2009 PLP 39 (PLC)

ARSHAD NOOR KAHN, J.

By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the order dated 30-5-2006, passed by the learned Presiding Officer of the Court of Commissioner Workmen's Compensation and Authority under the Payment of Wages Act, Hyderabad, (hereinafter referred to as the "lower Court"), whereby the claim of the respondent No.1 about compensation and group insurance to the tune of Rs.1,40,000 each has been accepted.

2. The facts as stated in the petition are that, the respondent No.1 was the employee of the petitioner and appointed on 3-3-2004 under the capacity of "Doffer" on the monthly pay of Rs.2,650 with other usual allowances. It is further stated in the petition that after completion of his probationary period of three months, the respondent No.1 became a permanent workman within the purview of labour laws applicable to the parties. It is further stated in the petition that on 5-3-2004, the respondent was performing his duty and suddenly his right arm came under the machine during the course of employment/duty and his right arm was amputed from below at 11-45 p.m. The Mills management took the respondent No.1 to the Social Security Hospital Nooriabad. After first aid treatment the mill management took him to Karachi and admitted him in Sindh Employees Social Security Institution Kulsoom Bai Valika S.I.T.E. Hospital, Mangopir Road, Karachi, on 6-3-2004, wherefrom he was discharged on 12-4-2004. The respondent No.1 claimed compensation amounting to the tune of Rs.1,60,000 for his becoming incapable to perform his duties by one hand, as well as insurance to the tune of Rs.160,000 and filed such application before the respondent No.2. The petitioner was served and appeared before the respondent No.2 and filed written statement, inter alia, admitting the status of respondent No.1 as workman and have also admitted the incident in the manner alleged by the respondent No.1, but has raised the plea that by virtue of section 10-B of the Industrial and Commercial Employment (S.O) Ordinance 1968, (hereinafter shall be referred to as the "Ordinance 1968"), the respondent No.1 is not entitled for group insurance, as he was not the permanent workman. The parties filed their affidavits in support of their respective claims, and were cross examined by the respective opposite parties and the learned lower Court after hearing of the learned counsel for the parties accepted the claim of the respondent No.1 to the tune of Rs.1,40,000 as compensation and Rs.1,40,000 as group insurance vide order dated 30-5-2006. The petitioner being aggrieved and dissatisfied with the order passed by the learned lower Court has preferred the present petition.

3. I have heard Mr. Mehmood Hussain Siddiqui, learned counsel for the petitioner and Miss Nasim Abbasi, learned counsel for respondent No.1.

4. Mr. Mehmood Hussain Siddiqui, learned counsel for the petitioner vehemently contended that the respondent No.1 was not the permanent workman under the petitioner and therefore, under the provisions of section 10-B of the Ordinance, 1968. The respondent No.1 is not entitled to claim any insurance from the petitioner and the claim of the respondent No.1 regarding insurance has been wrongly accepted by the learned lower Court and the lower Court exceeded from the jurisdiction vested in it by allowing the said insurance to the respondent No.1. Learned counsel, however, candidly admitted that the respondent No.1 is entitled for compensation for having become disable because of amputation of his hand and, therefore, he did not attack upon the finding of lower Court on the point of compensation awarded to the respondent No.1 because of his permanent disability. In support of his contention, learned counsel has relied upon the case of Karachi Transport Corporation, Karachi v. Kajeer Khan and another 1993 PLC 296.

5. Miss Nasim Abbasi, learned counsel for respondent No.1 vehemently contended that the status of respondent No.1 being permanent workman under the petitioner, has been admitted by the petitioner, which has not been disproved in any manner, as such the said admission is sufficient: for allowing the claim of the group insurance to the respondent No.1. In support of her contention, she has relied upon the cases of Messer Fauji Sugar Mills Ltd. v. Sher Muhammad and another 1997 PLC 538 and Muhammad Habib Khan v Pakistan Tobacco Company Ltd. and another PLD 1991 SC 183.

6. I have considered the argument advanced on behalf of the parties and perused the material available before me.

7. The learned counsel for the petitioner has admitted that the respondent No.1 had sustained severe injuries during the course of employment/duty and while performing his duty under the petitioner, he sustained fatal injury resulting in amputation of his hand, therefore, the respondent No.1 is entitled for the compensation and he will not attack on the finding of learned lower Court so far as the claim of compensation claimed by the respondent No.1 is concerned.

8. Since the learned counsel for the petitioner has not challenged the finding of the learned lower Court regarding entitlement of respondent No.1 for compensation I would dilate upon the second limb of arguments advanced by learned counsel for the petitioner viz. the entitlement of respondent No.1 about group insurance. Admittedly, under section 10-B of the Ordinance, 1968, a permanent workman is entitled for group insurance if, he sustained injury during the course of his employment with his employer and suddenly becomes permanently disable because of such injury. The status of the respondent No.1 has been disputed by the petitioner during the course of the arguments to which learned counsel for the respondent No.1 has refuted and has taken me to para.2 of the present petition, wherein the petitioner has himself admitted the respondent No.1 to be a permanent worker under him working in the capacity of "Doffer" since 3-3-2004. Learned counsel for respondent No.1 has also pointed out para-3 of the main application filed by the respondent No.1 before the learned lower Court, wherein he reiterated that after completion of his probationary period of three months he became a permanent workman as per labour laws applicable on the respondent (petitioner) establishment. Para.3 of the main application has been admitted by the petitioner in para.3 of his written statement before the learned lower Court, therefore, no element of doubt remains in the status of respondent No.1 being permanent workman within the meaning of section 10-B of the Ordinance, 1968 and since the respondent No.1 is permanent workman under the petitioner and he sustained fatal injury during the course when he was performing his duty with the petitioner, as such, in my humble opinion he was entitled for the group insurance also, as he claimed from the petitioner, therefore, the learned lower Court has rightly held him entitled for such insurance. In the case law 1997 PLC 538 the Appellate Tribunal was pleased to observe that "Benefits under Standing Order 10-B of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were entirely different from compensation for injury under Workmen's Compensation Act, 1923 and one could not exclude the other." In the case of Muhammad Habib (supra), the Honourable Supreme Court was also pleased to observe that "similarly for the same reason, it will be difficult to hold that Labour Court would not be the exclusive forum for adjudication of the claim under Standing Order 10-B, inasmuch as the special remedy under section 25-A of Industrial Relation Ordinance, 1969 would be only available to the workman, whereas a claim under Standing order 10-B was admissible to the workman as well as, in the case of his death, his heirs." The case law relied upon by the learned counsel for the respondent No.1, therefore, completely support the case of the respondent No.1. No evidence available on record to consider the arguments advanced by the learned counsel for the petitioner that the respondent No.1 was not the permanent worker under the petitioner, on the contrary, the status of the respondent No.1, as observed above, has also been admitted by the petitioner in the present petition, therefore, the case of Karachi Transport Corporation, Karachi v. Kajeer Khan and another, in my humble opinion, is not helpful to the case of petitioner and is distinguishable from the circumstances of the present case.

9. After appraisal of the whole material available on record I am of the firm opinion that the respondent No.1 is permanent workman under the petitioner and he sustained fatal injury while performing his duties, thereby depriving him of his right arm below the elbow, which permanently disabled him, as such, he is entitled for group insurance as claimed by him and allowed by learned lower Court and I do not find any illegality or infirmity in the order passed by the learned Court.

10. The petition was dismissed by a short order dated 15-9-2008, which is usefully quoted hereinbelow for the sake of convenience:

"For the reasons to be recorded later on petition is dismissed. The compensation of insurance allowed by the learned trial Court in favour of respondent No.1 shall be deposited by the petitioner within a period of 15 days hereof before the learned trial Court." The above are the reason of the aforesaid short order. H.B.T./K-29/K Petition dismissed.