2008 PLP 304 (PLC)

ALI SAIN DINO METLO, J.

The dispute is over compulsory group insurance compensation amounting to Rs.100,

000. On 6-8-2001, Mst. Gul Fareen Jana (respondent No.1) filed application, bearing No.21 of 2001, under Standing Order 10-B of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, before the Commission for Workmen's Compensation, West Division, Karachi (respondent No.2) for directing Messrs Sentinel (Pvt.) Ltd. Karachi (the petitioners) to pay the compulsory group insurance compensation to the legal heirs of their employee and her husband late Muhammad Haroon, contending that the deceased, while in their service Security Guard, died on 31-1-2001, in a road accident, leaving behind one widow (respondent No.1), four sons, namely, Meraj Muhammad Khan, Amriaz Khan, Naeem Khan and Shehzad and three daughters, namely, Balgees, Mohrrangeza and Sumaira as his only surviving legal heirs. According to her, the petitioners were providing security services to various industrial, commercial and other organizations and persons on commercial basis by employing Security Guards numbering more than 100.

2. The respondent No.1 further contended that the petitioners employed her husband as Security Guard in February, 2000, and posted him at Atlas Factory, S.I.T.E., where he performed his duty for about eight months, and thereafter he was posted at Messrs Saba Textiles where he performed his duty till the date of his meeting with a road accident on 29-1-2001 as a result of which he died in hospital on 30-1-2001 due to serious head injury.

3. In their written statement the petitioners admitted that they were engaged in providing security service on commercial basis to various persons, organizations, including Messrs. Saba Textiles to whom they were providing two guards daily under an agreement. However, they denied that the number of their employees was more than

100. According to them, their number was less than

50. They further contended that the respondent's husband was appointed as Security Guard on 29th July, 2000 but he had left the job on 30-10-2000 and, therefore, they were not obliged to pay the compulsory group insurance compensation to his heirs as at the time of his death he was not their employee.

4. Both the parties produced their respective evidence before the respondent No.2. The respondent No.1 examined herself; while the petitioners examined their Resident Director, Major (R.) Abdul Waheed. The respondent No.2, by his order dated 19-1-2004, held that the respondent No.1's husband, at the time of his death, was petitioners' employee and they were liable to pay the compulsory group insurance compensation to his legal heirs.

5. The petitioners challenged the order by filing a petition, bearing No.108 of 2004, under Article 199 of the Constitution, 1973, and this. court, by order dated 14-12-2005, remanded the case to the respondent No.2 for fresh decision within two months by recording further evidence as might be produced by the parties specifically mentioning that "before leading the evidence both the parties will file a list of their witnesses together with list of documents relied upon".

6. The respondent No.1 filed the list of witnesses together with the list of documents relied upon in compliance with the order of this Court and produced her evidence. The petitioners did not file any list of witnesses or of the documents and did not produce any evidence. However, after the close of evidence by the respondent No.1, the petitioners' Advocate filed an application on 15-8-2006, for summoning the "Investigating Officer of Police Station, S.I.T.E., Karachi West, to produce certified copies of F.I.R. No.23/2001 under section 320 Q&D Ordinance and all related evidence of Sessions Case No.193 of 2001, State v. Zafar Ali Khan pending in the Court of District and Sessions Judge, Karachi West as the contention and evidence of the applicant cannot be decided in absence of aforesaid documents".

7. The respondent No.2 declined to summon the Investigating Officer, mainly because certified copied of the documents, including the F.I.R, were already produced on record and the petitioners had not given any list of witnesses or of documents, and decided the matter on 27-1-2007, again directing the petitioners to pay the compensation to the legal heirs of the deceased. According to his findings, the deceased was employee of the petitioners and his legal heirs were entitled to the compulsory group insurance compensation. He did not believe petitioners' version that the deceased had left the job before his death. According to him, they had set up a false story of leaving the job only to save rupees one lac. He also did not believe petitioners' version that the number of their .employees was less than

50. According to him, the petitioners did not produce record of their employees because they very well knew that their number was more than 49.

8. Standing Order 10-B, read with the second proviso to subsection (4) of section 1 of the Ordinance, requires an employer i.e. the owner of an industrial or commercial establishment, employing 50 or more persons, to have, at his expense, all his permanent workmen insured for an amount not less than the amount of compensation specified in Schedule IV of the Workmen's Compensation Act, 1923, which at the relevant time was Rs.1,00,

000. In case of his failure to do so, he shall himself pay the compensation to the Workman in case of injury and to his heirs in case of his death.

9. Admittedly, the petitioners did not get the deceased insured with any insurance company and denied their liability to pay the compensation to his heirs on the grounds that: (a) the deceased was not their permanent workman and had left the job before his death; and (b) the number of their employees was less that 50.

10. In their attempt to prove their contentions the petitioners, through their Resident Director Major (R) Abdul Waheed, produced copy of their letter/verification form dated 29-7-2000, addressed to the Station House Officer, for verification of deceased's antecedents, bearing endorsement, dated 30-10-2000, to the effect that he had received his identity card on leaving the job. However, in his cross-examination he stated that their Operation Manager was responsible for hiring and firing the guards and he was simply informed by him that the deceased had left the job before his death.

11. Standing Order 12(3) provides that service of a workman shall not be terminated nor shall a workman be retrenched, discharged or dismissed from his service except by an order in writing stating the reasons. The standing Order speaks of all the workmen without any distinction of permanent and temporary workman. The contention of the petitioners that the deceased was verbally discharged on his own request, being in violation of Standing Order 12(3), is not tenable in law.

12. Moreover, the author the endorsement and the person in whose presence the deceased employee had put his signature on the verification form were also not examined and, therefore, it carried no evidentiary value. In such circumstances, the respondent No.2 rightly concluded that the deceased at the time of his death was employee of the petitioners and the story about his leaving the job had been falsely set up by them only to save the amount of rupees one lac. In the case of Messrs. Pakistan Steel Mills Corporation Ltd., Karachi v. Shah Azmat, reported in 1994 PLC 626, the Labour Appellate Tribunal Sindh, did not accept the Steel Mills' contention that their temporary employee Shah Azmat had left the service of his own, observing that the contention was in violation of the Standing Order 12(3).

13. As regards the number of petitioners' employees, the record was with them. Instead of producing the record and giving the exact number of their employees, they resorted to evasive statements. In their written statement they stated that the number of their employees was less than 50 and in his evidence their Resident Director stated that their number was 23 to 30 or

35. In such circumstance, the respondent No.2 rightly concluded that the petitioners withheld the record and resorted to evasive statement only because the number of their employees was more than 50.

14. There is no force in the contention of the learned counsel for the petitioners that the respondent No.1 failed to prove that her husband, at the time of his death, was permanent workman of the petitioners or that the number of petitioners' employees was more than

49. It is petitioners own case that they had employed the respondent No. 1's husband as Security Guard more than three months before his death. The work of a Security Guard was undoubtedly of permanent nature likely to last for more than nine months. The petitioners have failed to prove that the deceased had left the job before his death. In such circumstances, it is clearly established that the deceased at the time of his death, was permanent workman of the petitioners.

15. It was within the exclusive knowledge of the petitioners as to what was the number of their employees but they avoided to give the exact number of their employees and also withheld the record which was in their exclusive possession. The only inference which can be drawn in such circumstances will be that the record contained material against their contention and the respondent No.2 has rightly held that they did not produce the record only because they knew that the number of their employees was more than

49. According to Article 122 of Qanun-e-Shahadat, 1984, the burden of proving a fact specially within the knowledge of any person ' is upon that person and according to illustration (g) of Article 129 (ibid), the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.

16. In the case of Shanker Rao and others v. Kamtaprasad Govindprasad Agarwal and others, reported in AIR (34) 1947 Nagpur 129, a Division Bench of the Court has very aptly explained the principle regarding the burden of proof and withholding of evidence in the following words:

"No party should be allowed to take advantage of an abstract doctrine as to the burden of proof and conceal from the Court the evidence in its own possession which would assist the Court in arriving at a correct decision. In this case the burden of proof lay on the defendants. We are entitled to hold that the plaintiffs having failed to produce the accounts books in their own possession have made the task of the defendants easy, and we are justified in holding that had those accounts books been produced they would have proved the case of the defendants."

17. Learned counsel for the petitioners seriously objected to the way the respondent No.2 decided the matter. According to him, he decided the case without passing any separate order on the application of the petitioners for summoning the Investigating Officer and without allowing them opportunity to produce further evidence for which the matter was remanded by this Court.

18. I am afraid, the argument is simply specious. The respondent No. 1 had been running from pillar to post for the last about seven years. Her husband died in January, 2001 and she approached the respondent No.2 for the group insurance compensation in the same year. The respondent No.2 after recording evidence, whatever was produced by the parties, allowed her claim on 19-1-2004 i.e. after three years. However, in the C.P. bearing No.108 of 2004, filed by the petitioners, this Court, by order dated 14-12-2005, remanded the case back to the respondent No.2 for fresh decision, after recording further evidence as may be produced by the parties. Being conscious of the inordinate delay, which had already occurred, the respondent No.2 was directed to dispose of the matter within two months and the parties were bound to file a list of their witnesses together with list of documents before leading their evidence. The respondent No.1 complied with the direction and filed list of the witnesses as well as the documents and produced her further evidence; while the petitioners neither gave the list of their witnesses nor the list of any documents. However, after the close of respondent No.1's evidence they applied for summoning the Investigating Officer of the accident case without showing the relevance of his evidence. It was not the case of the petitioners that the respondent No.1's husband had not died. Guilt or innocence of the bus driver was also not in issue before the respondent No.2. Besides, certified copies of the F.I.R., inquest report etc. had been produced on record by the respondent No.1. The application being frivolous and meant only to protract the proceedings deserved summary rejection.

19. In absence of the list of witnesses and the list of documents, the petitioners, in terms of the order of this Court, could not lead any further evidence. However, to a query as to what further evidence the petitioners wanted to produce, their learned counsel replied that they wanted to examine some of their security guards to say that the deceased had left the service before his death and that the number of their employees was not more than

49. I am afraid, in the wake of withholding the entire documentary evidence in their exclusive possession and power, the oral evidence of the security guards even if it was recorded, would have carried no value.

20. The' scope of writ jurisdiction regarding finding of facts given by a competent forum is also very limited. The findings of respondent No.2 are based upon evidence and reason and, therefore, cannot be interfered with in exercise of writ jurisdiction. The question of sufficiency or insufficiency of evidence cannot be gone into, nor reappraisement of evidence can be undertaken. The finding as well as the order of the respondent No.2 being unexceptionable, cannot be questioned in writ jurisdiction. It was for these reasons that, by a short order passed on 28-3-2008, the petition was dismissed with no order as to costs and the amount deposited with the Nazir was directed to be paid to the respondent No.1 after 60 days on production of succession certificate. H.B.T./S-33/K Petition dismisse