2008 PLP 280 (PLC)

MUHAMMAD MOOSA K. LEGHARI, J.

Through this constitutional petition the petitioners have impugned the legality and validity of order, dated 2-10-2004 passed by the Commissioner for Workmen's Compensation/Authority under the Payment of Wages Act, East Division, Karachi, whereby the claims of respondent No.2 viz. the son of deceased workman, under the Workmen's Compensation Act, 1923 as well as the Payment of Wages Act, 1936 were allowed.

2. Brief facts for disposal of this petition are; that deceased Muzaffar Khan was an employee of petitioner-Establishment. On 20-2-2003 he died at Social Security Hospital Landhi, Karachi due to heart attack. After his death respondent No.2 being his son moved two applications; one under the Workman's Compensation Net and the other under the Payment of Wages Act. The petitioner contested the matter and filed legal objections/written statement wherein they took a plea that the deceased worker had tendered resignation from service on 18-2-2003, as such at the time of his death on 20-2-2003 there was no relationship of employee and the employer between the deceased and the petitioner. It was further averred that the duties performed by the deceased were of supervisory nature, as such he was not a workman and the application so moved .by his son was not maintainable. Both the parties led their evidence and the witnesses were subjected to cross-examination. Ultimately respondent No.1 vide the impugned order allowed claims of respondent No.2 and the petitioner-Establishment was directed to deposit amount of Group Insurance in the sum of Rs.2,00,000 and other legal dues within 30 days of the order. Hence, this petition:

3. The contentions raised by both the parties have been considered and the material placed on record has been perused.

4. So far as the, plea of the petitioner that the deceased was performing duties of supervisory nature as such he was not a workman is concerned, suffice it to say that the respondent No.2, son of the deceased, in his affidavit in evidence has stated in categorical terms that the deceased used to work in place of absentee workers and used to repair out of order machines and after removing fault, the machines were handed over to the concerned workers, that the deceased had no right to hire and fire and that his basic wages were Rs.2645. Although respondent No.2 was subjected to a lengthy cross-examination but no suggestion was put to him in respect of aforesaid averments, as such the same went unrebutted/unchallenged. In this view of the matter, it can safely be held that the deceased was a workman. Nevertheless, after the death of the worker, onus heavily shifted to the employer to prove by adducing incontrovertible evidence, that the deceased worker did fall beyond the ambit of worker/workman.

5. It was next contended by learned counsel for the petitioner that respondent No.1 had no jurisdiction to proceed with and decide the two applications moved by respondent No.2 under two different laws by the same order. It appears that both the applications were being proceeded with by respondent No.1 jointly, inasmuch as common issues were framed, common evidence was recorded, arguments on both the applications were heard jointly. The petitioners have not been able to point out that during the proceedings, they ever raised any objection to such joint proceedings. Perusal of affidavit in evidence of petitioners' witness namely Ishrat Maqbool viz. the Labour and Welfare Officer of the. petitioner-Establishment, shows that the same was meant to be filed in both the Applications bearing No.58 of 2003 under the Payment of Wages Act, 1936 and No.31 of 2003 under the Workmen's Compensation Act, 1923.

6. Besides, it is an admitted position that respondent No.1 simultaneously was holding the portfolios of Commissioner for Workmen's Compensation as well as the "Authority under the Payment of Wages Act", as such he disposed of both the applications together. Moreover, the labour laws having been enacted for the benefits of the workers, in case of death of a worker, the questions regarding benefits like group insurance, gratuity and other legal dues are to be settled at the earliest. The widow and other legal heirs of the deceased cannot be deprived of their legal dues on technical grounds. Needless to emphasize the constitutional jurisdiction of this Court is discretionary in nature and is basically meant for setting right the wrongs and to facilitate the innocents in achieving their due rights. Furthermore, it is a settled principle of law that technicalities cannot be allowed to create hurdles in the way of substantial justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the courts to do substantial justice and not to deny the same on mere technicalities.

7. Lastly, it was contended on behalf of the petitioners that before his death on 20-2-2003, the deceased had already resigned from services as such there was no relationship of employee and employer between the deceased and the petitioners at the time of his death and consequently his legal heirs were not entitled to the amounts as claimed. According to the petitioners, deceased tendered his resignation on 18-2-2003. At the same time they also admitted that they issued B-II form for treatment of the deceased at Social Hospital on 18-2-2003. No material was placed on record to show that resignation of the deceased, if any, was accepted by the petitioner-Establishment. Furthermore, the petitioner's witness also admitted in his cross-examination that application submitted to the S.E.S.S.I. by the widow of the deceased for funeral expenses was verified by the petitioners-Establishment on 27-2-2003. In this view of the matter, petitioners have not been able to substantiate their plea that the deceased had resigned from service on 18-2-2003. The upshot of above discussion is that the petition being devoid of merit is dismissed in limine along with listed application. H.B.T./H-8/K Petition dismissed.