DECISION ' These two connected appeals arise from the order of Commissioner, Workmen's Compensation and Authority under the Payment of Wages Act, Karachi East, whereby heirs of deceased, Faiz Hussain and Taj Muhammad working in the Ice Factory who lost their lives due to explosion in the factory, were awarded compensation of Rs,1,00,000 each.
2. Mr. Saifuddin Channa appearing for the proprietor of the factory has first argued that the factory employed less than 10 persons and the deceased who lost their lives were not therefore workmen as defined under the Workmen's Compensation Act, since under section 2(1)(n), Schedule II, clause
(ii) it is provided that 10 or more persons should have been employed in the manufacturing process of ice in the factory. Mr. Raja Shamsuzzaman has on the other hand argued that according to oral evidence the factory employed more than 10 persons because admittedly at least 7 persons worked in each shift of the factory and there were two shifts employing a total of more than 14 persons. That the documentary evidence being in possession of the factory proprietor was deliberately not produced, though summoned by the brother of the deceased worker.
3. It is true that the burden of proof lies on the heir of the deceased claiming compensation to establish that the ice factory in question employed more than 10 persons but they have done whatever they could under the circumstances to show that the factory employed more than 14 persons. On the other hand there is no evidence in rebuttal and no Registers have been produced to prove that the factory employed less than 10 persons.
4. It has next been argued by Mr. Saifuddin Channa that the compensation for death as provided in the Workmen's Compensation Act was originally Rs,30,000 but the figure was raised from Rs,30,000 to Rs,1,00,000 as compensation by the President's Ordinance. The life of the Ordinance is only months and instead of passing an Act another similar Ordinance wasulgated for continuance of the first Ordinance. That the Supreme Court has held that the President cannot usurp the powers of the legislature and go on repeating the Ordinance when the Assembly is in session. Mr. Raja Shamsuzzaman has on the other hand pointed out that the ruling quoted is reported in PLD 1994 SC 363 in the case of Collector of Customs, Karachi v. M/s. New Electronics Private Limited and 59 others. In that case the Bench consisted of two Judges Ajmal Mian, J. And Saleem Akhtar, J. Ajmal Mian, J. Held that there is no restriction as to the powers of the Governor or the President to re-issue an Ordinance containing identical provisions which were the subject-matter of the expired Ordinance. Saleem Akhtar, J. Gave a conflicting judgment that Article 89 does not permit re- enactment of the same Ordinance premulgated earlier and the Ordinance is therefore void and of no legal effect. The case was therefore referred to the third Judge Sajjad Ali Shah, J. Who held that: "After careful perusal of both elaborate judgments in conflict with each other I concur in the judgment proposed to be delivered by my learned brother Ajmal Mian, J."
' The majority judgment therefore prevailed.
5. Under the circumstances compensation of Rs,1,00,000 each has to be 8 paid to the heirs of the deceased workers as deposited with the Commissioner for Workmen's Compensation Act.
6. The orders of the Commissioner for Workmen's Compensation are accordingly maintained and the appeals are dismissed.