ORDER : 1. Union of India in the Department of Telecommunication and the Chief General Manager of Telephones, Assam Circle along with two other officers of the same department have preferred this appeal under Section 30 of the Workmen’s Compensation Act, 1923, later on designated as Employees’ Compensation Act, 1923 (hereinafter referred to as the Act). 2. One Kanak Baruah and his wife Smti. Sarumai Baruah, as claimants, instituted W.C. Case No. 35 of 2001 in the Court of learned Commissioner, Workmen’s Compensation at Tezpur stating that their son, Late Jiten Baruah was engaged under the Department of Telecom for about 12 years. On 15.06.2000 while he was working in the telephone line repairing work along with one Ram Iqbal Patel and one Ramlal Mahato, he met with an accident at about 11 am and was electrocuted to death. The co-workers immediately lodged an F.I.R. with Gohpur Police Station leading to Gohpur P.S. Case No. 11 of 2000. The victim was taken to nearby P.H.C. where he was declared dead. The claimants prayed that appropriate compensation be paid under the provisions of the W.C. Act, 1923. 3. Upon receipt of notice, the Telecom District Manager at Tezpur on behalf of himself and others submitted a written statement denying employment of the deceased under the Telecom Department. It was stated that the deceased was never an employee of the Telecom Department in any office of the Gohpur Telecom Exchange or elsewhere. But it is not clear as to how he got himself involved in the accident as narrated by the departmental enquiries who were eye witnesses of the accident and were officially deputed for the job. The statement has been made in paragraph 6 of the written statement. A perusal of this paragraph would show that the deceased was admittedly working for the Telecom Department and while discharging his duty he was electrocuted accidentally and that this accident was witnessed by the regular employees of the Telecom Department. 4. Upon perusal of the rival contentions of the parties, the W.C. Commissioner framed following 4 issues and allowed the parties to lead evidence to prove their respective cases. I. Whether the deceased son of the petitioners was a workman as defined under the Workmen’s Compensation Act? II. 4. Upon perusal of the rival contentions of the parties, the W.C. Commissioner framed following 4 issues and allowed the parties to lead evidence to prove their respective cases. I. Whether the deceased son of the petitioners was a workman as defined under the Workmen’s Compensation Act? II. Whether the death of late Jiten Baruah was caused due to accident during the course of and arising out of his employment under the Opposite Parties? III. If yes, what would be the age of the deceased at the time of death and what would be the monthly wages payable to him to determine the amount of compensation? IV. Which particular authority or authorities might be held liable as employer to pay the due compensation if any? 5. Claimants examined as many as 5 witnesses including two eye witnesses namely, Ram Iqbal Patel (PW 3) and Ramlal Mahato (PW 4). The scribe of the F.I.R. Jiban Barkataki in the aforesaid UD case was also examined as PW 5 in the case. On the other hand, the Telecom Department examined one Sub-Divisional Engineer of Biswanath Chariali as the sole witness and he produced some documents in regard to Muster Roll, Complaint Register and Identity Card Issue Register of the department during the relevant period. The W.C. Commissioner, upon perusal of evidence led by the parties, arrived at the finding that although there was no appointment letter in writing in respect of the deceased but the deceased son of the petitioners was found to be workman as per meaning assigned under Section 2(1)(n)(ii) of the W.C. Act, 1923 (as it stood prior to 18.01.2010). This finding was arrived at on the basis of oral evidence of PW 3 and PW 4 who are admittedly regular employees of the Telecom Department. PW 3 stated in no uncertain words that the deceased was doing this repairing works for quite some time and that on the fateful day in presence of PW 3 and PW 4, he climbed up the telephone post to make the repairing when accidentally he touched a live wire and thus got electrocuted. PW 5 also deposed in the same breath to testify that the deceased was doing his job on the telephone post when he got electrocuted accidentally. PW 5 also deposed in the same breath to testify that the deceased was doing his job on the telephone post when he got electrocuted accidentally. The W.C. Commissioner considered the documents adduced by the telephone department through the sole witness and found that the Muster Roll Register or the Identity Card Issue Register were not regularly maintained and that there were blank pages in between suggesting that the same was not maintained in regular course of business. Considering the evidence led by the parties, the W.C. Commissioner accepted the evidence of PW 3 and PW 4 in addition to the oral evidence of PW 5 and held that the deceased was a workman under the Telecom Department. Thus, issue No. 1 was decided in favour of the claimants. Since PW 3 and PW 4 being eye-witness to the accident, deposed on oath before the W.C. Commissioner about the occurrence of the accident, the W.C. Commissioner decided the issue No. 2 in favour of the claimants holding that the deceased had died in course of employment under the telecom department. Having so found, the next issue about quantum of compensation was also decided under Section 4(1)(a) of the Act and the compensation was assessed at Rs. 1,95,219/- along with interest at the rate of 7% per annum w.e.f. the date of accident till realisation. This judgment and award was passed on 27.01.2006 which has been brought under challenge in the present appeal. This court while admitting the appeal on 30.10.2009 framed the following three substantial questions of law:- 1. Whether the claim of the respondents/claimants is supported by any cogent evidence to show that the deceased person was a workman within the meaning of Section 2(1)(n) (Schedule II) of the Workmen’s Compensation Act, 1923? 2. Whether the death of the said deceased could be held as caused by the accident arising out of and in the course of his employment for entitlement of compensation under Section 3 of the said Act? 3. Any other question which may be allowed to be raised at the time of hearing of this appeal? 6. I have heard Mr. B. Pathak, learned Standing Counsel of the B.S.N.L. on behalf of the appellant. No one has put up appearance on behalf of the claimants. 7. 3. Any other question which may be allowed to be raised at the time of hearing of this appeal? 6. I have heard Mr. B. Pathak, learned Standing Counsel of the B.S.N.L. on behalf of the appellant. No one has put up appearance on behalf of the claimants. 7. The first substantial question of law is in regard to status of the deceased about workman which prima facie, appears to be a finding of fact. The learned Standing Counsel of the BSNL argues that the initial burden was on the claimants to show employment of the deceased under the BSNL. But they miserably failed to do so. Under such circumstances, the W.C. Commissioner did not have jurisdiction to entertain the claim case and so, the impugned judgment and award is liable to be set aside. I have perused the lower court records including the claim petition and the written statement as well as the evidence adduced by the parties. In the claim petition it is specifically stated that the deceased was working under the department of telecommunication for about 12 years last and on the fateful day while he was discharging duty of the telecom department as usual, he met with the accident and got electrocuted. Even in course of evidence, the claimants deposed the same facts and described the deceased to be a workman within the meaning of Section 2(1)(n) of the Act (as it stood prior to 18.01.2010). This is because the erstwhile section 2(1)(n) defined workman in a wide parlance. It included employment in any capacity as specified in Schedule II to the Act whether on contract, either expressed or implied, oral or in writing. Only the members of the Armed Forces of the Union were excluded expressly from the purview of the word ‘workman’ under the said section. The accident had taken place on 15.06.2000 and so the definition of the workman as it stood prior to 18.01.2010 is very much applicable in the present case. PW 3 and PW 4 are admittedly the regular employees of the telecom department (Now BSNL). These two witnesses deposed on oath that in their presence deceased had climbed up the telephone post and was doing repairing job when he accidentally touched a live wire and thus got electrocuted. PW 3 and PW 4 are admittedly the regular employees of the telecom department (Now BSNL). These two witnesses deposed on oath that in their presence deceased had climbed up the telephone post and was doing repairing job when he accidentally touched a live wire and thus got electrocuted. This witnesses specifically stated that deceased was not a lunatic and that he used to attend similar works for a quite long time. They were thoroughly cross examined by the appellant herein when they did not contradict their earlier statements in regard to service rendered by the deceased concerned. They were firm in saying that the deceased had been attending similar duties for long time. PW 5, who is the author of the F.I.R., after the accident had taken place, stated on oath before the W.C. Commissioner that the deceased used to attend similar works of the telecom department since 1993 and even in his house the deceased had gone for installation of telephone line on behalf of telecom department. Thus, there is oral evidence on record to show that deceased had been rendering services to the telecom department for long period since 1993 and was doing so continuously till he died on duty on 15.06.2000. These evidences are on record and the learned W.C. Commissioner relied on the same. Whether this evidence is sufficient or not, is not a question to be decided while adjudicating the substantial question of law. The question is to whether there is any evidence at all to arrive at a finding that the deceased was a workman within the meaning of Section 2(1)(n) of the erstwhile Workmen’s Compensation Act, 1923. There is some evidence on record and the learned W.C. Commissioner relied on it. An appellate court in exercise of power under Section 30 of the Act cannot consider sufficiency of evidence or cannot appreciate 8. Mr. B. Pathak, learned Standing Counsel of the BSNL, submits that at the time of admission of the appeal, an interim order was passed by this court staying operation of the impugned judgment and award thereby staying only disbursal of 50% of the deposited amount and consequently a sum of Rs. 1,36,000/- has already been disbursed to the claimants on 07.02.2007. This is also available from the order dated 07.02.2007 passed by the W.C. Commissioner as available in the lower court records. 1,36,000/- has already been disbursed to the claimants on 07.02.2007. This is also available from the order dated 07.02.2007 passed by the W.C. Commissioner as available in the lower court records. All the substantial questions of law having been decided against the appellant, this appeal fails. It is accordingly, dismissed. The W.C. Commissioner shall disburse the balance amount to the claimants. 9. Appeal stands dismissed. No order as to costs.