2019 PLP 18 (PLC)

SYED ARSHAD ALI, J.

Through the present writ petition, petitioners seek the Constitutional jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 praying that:-- "It is, therefore, respectfully prayed that on acceptance of instant writ petition the impugned order may graciously be set aside and the claim application filed by the respondents may kindly ordered to be dismissed. "

2. Brief but relevant, facts of the instant case are that respondents Nos. 2 to 7, being legal heirs of deceased Muhammad Hamayun, a winch operator with the petitioners' corporation at Balakot, filed an application on 15.03.2007 for recovery of group insurance and gratuity of their predecessor (who died during his service) before the Commissioner Workmen's Compensation. The respondents in their application asserted that their predecessor was appointed as winch operator with the petitioners' corporation vide letter dated 13.09.2006. The genesis of the claim of legal heirs of the deceased was that the petitioners' corporation had failed to insure the deceased as required under Standing Order 10-B, contained in the Schedule to West Pakistan, Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (hereinafter referred as "Ordinance") and on their failure to insure the predecessor of respondents, the petitioners' corporation was under statutory obligation to pay to the bereaved family an amount equal to compensation which would have been paid by the insurance company in case of death of the deceased. They also claimed for gratify payable to the deceased. On being summoned, petitioners appeared and contested the claim of respondents Nos. 2 to 7 by submitting their written reply wherein they had raised objection regarding applicability of the Ordinance to the claim of the legal heirs of deceased and further alleged that the deceased Muhammad Hamayun was employed on purely temporary basis for a specified period, therefore, he was not entitled to any benefit qua compensation for insurance. The Commissioner Workmen's Compensation from divergent pleadings of the parties framed issues and allowed the parties to produce their evidence. Aamir Khalil, Deputy Forest Manager, Balakot, who appeared as PW-l, produced certain record regarding the service of the deceased. Muhammad Yousaf, representative of respondents Nos. 2 to 7, appeared as PW-2 in support of the claim of legal heirs of deceased whereas Sabir Sultan son of Hussain, ex-winch operator, appeared as PW-3 and confirmed that the deceased was appointed as winch operator in September, 2002 and worked with the petitioners' corporation till 12.09.2006, however, he died during service while carrying official post (dak) to Balakot. Similarly, Riaz Mahmood, Assistant Manager Legal, NWFP Forest Development Corporation, Abbottabad appeared on behalf of the petitioners in support of defence of the petitioners. The Commissioner Workmen's Compensation after hearing arguments of learned counsel for the parties vide order dated 20.10.2011 allowed the application of the respondents Nos. 2 to

7. The said order has been challenged by the petitioners through the present writ petition.

3. Learned counsel for petitioners, Mr. Abdul Rehman Qadir, Advocate, has argued that the provisions of Standing Orders l0(B) and 12(6) of the Ordinance, binds the employer only to insure its permanent workmen and since the deceased Muhammad Hamayun was a temporary employee, therefore, the petitioners' corporation was not bound to insure the deceased. The learned counsel also argued that since the petitioners' corporation has framed statutory rules, therefore, the provisions of Standing Orders, which includes compulsory insurance of its employees, is not applicable to the petitioners corporation. The learned counsel placed reliance on the judgment dated 07.4.2011 passed by this Court in W.P. No. 75 of 2005. The last limb of his argument was that since there is no declaration from competent forum that deceased was permanent workman, therefore, in a collateral proceedings, the Commissioner Workmen's Compensation could not declare him as permanent workman and in this regard the learned counsel has placed reliance on case of Lawrencepur Woollen and Textile Mills Ltd. v. Government of the Punjab and others (PLD 2004 SC 416). On the other hand, learned counsel appearing on behalf respondents argued that the post against which deceased was working was a permanent post whereby the deceased had continuously performed his duties since Sept 2002 till 2006, however, the petitioners' corporation, in order to frustrate the mandatory provisions of the Ordinance, would issue appointment letter in favour of the deceased for a period of 88 days and on expiry of each term a new appointment letter would be issued for further 88 days, thus, for all practical and legal purposes the deceased was permanent workman, therefore, Commissioner Workmen's Compensation has rightly decided the claim of the respondents Nos. 2 to

7. He placed reliance on 2002 TDC 377, PLD 1996 SC 610, 1996 PLC 618, 1997 PLC 323, 1998 PLC 517 and 2008 PLC 464.

5. Arguments heard and record perused.

6. Under Standing Order 10-B of the Ordinance it is mandatory on the employer to insure all the permanent workmen who have been employed by him against (natural death and disability and) death and injury arising out of contingencies not governed by the Workmen's Compensation Act, 1923 and the employer shall in all cases be responsible for payment of amount of premium and for all administrative arrangements whether carried out by himself or through an insurance company. Under clause 4 of the Standing Order l0-B of the Ordinance, it has been envisaged that where the employer fails to have a permanent workman employed by him insured in the manner laid down and such workman suffers death or injury arising out of the contingencies, the employer shall pay, in the case of death to the heirs of such workman, such sum and money as would have been payable by the insurance company, had such workman been insured. Similarly, clause 5 of Standing Order 10-B of the Ordinance further postulates that all claims of workmen or heirs shall be settled under the provisions of Workmen's Compensation Act, 1923.

7. The main stress of the learned counsel for the petitioner corporation was that the deceased Muhammad Humayun was not a permanent workman and was only employed for 88 days and since the deceased was not a permanent workman, therefore, the present petitioner corporation was not obliged to have him insured. This Court is not in consonance with the assertions of the learned counsel. The various categories of the workmen have been defined in Schedule to the Ordinance which provides the definition of permanent workmen as:- (b) A "permanent workman" is a workman who has been managed on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment [and includes a badil who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months.]"

8. While it transpire from the record that the appointment letter dated 26.06.2006 shows that the deceased Muhammad Humayun was appointed for 88 days. However, it is also on the record that Muhammad Humayun deceased was initially appointed on 15.06.2002 against the post of winch operator and since then he has been performing duties against the said post which means that the post against which he was working was a permanent sanctioned post. Thus, issuing appointment letter to the deceased, Muhammad Humayun, for 88 days on contract appointment, clearly means that the petitioners had the intention to avoid their statutory obligation provided under the Ordinance. Indeed, the artificial break created by the petitioner corporation, by issuing fresh appointment letter for his appointment for 88 days and then issuing another fresh appointment letter for another 88 days to the deceased, is based on mala fide and the adoption of such methods to wriggle out of its statutory obligation cannot be approved. The August Supreme Court of Pakistan in its recent judgment in case titled Board of Intermediate and Secondary Education DG Khan v. Muhammad Altaf and others (2018 SCMR 325) has held that the artificial gap created by an institution in the continues service of its employees wherein employment contracts were terminated after every 89 days and were resumed a day there after was based on mala fide. Therefore, for all practical purposes, the deceased Muhammad Humayun, was a permanent employee and it was incumbent upon the petitioners to have insured him against natural death etc. and by omitting to do so, the petitioners are liable to compensate the legal heirs, as provided under the law.

9. Now, adverting to the second objection of the learned counsel for the petitioners that since the petitioners' corporation are governed by the statutory rules, therefore, the mandatory provisions of the Ordinance are not applicable as provided under proviso to section 1 of the Ordinance, which reads as:- "

1. Short title, extent and commencement.

(1) This Ordinance may be called the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. (2)

(3)

(4) It applied to-- (a) every Industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months ; (b) . (c) such classes of the Industrial and commercial establishments as Government may, from time to time, by notification in the Official Gazette, specify in this behalf; Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein." In this regard, the petitioner has placed on file the statutory rules of the petitioners' corporation framed by the then Government of NWFP under subsection (2) of section 25 of NWFP (now Khyber Pakhtunkhwa) Forest Development Corporation Act, 1977. However, the said rules are silent about the appointment of winch operator and its terms and conditions. The said rules neither provide for contract employment nor do they cater to the eventuality as to when an employee, who is appointed, shall become a permanent employee of the a corporation. Therefore, the said rules are inapplicable to the appointment of the petitioner and as such the bar as provided under proviso to section 1 of the Ordinance, will not be applicable to the case of the deceased because the said bar will be applicable only when the statutory rules have taken care of the appointment of the employee. It is a settled law that barring provision of statute should be strictly applied, hence the petitioner corporation while pleading bar of the application of the mandatory provisions of the Ordinance should have the statutory rules taking care of the employment of the deceased. A corporation by merely having statutory rules for its employees would not be absolved from adhering to the mandatory provisions of the Ordinance as it is a beneficial statute for the all classes of workmen, unless it is established that the said rules are applicable to the employment of the employees and the employee has the right to enforce his right guaranteed under the said rules. If the said rules do not provide any guarantee or protection to an employee then the aforesaid bar contained in the Ordinance shall not preclude the employee from filing claim for his rights guaranteed under the Ordinance. Even otherwise, the said assertions of the learned counsel are belied by the admissions of its own witness Mr. Riaz Mehmood Assistant Manager Legal who has admitted:- Thus, it is evident that the petitioners' corporation has been extending the facility of group insurance to its permanent workmen.

11. In view of the above, the impugned order of Commissioner Workmen's Compensation, is based on correct appreciation of law and facts and does not call for any interference by this Court, therefore, this petition is accordingly dismissed. ZC/291/P Petition dismissed.