A finding recorded without any evidence whatsoever is a question of law.

JUDGMENT :

1. This is an appeal by the employers against an order passed by the Commissioner for Workmen's Compensation, Bombay, awarding a sum of Rs. 245 as compensation to the respondent for the injury suffered by him. The learned Commissioner has also directed the appellants to pay a sum of Rs. 50 to the respondent by way of penalty and a sum of Rs. 10 by way of costs.

2. The respondent is in the employment of the appellants in a factory situated at Chandiwali. On May 12, 1962 a finger of the right hand of the respondent was caught between the drum and the frame of a coiling machine. The respondent was taken to the Bhabha Memorial Hospital where he was treated until May 17, 1962. On May 21, 1962 the respondent resumed his work and produced a certificate stating that he was fit to resume his duties. The respondent thereafter called upon the appellants to pay compensation for the injury suffered by him during the course of the employment and on the appellants declining to comply with the demand, he filed an application for compensation under the Workmen's Compensation Act.

3. The appellants admitted that the respondent was employed in their factory, but they contended that the injury was not connected with the nature of his employment, that the respondent was never asked to work on the particular machine while operating which he received the injury and finally that neither a partial nor a permanent disability was occasioned on account of the injury. The learned Commissioner for Workmen's Compensation, Bombay, heard the matter on June 29, 1963, when he issued an interim judgment observing that no evidence was at all produced before him to show that the respondent had received an injury which had caused either a partial or total disablement. In Para. 10 of the interim order the learned Commissioner observes that the respondent had not produced any evidence before him to indicate what was the loss of his earning capacity and that, therefore, it was difficult to allow the application filed by him. In the closing paragraph of the order, however, the learned Commissioner expressed the view that it was not proper that the respondent should suffer on account of the total absence of evidence and that it was necessary in the interests of justice that the respondent should be produced before him "for further questioning."

4. On July 15, 1963, the respondent appeared before the learned Commissioner and the judgment shows that the Commissioner took upon himself a task which must be foreign to him, namely, to examine the finger and ascertain the extent of the partial disability caused by the injury. It appears from the several observations made by the learned Commissioner in his judgment that the found that the joint between the terminal phalanx and the middle phalanx was stiff, that the respondent complained of pain while the joints were being bent and that the respondent also complained that the use of the finger was causing pain. From an examination of the finger of the respondent the learned Commissioner has concluded as follows in Para. 1 of his judgment :

"... I found that the further bending and straightening the finger was resisted by the applicant. So I am satisfied that the use of the finger is painful and is of no value."

5. The learned Commissioner then recorded a finding that the permanent loss in the earning capacity of the respondent was about five per cent and that, therefore, he was entitled to received a compensation of Rs. 245.

6. Sri Jathar, who appears on behalf of the respondent, has raised a preliminary objection to the maintainability of this appeal on the ground that the appeal is not maintainable under the first proviso to S. 30(1) of the Workmen's Compensation Act, 1923, unless it involves a substantial question of law. It is urged by the learned counsel that the sole question which arises in this appeal is whether the nature of the injury received by the respondent was such as would cause a permanent loss in his earnin