' Petitioners Messrs Afzal Stores Ltd. Have filed the present Constitutional Petition against the four respondents, named above.
2. The petitioner is a company registered with the Registrar of Joint Stock Companies and is engaged in export of ready-made garments, handicrafts and gift items of various descriptions.
Shah Riazuddin the father of respondent No, 2 and husband of respondent No, 3 was a permanent employee of the petitioners. He died on 28th May, 1977 during the course of his employment and for the sake of convenience is hereinafter described as the deceased. There were 29 persons including the deceased employed with the Petitioners at the relevant time. The petitioners instituted Group Insurance Scheme in their Organization under the provisions of Order 10-B of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as a result whereof he got insured employees under the said Scheme including the deceased Shah Riazuddin. The premium in respect of all the 29 employees of the petitioner's including the deceased had been paid by the petitioners to the respondent No, 4, i. e. State Life Insurance Corporation. After the death of the deceased the petitioners, as alleged by them, did pay all the legal. Dues of the deceased to the respondent No, 3 (widow of the deceased) including Gratuity calculated on the basis of the deceased's employment with the petitioners since 1973 and the claim in respect of Group Insurance of the said respondent was referred back to the respondent No, 3 (widow) for claiming it from the respondent No, 4.
3. Two years after the death of the deceased two applications were filed in the Court of the Commissioner for Workmen's Compensation. The first application (No, 51 of 1979) related to the recovery of money in respect of Gratuity, Provident Fund, encashment of unavailed leave and earned wages. The second application (No, 67 of 1979) was filed wherein a claim for recovery of sum of Rs, 7,053.33 on account of Gratuity and sum of Rs, 690 on account of salary for 45 days unveiled leave and further amount of provident fund was claimed. The amount on account of salary for the month of May, 1977 was also claimed. In total sum of Rs, 12,178.33 was claimed in the application No, 67/1979.
4. The two applications filed before the respondent No, 1 were disposed of by a common order allowing both the applications. Since no other remedy was available to the petitioners, they filed the instant Constitutional Petition challenging orders of the respondent No, 1 and praying for the relief that the order passed by the respondent No, 1 was without authority and was void.
5. A counter affidavit was filed by Respondent No, 2 for himself and for his mother as her attorney to the effect that his father Riazuddin was in the permanent employment of the petitioners since March, 1954 and not from 1973 as is alleged by the petitioners in their petition. He died on 28th May, 1977 while in employment of the petitioners. Under the law the petitioners primarily were liable to make payment of all the dues including the amount of Group Insurance of his father and also the Gratuity, Provident Fund etc. According to this affidavit the respondents Nos. 2 and 3 have no grievance against the order of the respondent No, 1 and it is indicated that the petitioners want to avoid to pay the legal and lawful dues to be paid in lieu of the claim made in the applications Nos.
51 and 67 of 1979 before respondent No,
1. Actually the petitioners have paid only Rs, 507 out of the amount of Rs, 7,053.33 of the Gratuity and the petitioners have paid only Rs, 1,236.93 in respect of Provident Fund out of the total amount of Rs, 3,975. The petitioner wanted to avoid the due claims to respondents Nos. 2 and 3. Further it is contended in the said affidavit that the petitioners should have gone in appeal under section 30 of the Workmen's Compensation Act rather than to file the present Constitutional Petition.
6. There is counter affidavit on the file by the Deputy Manager of the State Life Insurance Corporation contending that for the first time Group Insurance Scheme was initiated on 8th October, 1973 and thereafter, was renewed from year to year. The policy which was renewed on 8th October, 1974 listed the name of the deceased at S. No, 11 and his age were mentioned to be 58 years and thereafter, the renewals were from year to year. According to the list supplied in the year 1975-76 the particulars of late Shah Riazuddin are shown at S. No, 11 which show the age of the deceased to be 59 years. In the terms and conditions of the Policy the eligibility of the Group Insurance cover is confined to an age before attainment of 60th birthday. Contention is that Shah Riazuddin Ahmed died after he had attained the age of 60 years and, therefore, his policy was terminated.
7. It is contended by the learned counsel for Respondent No, 4 that a Constitutional Petition is not competent inasmuch as there was remedy available to the petitioners, in the nature of appeal under section 30 of the Workmen's Compensation Act. In .This regard the advocate of petitioners has referred to an authority reported in 1981 PLC 685 wherein it was held that no appeal lies to the Tribunal against the decision of the learned Commissioner under Standing Order 10-B of the West Pakistan (Standing Orders) Ordinance, 1968. There were decisions earlier in case of General Tyre and Rubber Company of Pakistan v. Hari son of Marva, decided on 18th August, 1980 wherein it was observed as follows :-- "It may finally be pointed out that this Tribunal has repeatedly held that no appeal lies against a decision given by the Commissioner under Standing Order 10-B, since the matters in respect of which appeal can be preferred are limited to those specified in subsection (1) of section 30 of the "Workmen's Compensation Act." The earliest decision to this effect was given by this Tribunal in the case of Re-Daily Mashriq v. Mst. Roshan Khatoon decided of 23rd July, 1975. The said decision was followed in the case on ' Tanveer Textile Mills v. Mst. Ameena (1) and Rice Export Corporation v. Raees Bibi, decided on 7th March, 1977."
8. This is a consistent view taken by the Tribunal and I am in agreement with this view. At any rate the Petitioners believed that an appeal under section 30 was not maintainable and hence they invoked the writ jurisdiction of this Court. The decision reported in PLD 1971 SC 130 is referred as an illustration that Constitutional Petitions were accepted even though there was remedy available under the City of Municipal Act, 1933. At page 160 of the same authority quoted above following passage may be quoted in support of the contention : "It now remains to deal with certain ancillary arguments raised in some of the appeals. As seen above a few of the appellants did not prefer appeals to the Chief Justice, Small Causes Court, but directly filed writ Petitions in the High Court. It was objected on behalf of the Corporation that unless the remedy available under the City of Karachi Municipal Act, 1933, was exhausted it could not be said that no other adequate remedy was provided by law in order to invoke Article 98 of the Constitution. "It must be remembered in this context that the Corporation was threatening to take coercive steps for recovery of the impugned taxes and the Chief Judge, Small Causes Court had in other similar cases upheld the formula applied by the Municipal Commissioner and declined to grant stay orders. However, a number of writ Petitions arising in similar circumstances had been admitted in the meantime by the High Court and recovery of taxes stayed in those cases. In the circumstances it would have been a futile exercise on the part of these appellants to approach the Chief Judge, Small Causes Court. On this view it could not be" said that another adequate remedy was available to the appellants and having failed to make resort to it they had disentitled themselves to invoke the writ jurisdiction of the High Court."
9. In view of the above authority of the Supreme Court and also the judgments reported in Muhammad Siddique v. M/s Premier Tobacco Industries Ltd., Kotri (2), it seems that petitioners can invoke the writ jurisdiction of this Court.
10. The next question is whether the Petitioners are absolved from payment of the amount covered by the policy of the Group Insurance. It is contended by the Petitioners that their responsibility and liability was only to insure their permanent employees and they having done so, their liability was over. The petitioners rely on subsection (4) of the Standing Order 10-B. Order 10-B is as under :- "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.
(2) The employer shall in all cases be responsible for the payment of the amount of premier and for all administrative arrangement {{FOOT NOTE}}
(1) 1976 PLC 92 (2) 1981 PLC 670 {{FOOT NOTE}} ' 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.
(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 workmen 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."
11. The Petitioners rely on subsection (4) of the Order 10-B contending that they would be liable only if they had failed to have insured the permanent employees of their concern. In this case they have insured father of the Respondent No,
2. The arguments put forward on behalf of the Petitioners in this respect under the circumstances of this case, do not appear to be cogent particularly when the Respondent No, 4 pleads that the Policy of deceased Shah Riazuddin terminated. So far the termination of the policy is concerned as contended by Respondent No, 4, is yet another aspect of the present Petition but for the sake of arguments, suppose the policy had actually terminated the Petitioners in view of this, cannot be absolved from the liability of the cover of insurance and that the Petitioners would be legally liable to pay the amount of Rs, 15,000 the amount of insurance.
Primarily, therefore, the Petitioners are directly liable to pay to the permanent employees even if the Petitioners have complied with the obligations as contemplated under order 10-B. In the policy under which the contractual parties are the Petitioners and the State Life Insurance Corporation, the remedy of the employers lies to claim the amount of policy from the respondent No, 4 and it is not for the legal representatives of the deceased to agitate for claim before respondent No, 4.
Subsection (4) of Order 10-B does not help the petitioners in this respect.
12. The gratuity and provident fund are covered by the provisions of para. 6 of the Standing Order No,
12. Proviso to para. 6 aforesaid contemplated the existence of only one institution, either provident fund or gratuity and accordingly provision was made in para. (8) for recovery of only one of the benefits aforesaid. The learned Commissioner in his order dated 30th September, 1980 has made a very illuminating and pertinent reference to this aspect and has observed that the place of industrial progress and evolution of Labour Management Relationship and Collective Bargaining in one course, necessitated the establishment of both the institutions (namely of gratuity and provident fund). Section 15 of Payment of Wages Act has been amended to enable the Authority thereunder to recover such dues in respect of those employed in 'industrial establishment'. The Petitioners definitely and obviously are the industrial establishment. Therefor; the Petitioners are liable to pay not only gratuity but provident fund also as claimed by Respondents Nos. 2 and 3. On perusal of the order recorded by the Commissioner this proposition is clear and the order is just and fair. As regards the date of appointment of the deceased, the learned Commissioner has given a clear finding that deceased been employed in 1954. It would be wrong to state that deceased was employed in 1973.
13. The next aspect of this Petition refers to the liability of the Respondent No, 4 namely the State Life Insurance Corporation to pay the amount of Rs, 15,000 to the Petitioners. The contention raised by Respondent No, 4 is that the deceased Shah Riazuddin died after he reached the age of 60th birthday and, therefore, his Policy terminated. The Policy was being renewed from year to year and the contract between the parties was valid for year to year. It was a yearly contract. The list last submitted namely on 8th September, 1976 shows and indicates the age of deceased Shah Riazuddin to be 57 years. It has been argued by the learned counsel of the petitioners that since Respondent No, 4 had accepted the Policy for the last year, they are estopped under section 115 of the Evidence Act from taking the stand that Shah Riazuddin died after 60 years of age. According to the statement produced in this Court the last contract was covering a period of one year from 1976-77 wherein the age is mentioned to be 57 years. In this respect AIR 1939 Born. 161 is referred. It is held in this authority that once the age is admitted by the Insurance Company, there is no reason why they should not be held to be precluded from disputing the correctness of it unless the admission was procured by fraud. The relevant passage is quoted as below:-- "Once the age is admitted by the insurance company, there is no reason why they should not be held to be precluded from disputing the correctness of it unless the admission was procured by fraud. Where the age is not admitted, the burden of proving the age initially would be on the person claiming under the assurance but where the age is admitted, then on the principle under the Evidence Act that facts which are admitted need not be proved, it is for the company to prove that the admission of age was procured by fraud and that the representation as to age is untrue.
Fraud, of course vitiates even the most solemn transaction: but if there is no fraud, there is no reason why the company should not be held bound by the representation made by them to the assured that they will not dispute the correctness of the age admitted by them."
14. The Respondent No, 4 has not categorically or specifically claimed that there was fraud on the part of the petitioners although in the earlier lists supplied by the petitioners to the Insurance Company the age of the deceased was shown in one 59 years and in the second year 58. This is a matter between petitioners and the Respondent No, 4 and that this Court will refrain from making any observations on the factual aspect of the matter as such. The legal position however, is that since the Insurance Company has accepted in the last contract the age of the deceased to be 57 years. They are now precluded from coming forward to say that the deceased died after reaching the age of 60 years.
15. It may be added that the discrepancy in respect of the age of deceased, appears to be cleared at para. 21 of impugned common order of Commissioner. The para. Be quoted as under :- "The defence witness, however, admitted that the death certificate, Exh. A-1, produced by the applicant, showed that the age of the deceased, at the time of his death, was much less than 60 years and it was because of that he was retained in service until his death. The witness went on to add that the opposite party never replied to the Corporation's letter Exh. D-5 refusing the claim of the deceased. It was categorically affirmed that, from the date of Group Insurance under the list Exh. D-1 upto the time of the death of the worker, or the date of claim, the Corporation neither raised any objection with respect to the age of the deceased, nor the calculation of premia, nor refused to accept the premier up to the time of his death. All this, as it should, leads to the logical and irresistable conclusion that the Corporation was fully aware and sure of the fact that the deceased had not attained the age of 60 up to the time of his death. The age-issue is, obviously, an after through."
However, the petitioners were ordered to deposit the amount of insurance cover, vide para. 23 of the impugned order. It would be sufficient to say that petitioners may recover the insurance amount from Respondent No, 4 by either direct negotiations or having recourse to any other competent forum.
16. However, it is the responsibility and the personal liability of the petitioners under Order 10-B to effect insurance cover to the permanent employee or in case of failure they would pay up the Policy cover in case the employee dies. The matter as it stands now is that if the Policy is defective and the insurer succeeds in not honouring the Policy amount, in that case by implication of the Order 10-B, the employer is personally responsible for the payment of the Policy cover. The petitioners shall abide by the order of the Commissioner.
17. Under the circumstances discussed above the petition is dismissed. However, in the circumstances of the case, there will be no order as to costs.