1990 PLP 444 (PLC)

Date of hearing: 23rd May, 1989. This is a revision application against the‑ order, dated 24‑10‑1988, passed by the Sindh Labour Court No. VII at Sukkur whereby the learned Presiding Officer dismissed the complaint of the applicant under section 7 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter called the Ordinance.

2. Brief facts of the case are that the applicant was working as a Vanman in the Rohri Depot of Messrs Brooke Bond of Pakistan Ltd. from 1971 to 1980. He claims to have lost his eye‑sight and his hearing due to working with the respondents. He could not obtain any insurance because of failure of the respondents to got their employees insured as required under Standing Order 10‑B of the Ordinance which is an offence punishable under section 7 of the Ordinance. After obtaining the permission in writing, from the Inspector of Factories, as required under subsection (5) of section 7 of the Ordinance, he filed the complaint before the Labour Court. The respondents resisted the complaint on the ground that it was not maintainable as the Depot of the respondents had been exempted by the Notification of 1971 issued by, the Government of Sind and further that the complaint was time‑barred and thirdly that the applicant had already sought his remedy from Commissioner, Workmen's Compensation where he filed his petition.

3. I have heard Mr. Muhammad Suleman, learned Advocate for the applicant and Mr. Shabbir Awan, learned counsel on behalf of the respondents and also have gone through the record and proceedings of the cases.

4. It is submitted by Mr. Shabbir Awan that the depot of the respondents where the applicant was working was registered under Shops and Establishments Ordinance and, therefore, the Standing Orders Ordinance, 1968 would not be applicable. The Standing Orders Ordinance would not be applicable only if no more than 20 workers are employed on any day during the preceding 12 months in the establishment as provided under section 1(4)(a) of the Ordinance or as provided in the second proviso not‑snore than 49 workers were working on any day in the establishment in the preceding 12 months in which case the provision of section 10‑B would not be applicable. Whether 20 persons or 49 persons were working or not in the establishment, is a question of fact which could be decided by the learned Court after allowing the parties to lead evidence. Mr. Shabbir Awan further contends that depot has been exempted under the Notification of the Government from the shops and Establishment Ordinance. This Notification would not exempt the respondents from application of the Standing Orders Ordinance unless it is shown that it would not be applicable for the reasons mentioned in subsection (4) or the second proviso to section 1 of the Ordinance.

5. The third contention of Mr. Shabbir Awan is that the applicant having once moved the Commissioner for Workmen's Compensation was debarred from filing the complaint. I do not find any such bar in the provisions of the Ordinance. The relevant provisions of Standing Order 10‑B are reproduced, 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 contingencies not covered by the Workmen's Compensation Act, 1923 (VIII of 1923); or the Provincial Employees' Social Security Ordinance, 1965 (West Pakistan Ordinance No. X of 1965). (2) ... ... ... ... ... ... (3) ... ... ... ... ... ... (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. (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 provided for the determination and recovery of compensation under the Workmen's Compensation Act, 1923 (VIII of 1923).

6. It would be clear that in case of failure of the employer to get the workman insured he will have to pay the workman such sum of money as would have been payable by the Insurance Company and that such claim would be settled in such manner as provided under the Workmen's Compensation Act. However, the liability imposed under clause (4) and procedure as provided under clause (5) would not exempt the employer from the obligations imposed upon him under clause (1) of Standing Order 10‑B, reproduced above. For the violation of this provision of 10‑B he becomes liable for punishment as provided under section 7 of the Ordinance. The civil liabilities imposed upon the employer under clauses (4) and (5) is distinct from criminal liabilities under section 7(2) and the mere fact that the applicant tried to make recoveries would not debar him from prosecuting the respondents for his criminal liabilities under section 7(2) of the Ordinance. With regard to the plea of limitation there is no limitation against a criminal offence. Mr. Shabbir Awan could not produce any authority or any article of Limitation Act which imposes any limitation for prosecuting the offender of any offence.

7. For the aforesaid discussion, I find that the impugned order passed by the learned Presiding Officer is not in accordance with Law and is liable to be revised by this Tribunal in exercise of revisional jurisdiction. I would, therefore, set aside the impugned under and remand back the case to the learned Presiding Officer of the Labour Court with the direction to allow the parties to lead evidence and then to decide the case on merits in accordance with law. A.E./1446/Lb. S Revision allowed.