2018 PLP 264 (PLC)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Petitioner company is aggrieved of judgment, dated 25-10-2016, passed by learned Chairman, Labour Appellate Tribunal, Lahore ("Labour Appellate Tribunal"), whereby appeal filed by respondent No.1 was accepted, judgment, dated 9-6-2016, passed by Workmen's Compensation Commissioner for Mines Sargodha Region, Khushab ("the Commissioner") was set aside and matter was remanded to determine compensation of respondent No.1 in the light of his claim.

2. Brief fact of the case are that respondent No.1 filed application seeking compensation before the Commissioner, which was contested by petitioner-company by filing written reply. The Commissioner, after recording oral as well as documentary evidence of the parties, dismissed the application of respondent No.1, vide judgment, dated 9-6-2016. Feeling aggrieved, respondent No.1 assailed said decision in appeal before learned Labour Appellate Tribunal, which was accepted, judgment dated 9-6-2016, passed by the Commissioner was set aside and matter was remanded to him, vide judgment dated 25-10-2016. Hence, this constitutional petition.

3. Learned counsel for petitioner-company submits that no opportunity of hearing was provided to it before passing the impugned judgment. He adds that application of respondent No.1 was barred by limitation for more than 3 years. In the end, he submits that impugned decision is not sustainable in the eyes of law.

4. On the other hand, learned counsel for respondent No.1 defends the impugned judgment and submits that learned counsel for petitioner-company has failed to point out any illegality or legal infirmity in the same, which is liable to be upheld.

5. Learned Amicus Curiae submits that though "pulmonary kock" is not included in Schedule III of the Workmen's Compensation Act, 1923 ("the Act of 1923") but a similar lungs occupational disease "silicosis" attracting from any process involving the grinding, cleaning, fitting, casting and crushing of stones is included in the said Schedule. He adds that disease of respondent No.1 may be treated at par with "silicosis" and petitioner-company is obliged to make compensation to respondent No.1. He further submits that this Court can alternatively direct the Provincial Government to make appropriate legislative measures to include "pulmonary kock" in the said Schedule. He argues that even otherwise, respondent No.1 being worker in air-compressed conditions, is entitled to receive compensation. He contends that due to failure in implementing safety regulations and inefficient performance of the stakeholders concerned, inside story of the coal mines is very tragic in our country and directions may be issued by this Court to enforce the provisions of the Act of 1923 in its true perspective.

6. Arguments heard and available record perused.

7. The operative part of impugned judgment is reproduced hereunder:-- "

8. This Tribunal scanned the record of the file and observed that the appellant had been working in the Mines in compressed air and due to conditions the appellant suffered with Pulmonary Kock's. This disease fall in Schedule III Part-A of Workmen's Compensation Act and the respondent employer is liable under section 3(2) of the Act to pay compensation to the appellant.

9. As discussed above, this appeal succeed and accepted. The impugned order dated 9-6-2016 passed by Workmen's Compensation Commissioner for Mines Sargodha Region Khushab is set aside and case is remanded back to the learned Commissioner to determine the compensation of appellant in the light of his claim."

8. Examination of available record shows that respondent No.1 had been working in petitioner-company/a mining industry. During employment, respondent No.1 contracted a serious lungs disease namely "pulmonary kock" and as per recommendations of the Medical Board, he was declared unfit for service. Whereupon, he tendered claim of compensation as per provisions of the Act of 1923 but the same was declined with the plea that said name of specific disease is not included in the occupational diseases relating to the workmen serving in mining industry. SCHEDULE III [SEE SECTION 3] LIST OF OCCUPATIONAL DISEASESA Occupational disease Employment PART A Anthrax Any employment

(a) involving the handling of wool, hair, bristles or animal carcasses or parts of such carcasses, including hides, hoofs and horns; or (b) in connection with animals infected with anthrax; or (c) involving the loading, uploading or transport of any merchandise Compressed air illness or its sequelae. Any process carried on in compressed air. Poisoning by lead tetra-ethyl. Any process involving the use of lead tetra-ethyl. Poisoning by nitrous fumes. Any process involving exposure to nitrous fumes. Lead poisoning or its sequelae [excluding poisoning by lead tetra-ethyl]. Any process involving the use of lead [or any of its preparations or compounds except lead tetra-ethyl]. Phosphorous poisoning or its sequelae. Any process involving the use of phosphorus or its preparations or compounds. Mercury Poisoning or its sequelae. Any process involving the use of mercury or its preparations or compounds. Poisoning by benzene and its homologues, or the sequelae of such poisoning. Handling benzene or any of its homologues and any process in the manufacture or involving the use benzene or any of its homologues. Chrome ulceration or its sequelae. Any process involving the use of chromic acid or bichromate of ammonium, potassium or sodium, or their preparations. Arsenical poisoning or its sequelae. Any process involving the production, liberation or utilization of arsenic or its compounds. Pathological manifestations due to- (a) radium and other radio-active substances; (b) X-rays. Any process involving exposure to the action of radium, radio-active substances, or X-rays. Primary epitheliomatous cancer of the skin. Any process involving the handing or use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances. Silicosis Any process involving the grinding, cleaning, fitting, casting and crushing of stones.

9. Learned Labour Appellate Tribunal observed that respondent No.1 had been working in the Mines in compressed air owning to which he suffered with Pulmonary Kock and thus entitled to receive compensation.

10. The above observations of the learned Appellate Tribunal are further fortified by some case-laws from Indian Jurisprudence. In the case of Mackinnon Machenzie and Co. Private Limited v. Smt. Habiba Eusoof Karblkar (1967 ACJ 188), the deceased was working as an employee on a ship. He complained of chest pain and breathlessness while on voyage. Upon medical check up, it was found that he had heart trouble. He was allowed to be repatriated to his country but while he was on his way back he died on account of coronary thrombosis. The disease was found to be chronic but it was found that it was aggravated by strenuous duty of 12 hours per day and due to strain the employee had died. Therefore, it was held that said cause of strenuous duty of 12 hours per day was found to be strictly attributable to the specific injury suffered.

11. Similarly, in the case of Sharbati Devi and another v. Haryana Roadways, Sirsa Depot (F.A.O. No.769 of 1989), the Punjab Haryana High Court has observed as under:-- "Besides the statement of AW1 Sharbati Devi, who has categorically stated that her deceased husband has contracted disease of TB during the course of employment of 17 years as a driver, Dr. Gulab who appeared as AW2, stated in the cross-examination that a driver could also suffer from disease of TB because if any passenger in the bus, which is generally over crowded is suffering from that disease, then there are chances of driver also contracting the same due to exertion. No evidence to the contrary has been produced by the respondent by examining any doctor."

12. Needless to observe here that right to health and medical care to protect one's health and vigous, while in service or post-retirement, is a fundamental right of a worker to make his life meaningful had purposeful with dignity of person. The compelling necessity to work in an industry for bread-winning for himself and his dependents should not be at the cost of health and vigour of the workman. Right to health includes right to live in a clean, hygienic and safe environment. Clean surroundings lead to healthy body and healthy mind. But, unfortunately, many employees work in dangerous, risky and unhygienic environment. Every State has an obligation and duty to provide at least the minimum condition ensuring human dignity. But when workers are engaged in such hazardous and risky jobs, then the responsibility and duty on the State is double-fold. Necessity for constant supervision and to the drive to mitigate the harmful effects on the workers is of extreme importance.

13. Learned counsel for petitioner has failed to point out any illegality or legal infirmity in the impugned judgment calling interference by this Court in the exercise of constitutional jurisdiction.

14. In view of the above, instant petition, being devoid of any merits, is hereby dismissed with no order as to costs. ZC/Z-7/L Petition dismissed.