1. ' ZAFFAR HUSSAIN MIRZA, J.---This is an appeal against the judgment of a learned Single Judge of the Sindh High Court, dated 15th January, 1986, accepting the constitution petition filed by the respondents and quashing the order passed by the Commissioner for Workmen's Compensation and Authority for payment of Wages, West Division, Karachi, in favour of the appellant.
2. ' Briefly stated the facts leading to the present case are that the appellant was in the employment of Pakistan Tobacco Company Limited, respondent No,1 herein, in their factory at Karachi since 1952. In the year 1962, as a result of an industrial dispute raised by the Trade Union of Workers, a comprehensive award was made by the Industrial Court in respect of a number of demands.
3. Demand No,26 pertained to retirement of the workers which was accepted by the employer and accordingly the decision in the award reads as under:-- "The Company has shown its readiness to extend the retiring age from 55 years to 58 years with the following proviso:
(1) The worker is found fit after a medical check up on attaining the age of 55 years and subsequently remains fit for employment.
(2) The Company reserves the right of retiring a worker on the 31st December, of the year in which he reaches the age of 55 years if, during the preceding three years, the worker has a subnormal medical history, poor attendance or has an unsatisfactory service record.
(3) A worker will have the option of retiring from the Company's service with full benefits on the 31st December, of the year in which he attains the age of 55 years."
4. ' Admittedly the appellant attained the age of 55 years in the year 1977 and as he did not opt to retire from the Company service, he was subjected to medical examination in which he was found fit. Accordingly in terms of the aforesaid decision in the award he was continued in the employment of respondent No,1. According to the said respondent, the appellant was granted extension in service for one year expiring on 31st December, 1978. In December, 1978, the respondent was again required to undergo medical examination and was found not fit for further employment within the meaning of the award and therefore, further extension in his employment was refused.
5. The appellant was accordingly retired with effect from 31st December, 1978. Such intimation was conveyed to the appellant vide letter dated 13th December, 1978, informing him that his retirement was due on 31st December, 1978, from which date he shall stand retired.
6. ' On 16th December, 1980, the appellant submitted an application before the Commissioner for Workmen's Compensation, Karachi (respondent No,2) putting in a claim for Rs,20,000, under Standing Orders Ordinance, 1968. This application was contested by respondent No,1 and evidence was produced by the parties on the issues framed by respondent No,2 as under:--
(1) Whether any cause of action accrued to the applicant for the filing of an application under Standing Order 10-B of the Standing Orders Ordinance?
(2) Whether the respondents found the applicant unfit for giving 11th extension in service after the retirement?
7. Whether the applicant has any right to ask for extension of service period?
(4) Whether the applicant is entitled to the claim as claimed or part thereof?
8. ' The learned Commissioner for Workmen's Compensation, after considering the evidence produced by the parties gave his findings in respect of issues Nos.1 to 3 in the affirmative and on issue No,4 he held that although the appellant had claimed Rs,20,000 on account of Group Insurance but as he was entitled according to law to Rs,21,000 for permanent disability suffered by him by virtue of which he was retired prematurely from service, a total claim of Rs,21,000 was allowed vide order dated 5th March, 1984.
9. ' Being aggrieved by this order respondent No,1 challenged the same by a constitution petition before the Sindh High Court. The learned Single Judge who decided the constitution petition held that the Commissioner for Workmen's Compensation, respondent No,2 herein, had no jurisdiction to entertain the claim set up by the appellant. The view taken by the learned Judge was that the Labour Court had jurisdiction in such a matter in view of the provisions of section 25-A of the Industrial Relations Ordinance. It was further held by the learned Single Judge while interpreting the terms of the award relating to demand No,26 that the Company was not bound to retain a worker after he attains the age of 55 years even if he continues to be fit. Inferentially, therefore, it was concluded by the learned Judge that the appellant had no right to continue in employment beyond the age of 55 years. In the opinion of the learned Judge no claim for Group Insurance was accordingly justified. In this view of the matter the learned Judge found the order to be null and void.
10. Leave was granted in order to examine the view taken by the learned A Judge in the High Court to see whether, so Fas as the first point with regard to the jurisdiction is concerned was in conflict with earlier decisions of the Sindh High Court and secondly whether the appellant was entitled to Group Insurance after he had already crossed the age of superannuation.
11. ' Mr. Abbas Ahmad has submitted that the view taken by the learned Judge in the High Court to the effect that the appellant's claim was not entertainable by the Commissioner for Workmen's Compensation is in direct conflict with several judgments of the Sindh High Court. Before dealing with the submission of the learned counsel on this point, it will be convenient to refer to the relevant provisions of law, namely, Standing Order No,10-B, which reads as follows:-- "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 Employee's Social Security Ordin ante, 1965 (W.P. Ordinance No,X of 1965).
(2) The employer shall in all cases be respond Bible for the payment of the amount of premia and for all administrative arrangements whether carried out by himself or through an insurance company.
(3) The amount for which each workman siren be insured shall not be less than the amount of compensation specifia.Cl in Schedule IV to the Workmen's Compensation Act, 1923 (VIII of V23).
(4) Where the employer fails to have a perm anent 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 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 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)."
12. It will be observed that clause (1) of the aforesaid Standing Order 10-B requires the employer to have all his permanent workmen insured against "natural death and disability", and "death and injury" arising out of contingencies not covered by the two enactments mentioned therein. Clause ( 2) fixes the; liability for the payment of expenses for obtaining the insurance. Clause (3) fixes the rates at which each workman shall be insured. Clause (4) is relevant for the present controversy which deals with the liability of the empire in case he fails to have a permanent workman employed by him insured as required, so that the employer is liable to pay the amounts for which each workman was required to be insured either to himself or to his heirs. With regard to the forum and the procedure for adjudication of a claim under clause (4), the provisions of clause (5) are relevant, which are as herein under:-- "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."
13. ' The submission of the learned counsel for the appellant was that the learned hide had indeed followed the view, on the question of the jurisdiction of respondent No,2, expressed by the Labour Appellate Tribunal in the case of Crescent Jute Products Limited and another v. Noor Muhammad and others 1981 PLC 120. In that case a workman who had lost his eye-sight in the course of his employment as a result of which his services were terminated claimed Group Insurance under Standing Order 10-B by way of individual grievance before the Labour Court. The jurisdiction of the Labour Court was challenged and it was contended that the remedy of the workman lay before the Commissioner Workmen's Compensation. This contention was repelled by the Appellate Tribunal.
14. In this connection the Labour Appellate Tribunal observed as under:-- "This was a clear violation of his right guaranteed or secured to him under Standing Order 10-B of Standing Orders Ordinance, 1968. The Labour Court, therefore, was fully competent and justified to exercise its jurisdiction under section 25-A of the Ordinance. Although it has not been argued before me whether Noor Muhammad could approach the Commissioner under the Workmen's Compensation Act, 1923, yet even if he has such power, it will not affect the jurisdiction of the Labour Court. It is not denied that remedy under section 25-A before the Labour Court is more beneficial to the worker and the case is decided strictly in judicial manner by the senior trained and experienced judicial Officers. In case the jurisdiction is concurrent, the choice will lie with the workman invoking the jurisdiction. In the instant case, therefore, Noor Muhammad has rightly approached the Labour Court which was fully competent to adjudicate upon the issue involved in this case."
15. ' Learned counsel referred to the following passage from the judgment of the learned Single Judge in which he took somewhat similar view; "Mere mention in clause (5) of Standing Order 10-B of the Ordinance that all claims of a worker 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), (toes not mean that this gives exclusive jurisdiction to the Commissioner for Workmen's Compensation. Settlement of claims arising out of contingencies mentioned in clause (1), does not debar the jurisdiction of the Labour Court. In the instant case, although it is not argued before me whether the Commissioner under the Workmen's Compensation Act, 1923, has jurisdiction in such matter or not, yet it can be safely held that the Labour Court will have jurisdiction in such a matter provided the application is moved by the worker. It is not denied that remedy under section 25-A before the Labour Court is more beneficial to the worker."
16. ' It was urged that like the Labour Appellate Tribunal in the cited decision in Crescent Jute Products Limited, he adopted a reasoning whereby at best he was of the opinion that the Labour Court and Commissioner for Workmen's Compensation had concurrent jurisdiction. However, while recording his conclusion on this aspect of the case, the learned Judge, without mentioning any further reasons, stated. That respondent No,2 had no jurisdiction to pass the impugned order before him.
17. We are unable to appreciate how the learned Judge reached the finding that the Commissioner for Workmen's Compensation had no jurisdiction to entertain and adjudicate the claim of the petitioner under Standing Order 10-B. As pointed out the trend of the reasoning adopted by the learned Judge indicated that at the most the learned Judge was of the opinion that the Commissioner for Workmen's Compensation did not have exclusive jurisdiction in the matter and that the Labour Court will also have jurisdiction in such matters. After reproducing the definition of "worker" and "workman" as defined in section 2(xxviii) of the Industrial Relations Ordinance, the learned Judge carried on his discussion in the following manner- "A perusal of the above definition of worker/workman clearly shows that it does not include the widow/heirs of a deceased, worker. The reason seems to be obvious. The right under section 25-A is a personal right of a worker and ends with his death and consequently his heirs cannot invoke the jurisdiction of the Labour Court under section 25-A to claim any such right or benefit on behalf of the deceased worker. Their Lordships of the Supreme Court in Syed Mahmood Hussain v.
18. Pakistan Tobacco wherein the view taken that a grievance notice can be served through an advocate has been expressly disposed."
19. The reasons noted by the learned Judge in the aforesaid passage of his judgment tended to show that the heirs of a deceased workman will not be able to invoke the special remedy provided under section 25-A of the Industrial Relations Ordinance, which indeed is an argument in support of the view that the Commissioner under Workmen's Compensation Act is the forum for settling the claim of the nature under discussion. Similarly for the same reasons it will be difficult to hold that the Labour Court would be the exclusive forum for adjudication of a claim under Standing Order 10-B, inasmuch as the special remedy under section 25-A of the Industrial Relations Ordinance, would be only available to the workman, whereas a claim under Standing Order 10-B is admissible to the workman as well as, in the case of his death, his heirs.
20. ' In M/s. H. Nizam and Sons v. Commissioner for. Workmen's Compensation and another 1987 PLC 536, an earlier decision of the same High Court not noticed by the learned Single Judge it was held by the learned Judge who decided that case, that the Workmen's Compensation Commissioner had jurisdiction to determine a claim under Standing Order 10-B. In taking this view the learned Single Judge disagreed with the view taken by the Division Bench of the Balochistan High Court, in Pakistan Mineral Development Corporation v. Amir Khan and another PLD 1982 Quetta 87 and followed his own earlier view in M/s. Crescent Textile Mills v. The Commissioner for Workmen's Compensation and another 1980 PLC 239. The reasoning that prevailed with the learned Judge in the latter case appears from the following extract from the reported judgment:-- "I am also of the same view that paragraph 5 of Standing Order 10-B invested the jurisdiction to decide claims under Standing Order 10-B upon the Workmen's Compensation Commissioner. In my mind the important words in this para are the following: "I. All claims shall be settled II. In the same manner as is provided for the determination and recovery of compensation."
21. ' This para, therefore, is providing for the settlement of all claims and it is also prescribing the manner in which those claims are to be determined and, therefore, not only by implication, but according to me, clearly almost all the incidents of the Workmen's Compensation Act have been brought into play by the introduction of paragraph 5 under Standing Order 10-B. After all this is a beneficial legislation and the purpose is to provide a cheap and summary remedy for the claims of a workman and his heirs. Particularly the words "manner for determination" are the key words. The 'manner' is defined in Shorter Oxford Dictionary Edition at page 1201 as follows:-- "Mode of handling; the way in which something is done or takes place; mode of action or procedure."
22. ' To my mind the mode of handling would include the forum which is to handle and, therefore, manner would include the forum which has to determine the dispute or claim. In Aiyer's Law Lexicon, 1940 Edition, page 783 'manner' is defined as mode of action, way of performing or affecting anything; method, style, the way of managing; the way of doing a thing, the method of procedure; general method. Further on in the Law Lexicon, on the same page it is stated "manner", although it includes the forum, is much more comprehensive. It is synonymous with 'method' or 'peculiar way', and hence he who is authorised to prescribe the `manner' has authority to direct the peculiar way in which anything is to be done."
23. ' Therefore, according to my view when the legislature prescribed that the claim of the legal heirs would be settled in the manner provided for determination and recovery of compensation under Workmen's Compensation Act, 1923, then not only the procedure prescribed under the Workmen's Compensation Act was brought into play but also the same authority who decides claims under Workmen's Compensation Act was also invested with the authority to decide the claims of a workman or his heirs under Standing Order 10-B.
24. ' Another aspect of the case is that the legal heirs of a workman cannot make an application under section 25-A of I.R.O., 1969, as fairly conceded by the learned counsel for the petitioner. Now if the Workmen's Compensation Commissioner does not have the authority then obviously the only course left for obtaining the relief would be to approach the Civil Court and pay the court-fee, but the Civil Court will decide the same in accordance with Civil Procedure Code and it will, therefore, not be able to determine those claims in the manner of the Workmen's Compensation Act which prescribes complete procedure and which procedure alone is authorized under Standing Order 10- B(5), and therefore, jurisdiction of Civil Courts is out of question. Moreover, Mr. S.A. Channa had pointed out that section 19(2) of the Workmen's Compensation Act specifically excluded the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under that Act, required to be settled, proceeded or dealt with by the Commissioner or to enforce any liability incurred under that Act, and coupled with this bar under section 19 since para. 5 of Standing Order 10-B itself prescribes the manner provided under the Workmen's Compensation Act, therefore, this very para. 5 read with section 19(2) of the Workmen's Compensation Act would completely exclude the jurisdiction of the Civil Court. The net effect is that neither the Labour Court nor the Civil Court would have the jurisdiction to decide the claim of legal heirs of a worker under Standing Order 10-B, I cannot conceive that the Legislature had given a right to the worker or his legal heirs of claiming a certain relief, but had failed to provide the forum from where the relief can be obtained. Para. 5 of Standing Order 10-B provided that forum by making a provision that all claims shall be settled in the same manner as is provided for determining or recovery of compensation under the Workmen's Compensation Act. Another aspect which is relevant is that section 10 of the Workmen's Compensation Act allows the claim to be filed within three years while section 25-A of I.R.O. 1969 allows only a period of about 3 months or so for making the claim and in this view of the matter also the jurisdiction of the Workmen's Compensation Commissioner is more beneficial from the point of view of the aggrieved party.
25. ' Since the misery of the legal heirs of a worker, to be left without any source of money on the death of a worker, was being remedied by the Legislature, therefore, I would hold that the Legislature was providing a complete methodology for providing relief to the worker or the legal-heirs in case the employer failed to effect insurance on the life of a permanent worker and that methodology was provided in form of the procedure and the authority under the Workmen's Compensation Act being brought into effect by para. 5 of Standing Order 10-B. The provisions of an Act have to be construed in a manner that it advances a relief and suppresses the mischief, particularly so when we deal with beneficial legislation like West Pakistan (Industrial and Commercial Employment) Standing Orders Ordinance of 1968."
26. ' Another learned Judge of the same High Court in M/s. Crescent Textile Mills v. The Commissioner for Workmen's Compensation and another 1980 PLC 239, in which the question was whether the Commissioner for Workmen's Compensation was competent to determine a claim of this nature had also held that clause (5) of Standing Order 10-B "refers not only to the procedure but also to the authority prescribed for investigation and determination of the claim". Similar view was taxen by another Judge of the same High Court in an earlier case in Pakistan Engineering Co. Ltd. v.
27. Commissioner Workmen's Compensation and another 1980 PLC 752.
28. ' In the light of the aforesaid decisions, it was contended by the learned counsel for the appellant that the word "manner' read in its proper context in clause (5) of the Standing Order 10-B clearly imports not only the procedure but also the forum for determination and a recovery of a claim by a workman or his heirs, in the same manner as provided under the Workmen's Compensation Act, 1923.
29. ' On the other hand Mr. Noor Muhammad, learned counsel appearing on behalf of the respondent No,1 contended for a more restricted interpretation of the word "manna' as it occurs in clause (5) of Standing Order 10-B. He urged that the manner imports only the procedural provisions relating to the determination of a claim under the Workmen's Compensation Act and not the forum. On this basis he submitted that the learned Single Judge rightly held that the Commissioner for Workmen's Compensation did not have jurisdiction to entertain and determine the claim of the appellant.
30. Learned counsel referred us to the Quetta case of Pakistan Mineral Development Corporation (supra) and M/s. Pakistan Tobacco.Co. Ltd. v. Muhammad Siddique 1978 PLC 363. In the case of Pakistan Mineral Development Corporation, the question of the competent forum for determining the claim under Standing Order 10-B was not directly in issue. However, the learned Judges of the Division Bench expressed opinion as obiter dicta to the effect that reference to the provisions of Workmen's Compensation Act was made only for a limited purpose, to the extent of the procedural provisions for the settlement of the claims and recover of the amount. According to their view clause (5) of Standing Order 10-B did not contemplate the constitution of forum, as no such specific mention has been made in the said provisions. As the question was not directly relevant, the judgment does not exhaustively deal with the question of law whether the Commissioner for Workmen's Compensation, was competent to entertain the application in respect of group insurance. For instance learned Judges did not refer to such a claim being preferred by the heirs of the workman who cannot obviously invoke the jurisdiction of the Labour Court. The other case M/s. Pakistan Tobacco Co. Ltd. v. Muhammad Siddique (supra) is a judgment of the Labour Appellate Tribunal, in which also similar view was expressed that clause (5) of Standing Order 10-B simply relates to procedure to be adopted by the Labour Court and the said provisions did not lay down that the jurisdiction to decide the claim was vested in the Commissioner appointed under the Workmen's Compensation Act. No reasons whatsoever are assigned in support of this view.
31. Consequently, the judgment is of no value or assistance in resolving the controversy presently under discussion.
32. ' Whether the Labour Court as well as Commissioner have both concurrent jurisdiction in the matter of an application by a workman as in the present case, is not the question for determination before us. The limited question for decision in this case is whether the Commissioner under the Workmen's Compensation Act, 1923, was competent to entertain and decide such application. The relevant words to be noted in clause (5) of Standing Order 10-B are "shall be settled in the same manner as is provided for the determination and recovery of compensation". The clear import of the provisions of clause (5) is that a claim of a workman or his heirs under clause (4), is to be determined in the same manner as is provided for "determination" and "recovery' of compensation under the Workmen's Compensation Act, 1923. Therefore, the unambiguous intention was to refer to the aforesaid Act of 1923 and proceed in the same manner as that Act requires for determination and recovery of claims to compensation. Now compensation under the Workmen's Compensation Act is determined and recovered in the manner provided by Chapter III containing section 19 to section
31. However, sections 19 and 31 are particularly relevant for the present discussion. In the former section the question of liability to pay compensation and as to the amount thereof is to be settled by the Commissioner and the Civil Court's jurisdiction has been excluded. The latter section lays down the manner of recovery of the amount payable by any person under the Act, by the Commissioner as an arrears of land revenue or by distress and sale of the immovable property belonging to the person by whom amount is payable, or by attachment and sale of the immovable property belonging to such person. Clearly, therefore, the language employed in clause (5) of Standing Order 10-B has reference to the forum, which would be Commissioner for Workmen's Compensation. Therefore, we subscribe to the view that was expressed in the case of M/s. Crescent Textile Mills v. Commissioner for Workmen's Compensation and another 1980 PLC 239. We are accordingly unable to agree with the view expressed in the impugned judgment that the Commissioner was not competent to entertain the application of the appellant.
33. ' Coming now to the second point pertaining to the terms of award relating to the benefits of group insurance. As already observed the learned Single Judge, on examination of the terms contained in the award reproduced herein above under Demand No,26 held that the appellant having crossed over the age of superannuation of 55 years was not entitled to the benefit of group insurance. It will be appropriate to reproduce hereunder the finding of the learned Single Judge in own his words:-- "It is pertinent to notice that retirement age in the petitioner's company is 55 years. On reaching this age of retirement in 1977 and accordingly in conformity with the practice followed in the establishment the respondent No,2 should have retired on the 31st of December, 1977. The petitioner by their letter dated 22-12-1977 extended his period of employment with the petitioner company until 31st December, 1978. During the period of 1978, the respondent No,2 was not giving the performance as required for his job and he was frequently taking leave. The medical officer of the petitioner's factory certified that he was not fit for extension in employment for another year. As such the petitioner by their letter dated 27-12-1978 intimated him that he was not found fit for extension in employment for another year, so he was accordingly retired with effect from 31st December, 1978.
34. ' Under Demand No,26 an employee or worker may be retained in service after the age of 55 years and such retention shall not be made except in special circumstances. It, therefore, shows that even according to Demand No,26, no legal right can be said to exist in relation to any worker to continue in service after the age of 55 years. It is a discretion which the petitioner will exercise in some cases. Such a Demand No,26 cannot be said to form any right in any worker to continue in employment after the age of 55 years. It cannot be urged that if the employer decides to retain the employment of a worker after the age of retirement for one year it must retain him for further period. The retention of a worker after the period of retirement depends upon his fitness."
35. ' On the aforesaid reasons the learned Judge formed the opinion that it was discretionary for the employer even if the condition of fitness is fulfilled by a worker after the age of. 55 years, to retain him in service or not. From this the learned Judge concluded that the discretion exercised by the management not to retain the appellant in service, had no nexus with any disability, with the result that the claim to benefits under group insurance was unfounded.
36. We are unable to agree with the interpretation adopted by the learned Single Judge of the terms of the award, as postulated by him in the foregoing part F of his judgment. The very opening lines of the award in respect of Demand No,26, make it clear that the retiring age was extended from 55 years to 58 years, subject, however, to certain conditions. Condition No,1 in the proviso is to the effect that the worker is found fit after a Medical checkup upon attaining the age of 55 years and subsequently remains fit for employment. In other words by agreement the company had extended the age of retirement from 55 years to 58 years, provided that the worker was found fit upon attaining the age of 55 years and continues to remain fit until his retirement at the age of 58 years. The remaining two conditions are not attracted in the present case and, therefore, do not require to be considered. If the two conditions mentioned are fulfilled the age of superannuation is automatically extended to 58 years. It is, therefore, not correct to say that any discretion vested in the employer to retain the worker. In terms of the award the employer will be bound to retain the worker in service if he is found fit on attaining the age of 55 years and remains fit thereafter. This being a right created by a settlement we are also unable to agree that the said settlement created no legal right in favour of worker to continue in service after the age of 55 years.
37. ' However, the admitted position is that the company had agreed to extend the service of the appellant until 31st December, 1978. The learned Judge in the High Court rejected the claim of the appellant for the reasons that his service was terminated. In exercise of the discretion by the management and, therefore, the question of his suffering the disability as a result of which he lost his service does not arise. Paragraph 1 of the proviso to the settlement with regard to the retirement age, clearly envisaged medical examination of the worker upon his attaining the age of 55 years and the words "and subsequently remains fit for employment", being a clause added conjunctively to the opening clause, by the use of the word "and", clearly imports that the fitness contemplated in both clauses, referred to medical fitness. Therefore, the first proviso means that upon being found medically fit upon attaining the age of 55 years a worker would be entitled to continue in service, if he remains medically fit until the age of 58 years. From the written statement of the first respondent before the Commissioner, it appears that their case was that they had the discretion to retain him after the age of 55 years, because it depended on their satisfaction with regard to his fitness for work or rendering a satisfactory duty unconnected with medical fitness. That however, cannot be the construction of the language employed in the settlement or award. The case of the appellant in the application was that he was prematurely retired on account of medical unfitness by the medical officer of the first respondent. This fact was not specifically denied in the written statement. However, in paragraph 9 of the written statement, the said respondent admitted that further extension was not granted to the appellant as "he was not found physically fit for further extension". The finding of the Commissioner for Workmen's Compensation was that the appellant was retired on account of disability, as the factory medical officer did not fmd applicant fit for duty.
38. ' This finding was not challenged before the High Court and there seems to be evidence on the record to support the finding. Mr. Zahid Razz, Personnel OffiCer of respondent No,1 had produced medical report in the evidence before the Commissioner (not placed on the record in this appeal). According to his assertion the appellant was not declared physically disabled but "was declared unfit for the extension of his service". He further stated as under:-- "In view of the medical opinion in the performance of the applicant, it was not desirable to further extend the tenure of the service of the applicant."
39. ' In his cross-examination the said witness further stated as hereunder:-- "The assessm ent of the applicant by M.O. Was based on the attendance of the applicant, and his Physical Examination. I see Exb. D-7 and say that no reason has been given by the Medical Officer for the retirement of the applicant. It is correct to say that D-7, and D-8, do not have the column of disability."
40. ' It was submitted before us by the learned counsel for the appellant that he had rendered service with the respondent No,1 for 27 years. In the last year of his service, however, the appellant had developed some eye problem. On the recommendation of the Medical Officer of respondent No,1 the appellant was referred to an Eye Specialist, Dr. Qamar Muhammad Khan who operated upon him. According to the petition in this case and the submission of the learned counsel, due to the lack of the proper post operative care, his eyes were damaged and he lost eye-sight partially. It was further submitted that he had sought sick leave for some length of time. The appellant was found medically unfit on the basis of disability of eye-sight, as his duties comprised that of an ordinary peon.
41. Be that as it may this is a question of fact and the finding thereon was not agitated before the High Court with reference to the evidence. As the appellant had suffered the disability, admittedly during the extended period of his service up to 31st December, 1978, clearly his case fell within the ambit of Standing Order 10-B and he was entitled to claim compensation under clause (iv) of the aforesaid Standing Order.
42. ' Mr. Noor Muhammad, learned counsel for respondent No,1 sought to urge that in any case, the appellant was not a permanent workman after the age of 55 years, during the extended period of his service, with the result that he would not be entitled to the benefit of Standing Order 10-B.
43. According to his submission he became a contingent worker whose continuance in service depended upon his fitness. When his attention was drawn to Standing Order No,1, he conceded that there is no classification as a "contingent worker" in the said Standing Order. But he submitted that this category had been created on account of the settlement between the parties. This question does not appear to have been raised at any stage and otherwise also we find no force in it. Clearly the appellant was a permanent workman as he was engaged on work of permanent nature likely to last more than 9 months, as required by the definition of the expression in clause (b) of Standing Order No,1.
44. ' For the foregoing reasons we accept the appeal of the appellant and set aside the judgment of the learned Single Judge of the High Court with the result that the order passed by the Commissioner for Workmen's Compensation dated 5th March, 1984, shall stand restored. The appeal is accordingly allowed with costs in these terms.