1992 PLP 1142 (PLC)

SA. Channa and Farid Gul Khan for Respondents. Date of hearing: 19th January, 1992. The petitioner in each of these petitions is a person who was employed with M/s. Karachi Transport Corporation, the respondent in these petitions as a permanent workman. In the course of his employment the petitioner suffered from disability and was removed on medical grounds, being declared as unfit for duty. The petitioner was paid some compensation after being examined by the respondent's Medical Officer but the petitioner got himself examined by his own private doctor who opined that his disability was total and of permanent character and therefore, the petitioner was entitled to payment of compensation accordingly.

2. The petitioner thereafter preferred a claim under Standing Order 10-B of the West Pakistan Industrial and Commercial. Employment (Standing Orders) Ordinance, 1968 before the Commissioner for Workmen's Compensation appointed under the Workmen's Compensation Act, 1923 in pursuance of clause (5) of Standing Order 10-B who granted the claim of the petitioner by directing the respondent to deposit the remaining amount of compensation, and hence these petitions.

3. I have heard Mr. Naraindas C. Motiani, learned counsel for the petitioner and Mr. SA. Channa and Mr. Farid Gul Khan, learned counsel for the respondents.

4. The main contention of Mr. Naraindas Motiani before this Court has been that the petitions filed before the learned Commissioner, Workmen's Compensation were not maintainable as no compensation was payable to any of the petitioners under Standing Order 10-B on account of the alleged permanent disability. Reliance in this respect has been placed by the learned counsel on the case of Messrs Pakistan Tobacco Co. Ltd. v. Muhammad Siddique (1987 PLC 363) and Hotel Metropole Limited v. Commissioner for Workmen's Compensation and another (1987 PLC 615). Mr. S.A. Channa and Mr. Farid Gul Khan, on the other hand, have fully supported the orders passed by the Commissioner for Workmen's Compensation impugned in these petitions respectively.

5. In order to appreciate the contention of Mr. Naraindas Motiani, it is necessary to reproduce Standing Order 10-B which provides as follows:- "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 (W.P. Ordinance No. X of 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 company. (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 (VIII of 1923). (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 (VII of 1923)." As would appear from Standing Order 10-B the employer is required to get all his permanent workmen employed by him insured against (1) natural death and disability and (2) death and injury arising out of contingencies as covered by the Workmen's Compensation Act, 1923, or the Provincial Employees' Social Security Ordinance, 1965. Although the term "disability" occurring in clause (1) of Standing Order 10-B has not been defined by the Standing Orders Ordinance or the Workmen's Compensation Act or the Employees' Social Security Ordinance but as no controversy exists on the point, whether the alleged disability in the present case would fall within the ambit of the term "disability" used in clause (1) of the Standing Order 10-B, it is hardly necessary for nit to dwell on this point any further. The main question, however, is that in case the employer fails to have a permanent workman employed by him insured in the manner laid down in clauses (1), (2) and (3) of Standing Order 10-B and such workman suffers disability referred to in clause (1), the liability to pay such sum of money as would have been payable by the insurance company had the workman been insured would fall upon the employer by virtue of `clause (4) of Standing Order 10-B. It is pertinent to point out in this regard that whereas clause (1) of Standing order 10-B makes it imperative for the employer to get the permanent workman employed by him insured against natural death and his disability and death and injury arising out of the contingencies not covered by the Workmen's Compensation Act or the Employees' Social Security Ordinance, clause (4) thereof in case of failure by the employer to have permanent workman employed by him insured in the manner laid down in clauses (1), (2) and (3) of Standing Order 10-B imposes the liability to pay such sum of money as would have been payable by the insurance company had such workman been insured, upon the employer only in case such workman suffers death or injury arising out of contingencies mentioned in clause (1) of the said Standing Order. In other words, the word "disability" has been omitted from clause (4) which claims were preferred by the petitioners against the respondent. Although it is possible that the omission of the word "disability" in clause (4) may be unintentional, but the Courts are hardly called upon to supply casus omissus left by the Legislature unless the omission is pulpable and the word omitted is clearly indicated by the context. (See Bindra's Interpretation of Statutes, 7th Edition, page 536). Such does not appear to be the case in the present case. A similar question arose before the learned Appellate Tribunal Sindh in the case of Messrs Pakistan Tobacco Company Limited, referred to earlier in this judgment and it was observed by the learned Tribunal-as follows:- "Subsection. (1) as originally stood made it incumbent upon the employer to get the workman insured against death and injury arising out of contingencies not covered by the Workmen's Compensation Act or West Pakistan Employees' Social Security Ordinance. Subsequently, this section was amended in 1975 and the expression "natural death and disability, and" was added. Thus it made it compulsory for the employer to insure a workman even with regard to natural death and disability which may arise out of some disease or any other cause in addition to the injury. However, subsection (4) which is material for the disposal of the present case is very important. In this the liability to pay the compensation for failure to have a permanent workman insured in the manner laid down in the previous three clauses was confined to such workman who suffered death or injury and did not extend the liability for payment to the disability arising out of some disease. It may be that through inadvertence the Legislature missed this aspect of the case or intentionally did not make any such provision in subsection (4). There may be a lacuna but that lacuna cannot be filled in by Courts. It is the duty of the Courts to interpret and enforce law as it stands. In the absence of any provision with regard to the disability in subsection (4), as pointed out, the Labour Court was not invested with the jurisdiction to entertain the claim for compensation. It is for the workmen to approach the Government to amend subsection (4) in order to make it applicable to all the contingencies provided by subsection (1)".

6. Mr. Naraindas Motiani has also referred to the case of Hotel Metropole Limited, earlier decided by me, reference to which has also been made earlier in this judgment but in my view the said case is not attracted to the facts of the present case as the question arising for determination in the said case only was whether the worker's claim could be allowed on the ground of his "extreme failing health". The question arising for determination in the present case is, therefore, different and consequently, it is not necessary for me to enter into any further discussion upon the facts of that case. However, I am clearly of the view that the applications filed by each of the petitioners in the present case were not maintainable before the Commissioner for Workmen's Compensation for the reasons just pointed out in this judgment.

7. In the result, these petitions are allowed and the orders passed by the said respondent are held to be without lawful authority and of no legal effect and therefore, the same are quashed. A.A./K-295/K Petitions accepted.