1976 PLP 316 (PLC)

Legal Objection No. 1.-Pakistan Essential Services (Maintenance) Act was amended by Pakistan Essential Services (Maintenance) (Amendment) Ordinance III of 1965. Section 7-A was inserted which reads as follows: - The provisions of this Act shall have effect, notwithstanding to the contrary contained in the Trade Unions Act, 1926 (XVI of 1926) or the Industrial Disputes Ordinance, 1959 (LVI of 1959) or any other law. On this point the learned Commissioner made the following observa tions In my humble opinion section 7-A has the overriding effect so far as Trade Unions Act, 1926 and Industrial Disputes Ordinance, 1959, or any other law on the subject is concerned but does not have the overriding effect so far as the Workmen's Compensation Act is con cerned. This conclusion in my view is not correct because the words "or any other law" are not confined to Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959. If the interpretation given by the learned Commissioner had been correct then there was no necessity for adding the words "or any other law" because section 8 of the General Clauses Act would have been applicable. In view of the, above this legal objection is upheld. Legal Objection No. 2.-According to section 2(n) of the Workmen's Compensation Act a workman means any person other than a person whose employment is of a casual nature. The point for determination is as to whether the employment of the respondent was of a permanent or casual nature. The learned Commissioner had overruled this objection on the ground that there was no documentary evidence produced to show that the employment of the respondent was of a casual nature. On going through the record I find that the respondent had produced a letter Exh. P-13 dated r'5-7-1971 from the company which reads as follows;- TERMINATION OF SERVICE As the renovation/alteration work on the 5th floor of Monnoo House has been closed your services are being terminated w. e. f. 15-7-1971. We would, however, like to hire you again on any other occasion as and when required. Resumed duty on 18-7-1971. R. W. I. Shakir Husain, Administration Clerk stated that since respon dent was a casual worker, he was not medically examined. He also stated that the respondent has been employed for the following periods From 9-3-70 to 15-2-71 17-2-71 to 15-7-71 and 19-7-71 to 15-3-73 Thus from the above evidence it is clear that the employment of the respondent was of a casual nature and not of a permanent nature. The learned representative far the respondent, however, contended that in order to exclude an individual from the category of workman under the Workmen's Compensation, it has to be established that not only the individual employment was of a casual nature, but also his employment was for a purpose other than that of the employer's trade or business. In support of his contention he relied on the judgment of Dacca High Court in the case "The East Pakistan Water and Power Development Authority, Comilla v. Mohar Ali Saiyal and others" (1) where in it was held In order to exclude an individual from the category of a workman he must suffer from two defects, that is to say, he must be, firstly, a person whose employment is of a casual nature, and, secondly, that his employment should be for a purpose different from the employer's trade or business the word and in clause (n) of section 2 (1970 P L C 747) of the Workmen's Compensation Act, 1923 is conjunctive and cannot be treated disjunctively, that is to say, the existence of one of the factors will not exclude a person from the category of a worker; it must be shown that the person's employment w ., casual in nature and the same was other than employer's trade of business. In the present case the appellant company's trade or business is to supply Sui Gas and not to erect buildings, therefore the respondent's employment was for a purpose other than that of the appellant company's trade or business. This ruling, therefore, is of no help to the respondent. In the result this objection is upheld.

5. I, accordingly, accept the appeal, set aside the order of the learned Commissioner, and dismiss the application filed by the appellant.