The right to compensation under the Workmen's Compensation Act, 1923 is a statutory right that passes on to the heirs of the workman on his death.

JUDGMENT :

D.P. Mohapatra, J. - This appeal u/s 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') was filed by the widow and minor son of Khageswar Swain, a Junior Artisan 'B'(Helper) under the Orissa State Electricity Board in its Bhawanipatna Electrical Division challenging the order of the Commissioner under the Act dated 21-6-1982 rejecting the application of the said workman for compensation. The application was filed by Khageswar alleging, inter alia, that on 12-12-76 when he was dischrging duty as a helper to the lineman, P W 1., in front of the CD. M.O.'s residence, the latter wanted him to hand over a tube light for fitting it up on the electric pole. He went up the ladder, received a shock from the electric pole, fell down and sustained injury on his spinal cord which resulted in paralysis of his lower limbs. The applicant claimed a sum of Rs. 26,880/- on the basis that he suffered a total permanent disablement due to the injury sustained in course of duty.

2. The application was contested by the respondent. The respondent denied his liability to pay any compensation stating that it was not the duty of the applicant who was only a labourer, to work on the electric pole with the lineman. Since the applicant had done the work unauthori-sedly the employer was not liable to pay any compensation. The respondent took the further stand that though the petitioner sustained injury on his spinal cord, he was cured by medical treatment. After obtaining a fitness certificate from the C.D.M.O., he resumed service. He neither lost his job nor were his emoluments reduced after the accident. He was given facilities of earned leave, medical leave, etc. as permissible under the service rules. Indeed, the applicant continued in his job till 30th of August, 1979, when he died a natural death.

3. On behalf of the applicant, two witnesses were examined--Gokul Prasad Das (PW1), Lineman, Grade 'B', to whom Khageswar was attached as a helper at the time of the accident, and Debaki Swain (PW2) wife of the applicant. A letter of the C.D.M.O., Kalahandi dated 27th of June, 1978 addressed to the Executive Engineer, Electrical Division, Bhawanipatna stating that the applicant suffered from paralysis of both the lower limbs and was walking with difficulty with the help of the poles and further that the paralysis caused as a result of fall from the electric pole while on work resulted in loss of hundred per cent of his earning capacity, was filed on behalf of the applicant. No oral evidence was led on behalf of the opposite party. A certificate dated 6-2-78 from the C.D.M.O, Kalahandi showing that the applicant workman was fit to join duties was filed on his behalf.

4. The Commissioner, on consideration, framed two questions for decision. One, if the workman was working unauthorisedly on the electric pole and he was negligent; and secondly, if the workman was entitled to compensation on account of the alleged permanent partial disablement. On consideration, he answered the first question in the affirmative and the second in the negative. The Commissioner took the view that the workman, Khageswar, acted negligently by doing work which was not assigned to him by the employer and further that he was all along in the employment under the Department and his earning capacity was never impaired. On these findings, he rejected the application for compensation. It may be noted here that after the death of the applicant Khageswar, the appellants were substituted in his place as his legal heirs.

5. The learned Counsel for the appellants challenged both the aforementioned findings of the Commissioner. It was his contention that the findings were vitiated due to erroneous approach and mis-construction of the statutory provisions.

6. On careful consideration, I am of the view that the contentions raised on behalf of the appellants have ample force. The liability of the employer for compensation is dealt with u/s 3 of the Act. Sub-section (1) thereof lay