AMIR KHAN through his Legal Heirss vs PAKISTAN MINERAL DEVELOPMENT

SHAFIUR RAHMAN, J.---Lcavc to appeal was granted to examine whether the High Court of Balochistan had by its judgment dated 17-5-1982 correctly held that the West Pakistan (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance) was not applicable to the case of the predecessor-in-interest of the appellants because the conditions prescribed under proviso to clause (c) of subsection (4) of section 1 of the Ordinance for excluding its application stood satisfied.

2. The appellant joined service as a time-keeper with the WPIDC, Quetta on 15-12-1962. At that time the establishment was governed by Provincial Industrial Development Corporation (West Pakistan)

Ordinance, 1962 and Industrial Corporation (Dissolution) Ordinance, 1962, both enforced on the 4th of June, 1962. By Act XXVIII of 1974 West Pakistan Industrial Development Corporation (Transfer of Projects and Companies) Act, 1974 the Federal Government was authorised by section 4(2) to transfer projects to Corporation, and 'Corporation' was defined in that Act to mean a company formed and registered under the Companies Act, 1913, ' Invoking this power, by a Memorandum dated 10th of July, 1974, the Federal Government entrusted this project to the respondent/Pakistan Mineral Development Corporation Ltd. Which happened to be company incorporated under the Companies Act.

3. In 1975, when Amir Khan, the predecessor-in-interest of the appellants attained the age of 55 years, he was referred to a doctor for ascertaining his fitness for further employment. He was found blind by one eye and unfit for that reason to continue in employment. His services were, therefore, terminated on 11-11-1975 and he was paid his dues. Against the termination of service, the predecessor-in-interest of the appellants moved the Labour Court but his claim to reinstatement was rejected and the appeal filed by him was withdrawn by him. He, thereafter on 23-10-1977 filed a grievance petition under section 25-A of the Industrial Relations Ordinance before the Labour Court claiming benefits under Standing Order 10-B of the Ordinance in the matter of compulsory Group Insurance. The Labour Court dismissed the claim on 11-2-1979. The Labour Court held that the predecessor-in-interest of the appellants had no locus standi to file the petition, that his injury or disability was not occupational for which compensation could be paid to him and his claim was time-barred.

4. On appeal the Labour Appellate Tribunal held that the predecessor-ininterest of the appellants was an aggrieved person, that the period of limitation available to him for seeking relief in such matter was three years under the Workmen's Compensation Act and that the exact entitlement of the appellant had to be worked out for which the proceedings were remanded to the junior Labour Court. This appellate decision of the Labour Appellate Tribunal was challenged by a Constitution Petition wherein it was held that there being statutory rules of service and the project on which the appellant was involved being carried on under the authority of the Provincial Government, the Ordinance did not at all apply to the case. It was further held that the application filed by the predecessor-in-interest of the appellants was not within time and the grievance was not competent under section 25-A of the Industrial Relations Ordinance. On these findings the Constitution Petition was allowed and the decision of the Labour Appellate Tribunal was set aside.

5. In the leave granting order, it was noticed that the Federal Government or the Provincial Governments had nothing to do with the carrying of the industry or project in which the predecessor-in-interest of the appellants was employed. In fact a statutory authority namely, a Board as provided for under section 5 of the Provincial Industrial Development Corporation Act, 1969, was incharge of the matter.

6. Examination of the legal position reveals that at the time when the cause of action arose to the predecessor-in-interest of the appellants by a notification, the project had already been entrusted to a Corporation which was a Company incorporated under the Companies Act. The Federal or the Provincial Government was not directly involved in the project nor there existed statutory rules for regulating the employment so far as the employees of that public limited company were concerned. Hence the exemption did not exist at the time when the cause of action arose. Instead Standing Order 10-B of the Ordinance was applicable to the situation. Standing Order 10-B of the Ordinance guaranteed to the workman a benefit which was over and above what was guaranteed by the Workmen's Compensation Act. What clause (5) of Standing Order 10-B of the Ordinance provided was as hereunder:- "(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)."

7. As was held by the Labour Appellate Tribunal, this clause referred to procedure and not to the forum where claims under Standing Order 10-B of the Ordinance had to be taken. As the benefit was secured to the appellant under Standing Order 10-B of the Ordinance, he had to take his grievance to the Labour Court under section 25-A of the Industrial Relations Ordinance, where he had gone.

8. In the first place, the grievance of the appellant was against the termination of the service and he had within time approached the Labour Court in respect of it. On 13th June, 1977, he had withdrawn his appeal on the condition that he will prefer his claim for compensation. He refiled the claim in the Labour Court on 23-10-1977 for compensation of rupees twenty thousand on account of disability attributed to him. While withdrawing the appeal from the Labour Court the impression given was that he would be preferring the claim under Workmen's Compensation Act. When it came to be filed, it was under Standing Order 10-B of the Ordinance. As the injury or disability was not attributed to the occupation, the claim was not tenable under the Workmen's Compensation Act and was rightly instituted under the Industrial Relations Ordinance. Under section 25-A of the Industrial Relations Ordinance, there was indeed a delay in filing the proceedings before the Labour Court, as the period prescribed under the Workmen's Compensation Act would not be available to him for preferring the claim within three yeaRs, The shorter period prescribed under the Industrial Relations Ordinance would be applicable. However, considering the fact that the benefit relates to disability, the predecessor-in-interest of the appellants had been diligently pursuing the remedy and the delay is not inordinate, it is one of those cases where it has to be overlooked and condoned.

9. On merits, we find that the entitlement of the predecessor-in-interest of the appellants under Standing Order 10-B of the Ordinance is established. When we orally announced the legal entitlement of the predecessor-in-interest of the appellants to institute and successfully claim the benefit of Standing Order 10-B of the Ordinance, Mr. Basharatullah, Advocate, the learned counsel for the respondent sought time to consult his client with a view to decide upon the exact sum which the respondent would like to pay. After receiving instructions he informed us that the entitlement, according to the last pay drawn by the predecessor-in-interest of the appellants, comes to Rs,21,000 and in view of the long pendency of the claim and the dispute over it, the respondent would be ready and willing to pay double the amount i,e. Rs,42,000 in full and final satisfaction of the claim. We consider this to be a fair and just amount and while allowing the appeal and setting aside the judgment of the High Court, make an order as agreed to by the parties i,e. a sum of Rs,42,000 shall be paid forthwith to the appellants, the legal heirs of Amir Khan the workman entitled to the benefits. No order is made as to costs.