1982 PLP 641 (PLC)

"It may finally be pointed out that this Tribunal has repeatedly held that no appeal lies against a decision given by the Commissioner under Standing Order 10‑B, since the matters in respect of which appeal can be preferred are limited to those specified in sub section (1) of section 30 of the "Workmen's Compensation Act." The earliest decision to this effect was given by this Tribunal in the Case of Re‑Daily Mashriq v. Mst. Roshan Khatoon decided of 23rd July, 1975. The said decision was followed in the case on Tanveer Textile Mills v. Mst. Ameena (1976 P L C 92) and Rice Export Corpora tion v. Raees Bibi, decided on 7th March, 1977."

8. This is a consistent view taken by the Tribunal and I am in agree ment with this view. At any rate the Petitioners believed that an appeal under section 30 was not maintainable and hence they invoked the writ jurisdiction of this Court. The decision reported in P L D 1971 S C 130 is referred as an illustration that Constitutional Petitions were accepted even though there was remedy available under the City of Municipal Act, 1933. At page 160 of the same authority quoted above following passage may be quoted in support of the contention "It now remains to deal with certain ancillary arguments raised in some of the appeals. As seen above a few of the appellants did not prefer appeals to the Chief Justice, Small Causes Court, but directly filed writ Petitions in the High Court. It was objected on behalf of the Corporation that unless the remedy available under the City of Karachi Municipal Act, 1933, was exhausted it could not be said that no other adequate remedy was provided by law in order to invoke Article 98 of the Constitution. "It must be remembered in this context that the Corporation was threaten ing to take coercive steps for recovery of the impugned taxes and the Chief Judge, Small Causes Court had in other similar cases upheld the formula applied by the Municipal Commissioner and declined to grant stay orders. However, a number of writ Peti tions arising in similar circumstances had been admitted in the meantime by the High Court and recovery of taxes stayed in those cases. In the circumstances it would have been a futile exercise on the part of these appellants to approach the Chief Judge, Small Causes Court. On this view it could not be said that an other adequate remedy was available to the appellants and having failed to make resort to it they had disentitled themselves to invoke the writ jurisdiction of the High Court."

9. In view of the above authority of the Supreme Court and also the judgments reported in Muhammad Siddique v. M/s Premier Tobacco Industries Ltd., Kotri (1981 P L C 670), it seems that petitioners can invoke the writ jurisdiction of this Court.

10. The next question is whether the Petitioners are absolved from payment of the amount covered by the policy of the Group Insurance. It is contended by the Petitioners that their responsibility and liability was only to insure their permanent employees and they having done so, their liability was over. The petitioners rely on subsection (4) of the Standing Order 10‑B. Order 10‑B is as under:‑ "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 contin gencies not covered by the Workmen's Compensation Act, 1923 (VIII of 1923) or the Provincial Employees' Social Security Ordi nance, 1965. (2) The employer shall in all cases be responsible for the payment of the amount of premia and for all administrative arrangement whether carried out by himself or through an insurance com pany. (3) The amount for which each workman shall be insured shall not be less than the amount of compensation specified in Schedule IV to the Workmen's Compensation Act, 1923. (4) Where the employer fails to have a permanent workman emplo yed 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 workmen 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. (5) All claims of a workman or his heirs for recovery of money under clause (4) shall be settled in the same manner as is provi ded for the determination and recovery of compensation under the Workmen's Compensation Act, 1923."

11. The Petitioners rely on subsection (4) of the Order 10‑B con tending that they would be liable only if they had failed to have insured the permanent employees of their concern. In this case they have in sured father of the Respondent No.

2. The arguments put forward on behalf of the Petitioners in this respect under the circumstances of this case, do not appear to be cogent particularly when the Respondent No. 4 pleads that the Policy of deceased Shah Riazuddin terminated. So far the termination of the policy is concerned as contended by Respondent No. 4, is yet another aspect of the present Petition but for the sake of arguments, suppose the policy had actually terminated the Petitioners in view of this, cannot be absolved from the liability of the cover of insurance and that the Petitioners would be legally liable to pay the amount of Rs. 15,000 the amount of insurance. Primarily, therefore, the Petitioners are directly liable to pay to the permanent employees even if the Petitioners have complied with the obligations as contemplated under order 10‑B. In the policy under which the contractual parties are the Petitioners and the State Life Insurance Corporation, the remedy of the employers lies to claim the amount of policy from the respondent B No. 4 and it is not for the legal representatives of the deceased to agitate for claim before respondent No.

4. Subsection (4) of Order 10‑B does not help the petitioners in this respect.

12. The gratuity and provident fund are covered by the provisions of para. 6 of the Standing Order No.

12. Proviso to para. 6 aforesaid contemplated the existence of only one institution, either provident fund or gratuity and accordingly provision was made in para. (8) for recovery of only one of the benefits aforesaid. The learned Commissioner in his order dated 30th September, 1980 has made a very illuminating and pertinent reference to this aspect and has observed that the place of indus trial progress and evolution of Labour Management Relationship and Collective Bargaining in one course, necessitated the establishment of both the institutions (namely of gratuity and provident fund). Section 15 of Payment of Wages Act has been amended to enable the Authority there under to recover such dues in respect of those employed in industrial estab lishment'. The Petitioners definitely and obviously are the industrial estab lishment. Therefore, the Petitioners are liable to pay not only gratuity but provident fund also as claimed by Respondents Nos. 2 and

3. On perusal of the order recorded by the Commissioner this proposition is clear and the order is just and fair. As regards the date of appointment of the deceas ed, the learned Commissioner has given a clear finding that deceased was employed in 1954. It would be wrong to state that deceased was employed in 1973,

13. The next aspect of this Petition refers to the liability of the Respondent No. 4 namely the State Life Insurance Corporation to pay the amount of Rs. 15,000 to the Petitioners. The contention raised by Respondent No. 4 is that the deceased Shah Riazuddin died after he reached the age of 60th birthday and, therefore, his Policy terminated. The Policy was being renewed from year to year and the contract between the parties was valid for year to year. It was a yearly contract. The list last submitted namely on 8th September, 1976 shows and indicates the age of deceased Shah Riazuddin to be 57 years. It has been argued by the learned counsel of the petitioners that since Respondent No. 4 had accepted the Policy for the last year, they are estopped under section 115 of the Evidence Act from taking the stand that Shah Riazuddin died after 60 years of age. According to the statement produced in this Court the last contract was covering a period of one year from 1976‑77 wherein the age is mentioned to be 57 years. In this respect A I R 1939 Bom. 161 is referred. 1t is held in this authority that once the age is admitted by the Insurance Company, there is no reason why they should not be held to be precluded from disputing the correctness of it unless the admission was procured by fraud. The relevant passage is quoted as below:‑ "Once the age is admitted by the insurance company, there is no reason why they should not be held to be precluded from disputing 1V `' the correctness of it unless the admission was procured by fraud. Where the age is not admitted, the burden of proving the age initially would be on the person claiming under the assurance, but where the age is admitted, then on the principle under the Evidence Act that facts which are admitted need not be proved, it is for the company to prove that the admission of age was procured by fraud and that the representation as to age is untrue. Fraud, of course vitiates even the most solemn transaction: but if there is no fraud, there is no reason why the company should not be held bound by the representation made by them to the assured that they will not dispute the correctness of the age admitted by them."

14. The Respondent No. 4 has not categorically or specifically claimed that there was fraud on the part of the petitioners although in the earlier lists supplied by the petitioners to the Insurance Company the age of the deceased was shown in one 59 years and in the second 'year

58. This is a matter between petitioners and the Respondent No. 4 and that this Court will refrain from making any observations on the factual aspect of the matter as such. The legal position however, is that since the' Insurance Company has accepted in the last contract the age of the deceased to be 57 years they are now precluded from coming forward to say that the deceased died after reaching the age of 60 years.

15. It may be added that the discrepancy in respect of the age of deceased, appears to be cleared at para. 21 of impugned common order of Commissioner. The para. be quoted as under :‑ "The defence witness, however, admitted that the death certificate, Exh. A‑1, produced by the applicant, showed that the age of the deceased, at the time of his death, was much less than 60 years and it was because of that he was retained in service until his death. The witness went on to add that the opposite party never replied to the Corporation's letter Exh. D‑5 refusing the claim of the deceased, It was categorically affirmed that, from the date of Group Insurance under the list Exh. D‑i upto the time of the death of the worker, or the date of claim, the Corporation neither raised any objection with respect to the age of the deceased, nor the calcu lation of premia, nor refused to accept the premia upto the time of his death. All this, as it should, leads to the logical and irresistable conclusion that the Corporation was fully aware and sure of the fact that the deceased had not attained the age of 60 up to the time of his death. The age‑issue is, obviously, an after -throught." However, the petitioners were ordered to deposit the amount of insurance cover, vide para. 23 of the impugned order. It would be sufficient to say that petitioners may recover the insurance amount from E Respondent No. 4 by either direct negotiations or having recourse to any other competent forum.

16. However, it is the responsibility and the personal liability of the petitioners under Order 10‑B to effect insurance cover to the permanent employee or in case of failure they would pay up the Policy cover in case the employee dies. The matter as it stands now is that if the Policy is defective and the insurer succeeds in not honouring the Policy amount, in that case by implication of the Order 10‑B, the employer is personally responsible for the payment of the Policy cover. The petitioners shall abide by the order of the Commissioner.

17. Under the circumstances discussed above the petition is dismissed. However, in the circumstances of the case, there will be no order as to costs. ‑‑‑‑ Petition dismissed.