1991 PLP 259 (PLC)

3. I have heard Mr. Izhar Alam Farooqi, learned Advocate for the appellants and Mr. Allana Hingoro, learned Representative for the respondent and have also gone through the record and proceedings of the case.

4. The learned Commissioner has considered the evidence led by the appellants with regard to the case that the deceased Muhammad Rafiq was a daily wage clerk. He has pointed to the admissions of the witness of the appellants who had admitted that he had not brought the relevant record to show that the deceased was on daily wage basis and what were his daily wages. He was not even sure as for how much time the deceased had been working with the appellants. The relevant record showing the status of deceased Muhammad Rafiq and his wages, would be in the possession of the appellants and its non production would raise presumption against them. .

5. It is not disputed that the appellants import fertilizer which is unloaded from the ship and then sent to the up-country through road transport and train. It is also not disputed that deceased Muhammad Rafiq was Tally Clerk employed in connection with loading and unloading and handling of imported fertilizer and the accident did take place during this process. Workman, as defined in section 2(1)(n) of the Act to mean, as under:- "2(1)(n) "Workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is - (i) a railway servant as defined in Section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub -divisional office of a railway and not employed in any such capacity as is specified in Schedule 2, or (ii) employed on monthly wages not exceeding one thousand five hundred rupees in any such capacity as is specified in Schedule II." Schedule 2(xxvi) which would be relevant, provides as under:- "The following persons are workmen within the meaning of section 2(1)(n) and subject to the provision of that section, that is to say, any person who is (xxvi) employed in the handling or transport of goods in or within the precincts of - (a) any warehouse or other place in which goods are stored and in which on any one day of the preceding 12 months 10 or more persons have been so employed, or (b) any market in which on any one day of the preceding 12 months, 100 or more persons have been so employed:" The bare reading of these two provisions would show that the deceased Muhammad Rafiq was covered by the definition of `workman' as defined under section 2(1)(n) read with Schedule 2(xxvi).

6. The question as to whether a clerk could be considered as a `workman' was considered by the learned Single Judge of West Pakistan High Court, Karachi, in the case of Hasham v. Saeeda Begum, reported in 1963 P L C 141, which decision has also been relied upon by the learned Commissioner in the impugned order. His Lordships had compared the language of Clause (xxvi) of Schedule 2 with Clauses (x), (xiv), (xix), (xxviii) and (xxix) of the Workmen's Compensation Act, 1923, where a person employed in a clerical capacity had been excluded from the category of workman, whereas there was no such specific exclusion in the definition of workman under clause (xxvi). His Lordship, therefore, came to the conclusion that words "persons employed in the handling or transport of goods" were wide enough to include the clerks who were employed in the godown. In the opinion of the learned Single Judge, the language of the Statute has to be so construed as shall supress the mischief and advance the remedy". I am in respectable agreement with the above view expressed by the learned Single Judge of the High Court.

7. I have already pointed that no reliable evidence has been produced by the appellants before the learned Commissioner to show that the employment of the deceased Muhammad Rafiq was of casual nature or he was drawing monthly wages exceeding Rs.1,500, therefore, in my opinion, he was a workman as defined under the Act.

8. It may be pointed that Act, 1923 was amended and words "otherwise than in a clerical capacity" in clauses (x), (xiv) and (xix) have been omitted under Act XIV of 1973. It may also be pointed that under clause (xiii-a), which was added to the Schedule 2 by Notification, dated 20-10-1949; the persons employed as Treasurer Clerk performing outdoor duties in the Pakistan Posts and Telegraphs Department in Balochistan and the Karachi Division were considered `workmen'. The intentional omission of words "otherwise than employed in a clerical capacity" from certain Clauses of Schedule 2, would clearly indicate the intention of the Legislature to bring clerks within the definition of "workmen" as it would be in consonance with the definition of "workman" under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; under which clerks are "workmen".

9. No other issue has been agitated by the appellants, therefore, I find no substance in the appeal which is dismissed. M.Y.H./1706/Lb.S Appeal dismissed