JUDGMENT

Hon'ble Lok Pal Singh, J.

1. The present appeal has been preferred against the judgment and award dated 12.01.2010 passed by the Workmen's Compensation Commissioner, Haldwani, District Nainital, whereby the Workmen's Compensation Commissioner has rejected the claim petition bearing No. W.C.A No. 24 of 2005 filed by the appellants.

2. Brief facts of the case are that the deceased- Narayan Dutt Pandey, who was the resident of Sanjaynagar-I, Bindukhata, Lalkuwa, District Nainital, working in factory of respondent No.2 as security guard on the services provided by M/s Hind Security Company i.e. respondent No.1. On 01.01.2005 the dead body of late Narayan Dutt Pandey found at factory gate of his employer M/s Mohit Petro Chemical Ltd. Nageena Raod Bijnore.

3. Though, the dead body of deceased- Narayan Dutt Pandey was found at the factory gate of respondent no. 2 and who died in unnatural death, the respondents did not lodge a FIR at the nearby Police Station in regard to the unnatural death of late Narayan Dutt Pandey, rather they took the dead body to the residence of complaint. Considering the unnatural death of Narayan Dutt Pandey his post mortem was conducted at Government Hospital Haldwani, the cause of death assigned in the post mortem report, shock and hemorrhage, anti mortem injuries received on the body of deceased. At the time of incident the deceased was getting a salary of Rs. 8,000/- per month from the employment of respondent No. 2.

4. Admittedly, late Narayan Dutt Pandey was an employ of respondent No.2 and his dead body was found at the premises of respondent No.2. Thus, it was incumbent upon the respondents to inform the Police of that area so the matter ought to be investigated by the Police to ascertain, as to whether he died during the course of employment or he was murdered. But the respondents did not lodge the FIR in the matter and decided to send the dead body to the house of deceased. Since the deceased died at the working place, therefore, the burden lies upon the respondents that he was not died during the course of employment. In the facts and circumstances of the case the burden lies upon the respondents that the deceased was not died during the course of employment, as this particular fact was in the knowledge of the respondents in what manner employ Narayan Dutt Pandey died.

5. On filing the claim petition before the Workmen's Compensation Commissioner, the written statement was filed by the parties and adduced their evidences. But learned Workmen's Compensation Commissioner without formulated any point determination/issues, dismissed the claim petition filed by the appellant by order dated 12.01.2010, on the ground that the claimants have not proved that the deceased died during the course of employment and after the perusal of the attendance register dated 01.01.2005 held that in the attendance register of his attendance is not marked.

6. That the circumstances of the death of Narayan Dutt Pandey were in the knowledge of respondents. Thus, in view of the Section 106 of Indian Evidence Act., burden lies upon them to prove that Narayan Dutt Pandey was not died during the course of employment.

7. It is the contention of the learned counsel for the appellant that since the duty hours were started 2:00 to 10:00 PM, therefore, there was no occasion to enter his attendance in the attendance register on 01.01.2005 after his death and the respondents have not produced attendance register before 31.12.2004. Thus, they have deliberately withheld the attendance register of the date of incident.

8. This appeal was admitted on 26.02.2010 without formulating any substantial questions of law. After perusal of the record of the case, this Court is of the view that substantial question of law No. 1 is relevant to decide the present appeal. It is proved on record by the evidence that deceased died at the gate of factory premises. Thus, it was incumbent upon the respondents to explain in what manner and at what