2000 PLP 300 (PLC)

7. Mr. S.P. Lodhi, however, placed reliance on a Karachi case reported as Mst. Lal Jan v. Silver Paper Tube Company Karachi (PLD 1974 Kar. 140) which seems to have been dissented by the High Court of Punjab (supra).

8. None of the counsel produced, perhaps being unaware of the authoritative judgment of the Supreme Court resolving the controversy in the case of Mst. Sakina Bibi v. Crescent Textile Mills Ltd. (PLD 1984 SC 241). On appeal, preferred by Mst. Sakina against the judgment of Mr. Justice Shafiur Rehman of Lahore High Court (as he then was). The Hon'ble Supreme Court resolved the controversy whereby approving the Karachi Bench Judgment, disagreed with the Lahore view.

9. It seems beneficial to reproduce the relevant observations of the Hon'ble Supreme Court in the said case:‑‑ "It is in the foregoing background that an effort would be made to analyse the two parts of section

81. And for their harmonious construction it would also be necessary to properly place each of them vis‑a‑vis the other. Instead of making the expression this section, that is section 81, as the touchstone far the avoidance of compensation under various laws mentioned in the first part of section 81, the Legislature preferred the phrase this Ordinance. It was with a clear object, arid the same is reflected in adding the second part in the section. Otherwise, there was no need for the same. When viewed independently this part would read as follows: 'The enactments and laws aforesaid shall, in so far as they are inconsistent with the provisions of this Ordinance ceases to have effect.' It is very part would have been a separate section it could have read as follows: 'The enactments and laws referred to in the next following section, shall in so far as they are inconsistent with the provisions of this Ordinance, cease to have effect. The opening expression regarding laws could also be substituted by the particulars of the laws mentioned in the first part as would be presently demonstrated. Instead of making it a separate section the Draftsman inaptly tried to combine both the subjects in one section with tote detailed particulars of the enactments and the laws'. Nevertheless while making one obvious gain of brevity it suffered the loss namely that of imbalance and confusion. The object of brevity could be achieved by avoiding the confusion also if the second part of section 81 would have been made into a separate subsection thereof by reversing the order; that is by making the second part as subsection (1) and the first part (by reversing its order) as subsection (2) thereof, of course, with the other formal changes mutatis mutandis. Thus, rearrnaged without violating the intent, section 81 could have read as follows:‑‑ (1) The Workmen's Compensation, Act, 1923 (VIII of 1923), the Employers Liability Act, 1938 (XXIV of 1938), the Mines Maternity Benefit Act, 1941 (XIX of 1941), the West Pakistan Maternith Benefit Ordinance, 1958 (West Pakistan Ordinance XXXII of 1958), or any other law under which compensation and maternity benefit are payable in respect of any employment, or on after the appointed day in respect of such employment shall, in so far as they are inconsistent with the provisions of this Ordinance, ceases to have effect; and (2) The compensation and maternity benefit payable under the aforesaid enactments and law, inrespect of any employee on or after the appointed day in respect of such employment, shall not be payable.' It is in this context that the addition in the heading and the conjunction 'and' therein, of the section 81 of ' etc.' would become meaningful and also significant. Read in this manner, even if the second part (made as subsection (1) above) remains an independents part of section 81 as held in this Mst. Sahina's case, the relevant exercise in a particular case would being with the application of that part; wherein it would be seen whether any of the provisions of these laws is consistent with the Ordinance. And those which are not inconsistent would not cease to have effect. In other words they will continue to have full operation. Those provisions of the said laws which would thus continue to have full operation would not be deemed to have been replaced in any manner including indirect and would also continue to have effect. Accordingly in so far as the first part of section 81 is concerned it will be read with the second part. To hold otherwise would render one part as shown above, into redundancy. Looking at it more precisely the compensation and benefit payable under any of the law mentioned in the first part would be obtainable only if it is saved after going through the exercise relatable to the inconsistency referred in the second part." Learned counsel for the appellant, then, referred to section 73 of the said Ordinance and submitted that the provisions of section 81 should be read with section 73 which has placed a bar on the benefits under other law including Workmen s' Compensation Act, 1923. The said section 73 reads as under:‑‑ "(73) Bar on benefits under other laws.‑‑‑When a person is entitled to any of the benefits provided by this ordinance, he shall not be entitled to any similar benefit under any other law." The submission of the learned counsel for the appellant appears to be misconceived. I can do no better than to reproduce the relevant observations about section 73 from the aforesaid Supreme Court judgment, appearing at page 251 which reads as under‑‑ "It is necessary at this stage to refer to section 73 of West Pakistan Social Security Ordinance, 1965 relied upon by the learned counsel for the respondents. It provides that when a person is entitled to any of the benefits provided by this Ordinance, he shall not been entitled to any 'similar benefit' under any other law. It cannot be denied that the scope of this provisions cannot be extended beyond what is provided by the specific provisions under the heading 'Suppression of Certain Laws etc. made in section 81 which has been analysed and interpreted with reference to the case law in Pakistan in the earlier part of this judgment. Moreover, section 81 being a latter provision would obviously control section 73 in case there is any conflict regarding the scope of both the provisions. But on proper scrutiny none would be read with, rather subject to the two expressions: 'compensation and maternity benefit' and in so far as they are inconsistent with the provisions of this Ordinance' used in section

81. There is no need to repeat here what has been stated earlier when discussing the scope of section

81. Thus, section 73 would have to be read with and subject to section 81 as interpreted above and not independent of it." Learned counsel for the appellant submitted that the appellant factory has been depositing contribution on behalf of the respondent with the Sindh Employees Social Security Institution and, therefore, the Social Security Institution was responsible to either pay compensation to the respondent or reimburse the medical expenses incurred by the appellant on the treatment of respondent No.1 for a total sum of Rs.18,

345. The submission is entirely misconceived. The appellant factory as it was a contributory to the Social Security Fund could have referred respondent No.1 to Social Security Institution for admission in the Hospital under the control of the Institution.

10. The learned counsel for the appellant, as a last resort, submitted that a sum of Rs.18,345 ought to have deducted from the sum of Rs.50,000 and the payment should have been reimbursed by the learned Commissioner. The submission is without any force. It appears that no such plea was taken before the Commissioner. In any case, the appellant having famed to adduce any evidence before the learned Commissioner, no such plea is entertainable at this stage, which is question of fact.

11. The learned counsel for the appellant concluding his submissions, raised an objection that there was no evidence led before the learned Commissioner as to the 50% compensation. No medical evidence or even a Certificate was produced by the respondent before the learned Commissioner. But, the appellant, having intentionally absented from producing any evidence in rebuttal to the evidence led by the respondent and on physical examination of the respondent having lost two fingers which have been amputated which could be seen by open eyes; the learned Commissioner was justified in awarding 50% compensation as per Schedule‑I of the Workmen's Compensation Act. The relevant observations, made by the learned Commissioner in his Order, will sufficiency explain the point. It reads as under:‑‑ "Since the respondent have not given any evidence or controverted the claim but on the contrary he was examined personally by the Commissioner who found that the first two fingers of left hand have been amputed and (sic) third finger is partially working as the nail and the last phalange and third fingers is also permanently seized. Therefore, I hold that the applicant is entitled to 50% as per the Schedule‑1 where he has suffered loss of four (4) fingers of one hand, and as per the schedule loss of four fingers of one hand, the percentage of loss of earning capacity is laid down as 50 permanent total disablement."

12. Under the circumstances, no exception can be taken of the view expressed by the learned Commissioner on the nature of injury and its extent for the purpose of awarding compensation, provided under the schedule, would, therefore, uphold the impugned order and dismiss the appeal. H.B.T./307/K (Lab. Trib) Appeal dismissed