JUDGMENT : 1. Heard Bhanu Bhushan Jauhari for the appellant and Sri Shekhar Srivastava for the claimant. 2. By way of this appeal, the appellant has felt aggrieved by the award passed by Workmen Compensation Commissioner, Meerut, in WCA No.139 of 1999 awarding a sum of Rs. 1,29,168/-in favour of the respondent. 3. While admitting this appeal, this Court did not frame any question of law but ordered that the questions of law framed by the appellant be considered for decision. The appellant has framed the following questions of law:- “(i) Whether the claimant is not entitled for any compensation on the ground that the claimant failed to prove his employment. (ii) Whether the Workmen Compensation Commissioner committed manifest error of law in assessing the loss of earning capacity as 50% in the absence of any disability certificate and in the absence of any evidence of any medical practitioner. (iii) Whether the Workmen Compensation Commissioner committed error of law in awarding the compensation as per Section 4 (1)(c)(II) of the Workmen Compensation Act instead of treating the injury to be under Section 4(1) (d) of the Workmen Compensation Act? (iv) Whether in the absence of disability certificate and in the absence of evidence of any medical practitioner the Workmen Compensation Commissioner can not award any compensation to the complainant for the injury sustained to him? (v) Whether the learned W.C.A. Commissioner wrongly shifted the burden of proof on non-employment of the claimant upon the appellant?” 4. The parties are referred as respondent-original claimant-employee/appellant-original opponent-employer. 5. It is alleged by the claimant in the application that since 1996 he was working as a helper on the cutter machine. On the fateful day i.e. 10.2.1999 when he was working on the said machine, there was an employment injury for which the co-employee and owner got him admitted in Jaswant Rai Speciality Hospital. The expenses for treatment were borne by the employer. When the claimant was injured, his age was 20 years. The wages were Rs.2,000/-per month. The claimant had sent a notice on 25.6.1999 to the employer but no reply nor any amount was paid and, therefore, he preferred the said application. The summons were issued. The claimant filed all necessary documents namely medical certificate of Jaswant Rai Speciality Hospital, the notice which was sent the respondent and was received by employer. 6. The claimant had sent a notice on 25.6.1999 to the employer but no reply nor any amount was paid and, therefore, he preferred the said application. The summons were issued. The claimant filed all necessary documents namely medical certificate of Jaswant Rai Speciality Hospital, the notice which was sent the respondent and was received by employer. 6. The Counsel for the appellant has submitted that the Commissioner came to a wrong conclusion that relationship of employer and employee once denied had to be proved by the employee which was not proved and the burden of proof has been wrongly shifted on the appellant. The documentary evidence was produced so as to show that the claimant was not an employee. Just because there was non-issuance of appointment letter, it can not be said that he was appointed. 7. It is submitted by Counsel for appellant that neither Pramod Kumar nor Ramesh Chandra Yadav, who had got the claimant admitted were examined. The earning capacity under Section 4 of Workmen Compensation Act has to be proved as loss of capacity. It is further submitted that the Commissioner has misdirected himself on the facts and law. 8. As against this, learned Counsel for the claimant has submitted that the claimant had proved that he was in employment. There was employment injury for which he has relied on the Division Bench judgment in New India Assurance Company Ltd. Vs. Mohd. Aslam, 2003 LawSuit (All) 293. More particularly paragraph nos. 7 and 8 so as to contend that the appellant does not deserve to be allowed and sans merits and also has relied on the decision of the undersigned in the case of New India Assurance Company Ltd. Vs. Naresh Kumar and others, 2018 (157) FLR1031. As far as question no.1 is concerned, it is a pure question of fact as to whether the employment was the so called question of law are in fact question of fact. 9. The respondent – appellant examined one Sri C.P. Sharma, who was working with Angan Duplex. He in his original testimony, completely denied the fact that the claimant was ever employed with appellant. The witness accepted the fact in his cross-examination that no employee was ever given any appointment letter nor any Identity-card by employer. He was not aware as to total number of persons were employed. He in his original testimony, completely denied the fact that the claimant was ever employed with appellant. The witness accepted the fact in his cross-examination that no employee was ever given any appointment letter nor any Identity-card by employer. He was not aware as to total number of persons were employed. The witness deposed that he was not the time keeper in February 1999. One Sri Prabhat Chandra Jain was also examined on oath. In his cross-examination, he accepted that he has not got the certificate as to what is his post. He was not aware as to how many shifts the factory was being run. There were about 100 employees. It was the stand of the appellant before the Commissioner through two witnesses that respondent was not employed with them. The Commissioner has accepted the version of the respondent that in the factory, no Identity-card nor any appointment letter is issued. The Commissioner has held that when there are 100 employees and the employer has only given list of 43 employees, it categorically shows that they are not coming before the Commissioner with correct facts. Even the medical bills show that it was the employer who had got the claimant admitted in hospital. This itself shows the finding of fact by the Commissioner which is based on facts. On the basis of these factual aspects, the Commissioner held that the employee was employed with the appellant herein as it found that there was contradiction in the records maintained by employer. 10. The evidence of respondent nowhere states that he was never employed rather Sanjay Gaur, employee of hospital, who has been examined on 27.9.2002, has stated that he is working with Jaswant Rai Speciality Hospital. Pramod was admitted in the hospital on 10.2.1999 and he was treated by one Dr. Sanjay Jain. The admission-sheet, case record and all go to show that he was admitted in the said hospital on the date mentioned by employees of appellant. The appellant herein came up with a case that the claimant was not employed by them. They had not even replied to the notice of the claimant and very belatedly the reply was filed before Commissioner which is a finding of fact. 11. The Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 has held as under : "9. They had not even replied to the notice of the claimant and very belatedly the reply was filed before Commissioner which is a finding of fact. 11. The Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 has held as under : "9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRS sue/s his employer to claim compensation under the Act. 10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once, they are proved either way, the findings recorded thereon are regarded as findings of fact." 1. The Apex Court further went on to hold as under : "15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law. 16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. 16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts. 17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings." 12. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows: "The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis." 13. As far as present appeal is concerned, the so called substantial questions of law framed are questions of facts and the findings of the Commissioner on the said issues are not perverse. In view of the decision of the Apex Court in North East Karnataka Road Transport Corporation Case (Supra) and Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) where also it has been held that under Section 30 of the E.C. Act, 1923, the High Court cannot enter into the arena of facts unless they are proved to be perverse. 14. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) where also it has been held that under Section 30 of the E.C. Act, 1923, the High Court cannot enter into the arena of facts unless they are proved to be perverse. 14. A recent decision of the Apex Court in the case of Mayan Vs. Mustafa and another, 2022 ACJ 524 also holds that the Court cannot interfere unless there is a question of law involved. In our case the injury was during the course of employment. The percentage of injury was decided by the Commissioner. The judgment of Apex Court in Salim Versus New India Assurance Co.Ltd. and another, 2022 ACJ 526 will also not permit this Court to interfere in the well reasoned judgment of the Commissioner. 15. Therefore, the submission of the Counsel for the appellant that there is error on the face of record cannot be accepted. The evidence was on oath by the claimant that there is employer – employee relationship. The employer nowhere denied that he was admitted to the hospital by the other employees. The medical bills were also paid by employer till his discharge is a finding of fact. The disability certificate is not a sine-qua-non but the medical evidence shows that there was crush in his hand and the claimant has sustained loss namely amputation at a young age of 20 years. 16. The award of the learned Commissioner of Workmen Commission Act is perfectly justified to the extent it has been ordered and does not deserve any interference in this appeal. The award should have also awarded penalty under Section 4-A of the Act because the accident occurred on 10.2.1999 on which date itself compensation became due but the respondent – employer having failed to deposit it within one month from 10.2.1999, the Commissioner awarded 10% S.I. on 29.3.2004 under Section 4 (3)(A) of the Act but actual payment were made on 14.5.2004 and 19.5.2004 even though the award had stipulated that the payment to be made within one month from 29.3.2004 thus there being no justification for the delay in making the payment, penalty should have been awarded. 17. On totality and facts and circumstances, this appeal sans merit and is hereby dismissed. The amount kept in Fixed Deposit be paid with interest to the claimant forthwith. The record be sent back to the Tribunal/ Commissioner forthwith.