am of opinion that the appeal has to fail on the question that there is no substantial question of law involved in this case.
8. The learned counsel appearing for the respondent would argue that even assuming that there is a substantial question of law, the appeal has to fail on the ground that it is barred by limitation. An appeal to the High Court, on an order passed by the Deputy Commissioner of Labour has to be filed within 60 days as per Section 30(2) of the Workmen''s Compensation Act. According to the learned counsel appearing for the respondent, the order of the Deputy Commissioner has been passed on May 17, 1987 and the appeal has been filed on July 27, 1987, beyond the period of 60 days and therefore on the question of limitation also, the appeal has to fail. The learned counsel appearing for the appellant would argue that 60 days time has to be calculated from the date of the receipt of the order by employer and not from the date of the pronouncement of the order by the Deputy Commissioner. The learned Counsel would contend that as per Section 12(2) of the Limitation Act, in computing the period of limitation for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the order appealed from or sought to be revised shall be excluded and this order passed by the Deputy Commissioner having been received by the respondent only on June 23, 1987, the appeal is well within the period of limitation. But, it has been held in the decision reported in O.S.R.T. Corporation v. S. K. Mahapatra 1987 I LL 358 that where the appeal was presented on January 24, 1985 by the employer against the award dated November 6, 1984 of the Commissioner for Workmen''s Compensation granting compensation to the respondent-employee, and the appeal was admitted without considering the question of limitation, the appeal is barred by limitation for want of a specific order of condonation of delay u/s 5 of the Limitation Act. This implies that the appeal has to be filed within 60 days from the date of the award and if there is delay, the delay has to be condoned. In the decision reported in Kap Steel Ltd. v. Smt. R. Sasikala 1992 I LLJ 61, it has been held that the period of limitation for an appeal u/s 30(2) of the Workmen''s Compensation Act shall be sixty days. A Division Bench of the Karnataka High Court has held in this decision that the period of limitation prescribed for preferring an appeal u/s 30(2) should be counted from the date of pronouncement of order by Commissioner for Workmen''s Compensation and not from the date of communication, even if in a given case after pronouncing the order, a communication about passing of the order is also given. In the case on hand, the order by the Deputy Commissioner has been passed on May 17, 1987. It has been received by the Employer-respondent-Opposite Party on June 23, 1987 and the appeal was filed on July 27, 1987. The order having been passed on May 17, 1987 preferring an appeal on July 27, 1987 without an application for condonation of the delay, is barred by limitation in view of the above two decisions. The appellant cannot urge that u/s 12(2) of the Limitation Act, the time taken for the copy being prepared and delivered to the appellant is to be excluded to decide whether the appeal is in time or not. I am of opinion that the said contention is not tenable. In any view of the matter, I am convinced that there is no merit in this appeal and it has to be dismissed.
9. In the result, the appeal is dismissed. No costs.
