' ASAD MUNIR (CHAIRMAN).--- This appeal, filed under section 30 of the Workmen's Compensation Act, 1923, challenges the legality of order dated 15-9-2009, passed by Commissioner Workmen's Compensation, Lahore, respondent No,1, whereby the compensation claim of respondent No,2, filed against Fine Gas Limited, the appellant, has been partially allowed to the extent of Rs,100,000.
2. The facts relevant for the disposal of this appeal are that on 10-11-2007 respondent No,2, Rana Ghulam Yaseen, filed against the appellant a claim, as per Form G, before respondent No,1 seeking compensation of Rs,2,00,000 for having become totally disabled due to a heart attack suffered in July, 2006 in the course of his employment with the appellant. The claim was resisted by the appellant who through its written statement denied that any accident had taken place in the course of respondent No,2's employment with the appellant and also objected to the jurisdiction of respondent No,1 to adjudicate upon the claim on the grounds that neither respondent No,2 was a workman in terms of section 2(n)(ii) of the Workmen's Compensation Act, 1923, nor had respondent No,2 served on the appellant the mandatory notice prescribed under section 10(1) of the Workmen Compensation Act, 1923. By his order dated 15-9-2009, respondent No,1 has accepted the compensation claim of the respondent No,2 to the extent of Rs,100,000 on the ground that respondent No,2 had suffered loss of earning capacity of 50 per cent only.
3. While questioning the legality of order dated 15-9-2009, passed by respondent No,1, the learned counsel for the appellant contends that respondent No,1 had no jurisdiction to adjudicate upon the claim of respondent No,2 in the absence of service of the mandatory notice, under section 10(1) of the Act, upon the appellant prior to the filing of the claim. Further contends that respondent No,1 acted without jurisdiction to entertain respondent No, l's claim even though respondent No,1, being admittedly employed on monthly wages in excess of Rs,3000, is not a workman in terms of section 2(n)(ii) of the Act. It is also contended by the learned counsel that the Medical Certificate produced specifically states that the ailment of respondent No,2 is not due to injury in the course of employment but the learned Commissioner has, without regard to the provision of section 3(1) of the Workmen's Compensation Act, held that compensation is due. Surprisingly, the learned counsel for the respondent No,2 has offered no opposition in response but has conceded that respondent No,1 lacked jurisdiction to try respondent No,2's claim for the reasons advanced by the learned counsel for the appellant.
4. Notwithstanding the lack of contest between the learned counsel for the parties over the issue of jurisdiction of respondent No,1, this Tribunal deems it necessary in the interest of justice to decide the issue on merits rather than letting it go by default. The issue of respondent No, 1 's jurisdiction over respondent No,2's claim has two aspects either of which needs to be addressed separately.
5. Firstly, it needs to be seen if respondent No,1 lacked jurisdiction to adjudicate upon respondent No,2 claim of compensation even though admittedly he did not serve the prior notice on the appellant required under section 10(1) of the Workmen's Compensation Act, 1923. It needs to be said that such a notice is not akin to the grievance notice which is mandatory with the result that in its absence no grievance petition is maintainable in the Labour Court. The language of section 10 of the Act amply demonstrates that the notice need not be served in every case as it can be dispensed with in many situations. Reference may be made to Divisional Superintendent, Pakistan Railways, Sukkur and another v. Muhammad Murad and another (1985 PLC 973), Messrs Baksh Investment Limited v. Alam (1983 PLC 1042), The East Pakistan Water and Power Development Authority and another, Comilla v. Mahar Ali Saiyal (PLD 1971 Dacca 200) and Messrs Kohinoor Mercantile Corporation v. Hajera Khatun (1963 PLC 262) which lay down that it is not mandatory to serve the notice in every case as there is no need to serve such notice if the accident or injury is already in the knowledge of the employer. In the present case, the un-rebutted statement of respondent No,2 discloses that he suffered the heart attack at 9:a.m. When he was performing his duties in the office of the appellant whereafter he was taken to Jinnah Hospital, Lahore, where he stayed for about a week which is duly proved by the discharge slip issued by the Hospital. Due to and after the heart attack, respondent No,2 never rejoined his duties as his right side became paralyzed with the result that his services were terminated by respondent No,l. In these circumstances, no notice was required to be sent by respondent No,2 to the appellant as it cannot be denied that the appellant had knowledge of the heart attack respondent No,1 had suffered whilst on duty in appellant's establishment.
6. Secondly, as is mentioned in Form-G, respondent No,2 was receiving Rs,7980 as monthly wages comprising Rs,4691 as salary and Rs,3289 as allowance. By reference to the definition of a workman given in section 2(n)(ii) of the Act, the appellant has objected to the jurisdiction of respondent No,1 on the ground that a workman cannot file his claim for compensation if his monthly wages are in excess of Rs,3000. However, section 2(n)(ii) of the Act was amended in 2007 by the Finance Act,2007, with the result that the definition of a workman has been enlarged in scope so as to include every workman regardless of the monthly wages drawn by him. Learned counsel has argued that the said amendment is unconstitutional as it has been so held by the Sindh High Court in its judgment dated 26-2-2011, given in Constitutional Petition No,D-260/08(ii). However, it is a matter of record that the said judgment is under challenge before the honorable Supreme Court.
Till the issue is finally decided by the honourable Supreme Court, it would be appropriate for this Tribunal to follow the amendment as it appears to be a beneficial legislation. It has to be said that the pre-amendment fixation of maximum monthly wages of Rs,3000 for a workman to invoke the jurisdiction of Workmen's Compensation Commissioner, if allowed, would make the 'remedy of compensation illusory rather unavailable especially when the minimum monthly wages of workers have been fixed by the Government at Rs:9000. In view thereof, the objection to jurisdiction of respondent No,1 to try respondent No,2's compensation claim cannot be accepted.
7. Another issue that needs to be discussed is as to whether or not the injury of disablement sustained by respondent No,2 is on account of an accident arising out and in the course of respondent No,2's employment with the appellant. Admittedly, respondent No,2, whilst on duty, had a heart attack which caused his disablement as he suffered paralysis on account of the heart attack. The heart attack, being an unexpected or untoward event, must be regarded as an accident. Thus, the injury of disablement suffered by respondent No,2 is covered by section 3 of the Act as it was caused by accident arising out of and in the course of his employment with the appellant. If any authority is needed, one may refer to Divisional Superintendent PWR, Multan v.
Sharman (Sharifan) Bibi (1976 PLC 708)", where a railway employee died of heart attack in the course of his employment. The relevant portion of the cited precedent is reproduced below:--- "5. It is clear from the evidence on the record that the deceased had a severe heart attack and collapsed in his office while he was on duty and died in the Hospital the same evening, therefore, he died in the course of his employment. Now the question remains whether the accident arose out of the employment. The accident in order that it should arise out of the employment must be connected with the employment and must arise out of it. ATR 1956 Dom. 424 was a case where a workman suffering from heart disease after working for 8 hours on a hard day in June in a mill in Ahmadabad died due to heart failure and it was held that he died of injury by accident arising out of and in the course of his employment. In the case "Parwatibai v. Raikumar Mills, Indore" (AIR 1959 Madh. Pra. 281) it was observed :--- "It is well-established that the word "Accident" in section 3(1) of the Workmen's Compensation Act, has been used in the popular and ordinary sense and means "mishap" or "untoward event not expected or designed". If the injury or death from the point of view of the workman, who dies or suffers the injury is unexpected or without design on his part, then the death or injury would be by accident although it was brought about by a heart attack or some other cause to be found in the condition of workman himself."
8. The learned counsel for the appellant has referred to the Medical Certificate dated 10-6-2009 to submit that no compensation is due to respondent No,2 as the Medical Certificate specifically states that respondent No,2's weakness was not due to injury. I must say that the Medical Certificate, acknowledges the ailment and disablement of respondent No,2, but fails to mention that it was caused by heart attack admittedly suffered by respondent No,2 in the course of his employment. It would appear that the Medical Certificate is deficient in so far as it does not regard the heart attack as an accident nor does it mention heart attack as the cause of respondent No,2's disablement injury. In view of the reasons given in the preceding para, the learned counsel cannot take advantage of the deficiency in the Medical Certificate.
9.
As a result of the foregoing discussion, I have no option but to uphold the Workmen's Compensation Commissioner's Order dated 15-9-2009. Resultantly, I find no merit in this appeal which is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.