2000 PLP 161 (PLC)

The predecessor of respondent No. l namely Ghulam Qadir, who was a permanent employee of Sindh Road Transport Corporation, during the course of his employment, was declared medically unfit for employment as a watchman by the civil surgeon on account of his weak eyesight. He requested for his retirement and payment under Standing Order 10‑B but was not allowed to retire at that time because his retirement was due after six months. When petitioner refused to pay the medical expenses and the Group Insurance amount under Standing order 10‑B of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, Ghulam Qadir on or about 5‑12‑1992 filed an application before the Commissioner, Workmen's Compensation, Hyderabad, for recovery of compensation under Standing Order 10‑B and Rs,5,000 towards his medical expenses.. The Commissioner after recording evidence by order dated 14‑9‑1994 directed the petitioner to deposit Rs.42,000 being the Group Insurance amount payable under Standing Order 10‑B for the disablement suffered by him and Rs. 5,000 towards reimbursement of medical expenses (total Rs.47,000). Being aggrieved by the aforesaid order, the petitioner has filed this Constitutional petition challenging the order of the Commissioner for Workmen's Compensation (respondent, No.2 herein). It is pertinent to mention that while the proceedings before the Commissioner were in progress, Ghulam Qadir expired and consequently the Constitution petition has been filed against his legal heir (respondent No 1 herein). The controversy revolves around interpretation of Standing Order 10‑B the relevant provisions of which read as follows: "10‑B. Compulsory Group Insurance.‑(1) The employer shall have all the permanent workmen employed by him insured against natural death and disability and death and injury arising out of contingencies not covered by the Workmen's Compensation Act, 1923 (VIII of 1923), or the Provincial Employees' Social Security Ordinance, 1965 (W.P. Ordinance No. X of 1965). (2) The employer shall in all cases be responsible for the payment of the amount of premium and for all administrative arrangements whether carried out by himself or through an insurance company. (3) The amount for which each workman shall be insured shall not be less than the amount of compensation specified in Schedule IV of the Workmen's Compensation Act, 1923 (VIII of 1923). (4) Where the employer fails to have a permanent workman employed by him insured in the manner laid down in clauses (1), (2) and (3) and such workman suffers death or injury arising out of contingencies mentioned in clause (1) the employer shall pay, in the case of death, to the heirs of such workman; or in the case of injury, to the workman, such sum of money as would have been payable by the insurance company had such workman been insured." Mr. Rafique Ahmed, learned counsel for the petitioner urged several grounds to challenge the impugned order but on perusal of the same it appears that all of them were discussed and rejected by the learned Commissioner in his order. On going through the record, I find that Ghulam Qadir was declared medically unfit because of weakness of his eyes. According to the Medical Certificate, dated 6‑10‑1992 filed by the petitioner with the petition. Ghulam Qadir was declared to be completely and permanently incapacitated for further service of any kind in consequence of Marked Defective Vision. He was 59 years old at that time. The certificate is signed by two doctors who were members of the Standing Medical Board, Hyderabad. On the basis of the said Certificate the Commissioner came to the conclusion that though the disability of vision was not the result of any injury but it had arisen out of contingency not covered by the Workmen's Compensation Act, 1923 and as the petitioner had not insured the said permanent employee for such contingency as required by Standing Order 10‑B, he held that the petitioner was entitled to Group Insurance payment in accordance with the provisions of Standing Order 10‑B and that keeping his claim intentionally pending until his age of superannuation was mala fide on the part of the petitioner. The main argument of the learned counsel for the petitioner which is also stated as ground No.2 is that Ghulam Qadir is not entitled to claim the amount on account of disability under Standing Order 10‑B(4) as held in 1993 PLC 296 (Karachi Road Transport Corporation v. Kajeer Khan). In the said judgment Mr. Justice Mamoon Kazi (as he then was) relying upon the case of Pakistan Tobacco Company v. Muhammad Siddique, 1978 PLC 363 decided by the Sindh Labour Appellate Tribunal on 6th August, 1977 came to the conclusion that the words used in Standing Order 10‑B were death or injury and not disability and because of the omission of the word "disability" from clause (4) of the Standing Order, the workman could not file a claim on account of any disability from natural causes suffered by him. Consequently, he held that the disability in question was not covered by Standing Order 10‑B (4). The case of Karachi Road Transport Corporation v. Kajeer Khan, 1993 PLC 296, was decided by his Lordship on 12‑2‑1992. It appears that the counsel appearing for both parties in the Kajeer's case did not bring to the attention of the Court the fact that the judgment in Pakistan Tobacco Company v Muhammad Siddique, 1978 PLC 363, had been reversed by a Division Bench of the High Court of Sindh by judgment dated 13‑2‑1979 which was reported as Muhammad Siddique v. Sindh Labour Appellate Tribunal in PLD 1979 Karachi

560. In the said judgment the learned Division Bench applying the rule of beneficial construction had held that the disability arising out of natural causes was included in Standing Order 10‑B and ordered the employer to pay the Group Insurance amount to the employee who had been declared unfit for employment on account of natural disability as the employer had failed to take out Group Insurance for such contingencies as required by Standing Order 10‑B. Had the judgment of the Division Bench of the High Court been brought to the attention of the learned Single Judge he would not have passed the said judgment contrary to the judgment of the Division Bench. It may be mentioned here that later in similar circumstances in Muhammad Habib Khan v. 'Pakistan Tobacco company, PLD 1991 SC 183, the Honourable Supreme Court ordered payment under Standing Order 10‑B to the employee who had been found medically unfit on the basis of disability of eyesight. The learned counsel for the petitioner instead of citing the Division Bench Judgment of the High Court of Sindh and the Supreme Court Judgment on the point in issue has in his pleadings referred to the judgment, which has been reversed twenty years ago and also cited the same in support of his arguments. The facts of the present case are similar to the facts of the supreme Court case of Muhammad Habib Khan v. Pakistan Tobacco Company and the law laid down therein is applicable to the present case. This petition is mala fide and accordingly dismissed and petitioner is directed to deposit Rs.47,000 with respondent No. l within 60 days hereof. The law relating to disability and compensation under Standing Order 10‑B had been settled by two authoritative judgments of the superior Courts, namely, Muhammad Siddique v. Sindh Labour Appellate Tribunal, PLD 1979 Karachi 560 and Muhammad Habib Khan v. Pakistan Tobacco Company, PLD 1991 SC 183 and yet the present petition was filed relying on a judgment which had been reversed. It would be appropriate to mention here that Advocates as officers of the Court are duty bound to assist the Court in the administration of justice by placing the latest law on the question in issues in a matter. Under rule 161 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, relating to Canons of Professional Ethics and Etiquette of Advocates an advocate shall not intentionally cite as authority a decision that has been overruled. Any dereliction of such duty would amount to improper conduct for which the Bar Council can take action against the advocate and the client can sue him for damages. It is apparent that in this case the counsel did not act prudently by checking and presenting before the Court the latest law on the point in issue. It is hoped that in future he will act prudently. In view of the above position it is abundantly clear that this petition is patently mala fide and ought not to have been filed. Respondent No. l has been deprived of the benefit of the Group Insurance payment prima facie because of the present Constitution petition. Consequently, petitioner shall also pay compensation for every day of delay in payment of the decretal amount with the Commissioner at the rate of 12 per cent per annum of Rs.47,000 from the date of the impugned order i.e. 14‑10‑1994 till the date of deposit with respondent No.2. In case petitioner does not deposit the said amount as directed above within 60 days from the date of the announcement of this judgment, the Commissioner for Workmen's Compensation is hereby directed to recover the same as arrears of land revenue without notice to the petitioner. Thereafter, respondent No.2 shall ensure payment of the aforesaid amount to respondent No. l forthwith and submit compliance report to the High Court within two months thereof. Office is directed to expeditiously send a copy of this order for compliance to respondent No.2. C.M.A./S‑243/K Petition dismissed