SOERTSZ J.—Sirisena v. Kelaart.
1941Present: Soertsz J.
J. A. SIRISENA v. KELAART.In the Matter of an Appeal against the Decision of
C OMMISSIONEH OF WORKMEN’S COMPENSATION.
Workmen’s Compensation Ordinance (Cap. 117)—Inquiry by more than oneCommissioner—Fatal irregularity—Reasons for postponement of inquiry,s. 54, reg. 20.
An inquiry under the Workmen’s Compensation Ordinance must bemade before one Commissioner.
Where an inquiry was commenced before one Commissioner and con-cluded before another,—
Held, that the irregularity was fatal.
If an inquiry cannot be disposed of at one hearing, the Commissioneris bound to record the reasons that necessitate a postponement. '
HIS was an appeal from an order made under the Workmen’sCompensation Ordinance.
Saravanamuttu, for the appellant.
J. Alles, for the respondent.
Cur. adv. vult.
August 29, 1941. Soertsz.J.—
This is an appeal by a person claiming compensation under the Work-men’s Compensation Ordinance, on the footing that he is a dependant,within the meaning of section 2 of the Ordinance, of a workman whocame by his death as the result of an accident that occurred in the courseof his employment.
On the evidence led at the inquiry, Mr. F. C. Gimson who appears to bea Commissioner appointed under the Ordinance, was not satisfied thatthe petitioner was a son of the deceased workman, and he refused theapplication.
Section 48 of the Ordinance gives a right of appeal on a point of law.There is no point of law raised in the petition of appeal in the manner inwhich, in consequence of section 51 of the Ordinance, it should have beenraised. There is an averment in the petition of appeal that “ the Com-missioner’s finding is against the weight of evidence ”. I am unable toaccept that submission, and in that view of the matter, I should haverejected this appeal.
But I find that there is a substantial point of law although it has notbeen taken in the petition of appeal, or by Counsel at the argument beforeme, namely, that all the proceedings in this matter are vitiated by thefact that the inquiry began before one Commissioner, Mr. Jayanetti, whotook the evidence of the petitioner and three witnesses, and, for somereason which does not appear on the record, adjourned the inquiry for alater date. This is contrary to regulation 20 framed under section 54 ofthe Ordinance which says that “if the Commissioner finds it impossibleto dispose of an application at one hearing he shall record the reasons thatnecessitate a postponement”.
SOERTSZ J.—Mustapha v. Ultima Kania.
Passing that by, I find that on the later date, another Commissioner,Mr. Gimson, took the evidence of another witness called by the petitionerand made the order in question. This is, obviously, an unsatisfactorycourse. But it is even worse. It is contrary to the directions 6f theOrdinance and of the regulations framed thereunder. The provisionsof the Ordinance and the regulations contemplate an inquiry by onesingle Commissioner except in the case stated in section 33 of theOrdinance, and there is nothing whatever to show that this was such acase.
I think I ought to take cognizance of this irregularity although noobjection on that ground has been taken.
I therefore set aside the order and send the case back for inquiryaccording to the requirements of the Ordinance.
J. A. SIRISENA v. KELAART