On natural death of one Muhammad Dilshad, a permanent workman of the petitioner-General Manager, Gulistan Textile Mills, vide order dated 31-12-2007 Respondent No, 1/Commissioner, Workmen's Compensation ordered payment of Rs, 2,00,000/- in lump sum i,e, amount of Group Insurance in favour of Rahim Bakhsh, Respondent No, 2, decased's father who approached him in terms of Clauses (4) & (5) of Paragraph 10-B of the schedule appended to the Industrial & Commercial Employment (standing Orders) Ordinance, 1968, which reads as under:-- "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 Ordinance, 1965 (Ordinance No, X of 1965).
(2) The employer shall in all cases be responsible for the payment of the amount of permia and for all administrative arrangements 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 suffer 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 or 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 Workman's Compensation Act, 1923 (VIII of 1923)."
Hence, this Constitutional petition to challenge vires of the said impugned order to get it set aside mainly on the grounds that it was Respondent No, 2 who fraudulently got his deceased son employed in the Gulistan Textile Mills showing him of 18 years and that despite assurance given by him he failed to provide to the petitioner Identity Card of the deceased that is why, as per Ex.R-1 (available on record), Respondent No, 3 Chief Manager, New Jubilee Life Insurance Company refused to pay the Group Insurance amount to the legal heirs of the deceased. According to the petitioner-Mills the deceased was given cover of Group Insurance and premium had also been deposited with the said Insurance Company but the Respondent No, 2 was found entitled to receive insurance claim by Respondent No, 3 which amount of compensation was later on illegally granted by the said Commissioner.
2. I have heard the learned counsel for the petitioner at length and perused the record.
3. The impugned order reveals that both the parties were heard by the Commissioner Workmen's Compensation/Respondent No, 1 after having given them opportunity to produce their respective evidence on issues specifically framed as arising out of their divergent pleas, but nothing was placed on record to persuade him that the, petitioner-Mills had indeed approached Respondent No, 3 for Group insurance, a statutory prerequisite for a permanent workman. Even Ex.R-1, letter of Respondent No, 3 (Insurance Company) referred to in this regard only makes mention of an alleged Insurance Claim No, 4625 lodged on behalf of the deceased with no supporting documents to give details of policy documents executed for the purpose. The letter was addressed to H.R. Department of the petitioner as consequence of which the Manager of the Mills dispatched a letter dated 22-10-2005 to Respondent No, 2 asking him to provide a copy of Identity Card of the deceased. It is denied by Respondent Na 2 during evidence before the Commissioner Workmen's Compensation that the petitioner had demanded proof of age/Identity Card of the deceased from him giving the impression that the said letter of the Mills had not reached Respondent No,
2. It is also proves that the petitioner-Mills failed to properly pursue and get processed insurance claim of the deceased as it was the administrative concern and responsibility of the petitioner to get it finalized in terms of Clause (2) of Paragraph 10-B of the Ordinance, 1968 (ibid). Therefore, it was none of the fault of Respondent No, 2 to do all this, negating argument by the petitioner before the said Commissioner.
4. Besides the above failure on the part of the petitioner, even otherwise Muhammad Dilshad deceased had successfully completed his probation period and was made permanent Workman without production of Identity Card or any other proof of his majority implying that he was found fit to work, surely having not been found falling within the definition of an "adolescent" or a "child" requiring to refer him for pre-employment medical/fitness test as per provisions of Sections 51 and 52 of the Factories Act, 1934, read with Article 41 of the Labour Policy, 2002 and International Labour Organization Convocation-182, which provide prohibition of child labour below 18 years of age unless on the application of a child/adolescent, who has completed Ms fourteenth years, wishes to work in a factory of his choice or of the parent or guardian of such person the Certifying Surgeon (appointed under Section 12 of the Act ibid) ascertains his fitness for such work and then grants a fitness certificates effect of which is that he is thereafter deemed to be an adult in terms of Section 53 of the said Act. And so in a case like the one in hand where neither the petitioner felt it necessary to have pre-employment fitness test nor insurance company raised any objection as to his being "underage" the workman so employed shall be deemed to be adult for the purpose of employment in a factory and entitled to all benefits guaranteed under the Law/Rules in force. In this case it is specifically mentioned in the application given before Respondent No, 1/Commissioner Workmen's Compensation that Muhammad Dilshad deceased was above 15 years. The case of the petitioner is also the same as, according to this petition read with letter of the Insurance Company (Ex.R-1), age of Muhammad Dilshad deceased was 17 years at the time of death. So, had the petitioner any doubt as to his tender age at the time of his employment it would not have firstly violated the above said provisions of law by allowing an adolescent/child to work in the Mills especially when no reference was made to the Certifying Surgeon and secondly, he would not have been made permanent workman and paid his gratuity and all other benefits giving the ample proof that the deceased worked with the petitioner like any other workman of 18 years of age. Therefore, the petitioner/Mills was bound under the law to provide cover of Group Insurance to the deceased Muhammad Dilshad for the purpose of Section 10-B of the Schedule (ibid) and was necessarily required to provide proof thereof before Respondent No,
1. The petitioner/Mills failed to do so as neither any representative of Respondent No, 3 was got examined nor got produced the necessary policy documents and payment receipts of premium, if any, relating to deceased's insurance.
Therefore, the observations of the Commissioner/Respondent No, 1 made in this behalf are not open to any question including the one that the deceased had not been given cover of Group Insurance. So, in absence thereof, the petitioner becomes absolutely responsible to pay the aforesaid amount of Group Insurance to the legal heirs of the deceased in terms of the findings of Commissioner Compensation which are well reasoned and passed after proper scrutiny of material placed before him leaving no room to invoking writ jurisdiction of this Court.
5. It may also be observed here that indeed the provision relating to Group Insurance, like all other provisions of Labour Laws promulgated, has a rationale behind it. It is a beneficial and workman friendly legislation enacted to safeguard and protect the rights of workmen guaranteed under different statutes/rules and ensured in the Labour Policy that is why the jurisdiction and powers of various forums created there-under, including the Commissioner Workmen's Compensation, are conferred by the legislature in a manner that strengthens them to ensure payment of adequate compensation to the workmen. It is, therefore, sad to observe that the amount of Group Insurance has unnecessarily been withheld for quite some time that has aggravated the agony of Respondent No, 2 whose son died in Young age and the Insurance Company/Respondent No, 3 too had no reason to refuse the claim, if at all it had got executed a policy of Group Insurance without raising any objection or requiring proof of age of the said deceased and it had itself gone ahead to provide the said cover, as alleged by the petitioner, even if it is presumed that the said deceased was not adult when he was insured. Resultantly, this Court finds no reason to interfere with the order passed by Respondent No, 1 in its constitutional jurisdiction.
6. Consequently, this petition, having no legal force, stands dismissed in limine.