2017 PLP 31 (PLC)

AYESHA A. MALIK, J.

Through this petition, the Petitioner has impugned order dated 16.7.2009 issued by Respondent No.1.

2. The facts of the case are that Respondent No.2 filed a disability claim before Respondent No.1 on account of an injury sustained on 14.11.2007 after falling from twenty feet. Respondent No.1 awarded Respondent No.2 compensation vide order 16.7.2009 which is impugned before the Court.

3. The grievance of the Petitioner is that Respondent No.2 was working at a gypsum quarry when he got hurt and since the quarry does not fall under the definition of "mine" as defined in Section 19 of the Workmen's Compensation Act, 1923 ("Act"), he is not entitled to any compensation. It was argued that the Act only applies to persons specified in paras (i) to (xxviii) of the Second Schedule of the Act and since persons who work in a gypsum quarry are excluded, hence the Act will not apply. Learned counsel further argued that Respondent No.2 is not a workman within the meaning of Section 2(1)(n) of the Act as there is a difference between working in a mine and working in a gypsum quarry. Hence he argued that the Respondent No.1 had no jurisdiction to entertain the application of Respondent No.2 and to adjudicate upon it.

4. Learned counsel for Respondent No.2 submitted that the arguments urged before this Court today were never urged before Respondent No.1, no objection of his kind was raised, the Petitioner cannot set out a new case at this stage. Learned counsel further argued that remedy of appeal was available to the Petitioner under Section 30 of the Act which remedy was never availed by the Petitioner. Given that adequate and efficacious remedy was available, the instant Petition is not maintainable. Learned counsel further argued that Respondent No.2 was injured badly during work and has been awarded compensation, therefore, there is no grievance to be made out at this late stage when more than seven years have been gone by. He has placed reliance on the case titled Anwar Munir v. Mohd. Iqbal and others (PLD 1975 Lahore 367).

5. In response, learned counsel for the Petitioner submitted that to hold that remedy of appeal was available to the Petitioner at this stage would create a great injustice to the Petitioner as his case has been pending before this Court since 2009 and the matter should be decided on its merits. Therefore, after considering the matter, in order to ensure that injustice is not caused to the Petitioner, at this stage, the remedy of appeal which was available to the Petitioner is no longer efficacious. Hence the petition will be decided on its merits.

6. The objection of the Petitioner is that Respondent No.1 did not have jurisdiction in the matter as the Petitioner runs a gypsum quarry which is not a mine, hence Respondent No.2 is not a workman under the Act. Workman as defined under Section 2(1)(n) of the Act means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business. Schedule II of the Act provides for the list of persons who are included in the definition of workman. In terms of Schedule II (v) of the Act any person employed, in any mine as defined in clause (f) of section 3 of the Mines Act, 1923 (IV of 1923) in any mining operation, or in any kind of work, incidental to or connected with any mining operation or with the mineral obtained, or in any kind of work whatsoever below ground. The Mines Act, 1923 defines 'mine' as any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to or belonging to a mine. As per the arguments of the Petitioner, he was excavating gypsum from quarry No.ML.KHB-Gypsum(29) at Golewali, District Khushab. The learned counsel was not able to explain how excavation in a gypsum quarry did not fall under the definition, of a mine. A quarry is an open pit mine which falls under the definition of a mine under the Mines Act, 1923. Therefore, there is no merit in this argument. Hence Respondent No.2 is a workman under the Act and Respondent No.1 had jurisdiction in the matter of the Petitioner. No illegality has been made out in the impugned order dated 16.7.2009 issued by Respondent No.1.

7. Under the circumstances, no case for interference is made out. Petition is dismissed. WA/N-35/L Petition dismissed.