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Appeal No. LHR-29 of 1975/Pb., decided on 27th January 1976.

(a) Workmen's Compensation Act (VIII of 1923)

--- S. 10 read with Pakistan Essential Services (Maintenance) Act (LIII of 1952), S. 7-A-Words or any other law used in S. 7-A of Pakistan Essential Services (Maintenance) Act, 1952---Cover Workmen's Compensation Act, 1923 also-Petition under Workmen's Compensation Act, 1952 by workman covered by Pakistan Essential Services (Main tenance) Act, 1952, held, not maintainable before Commissioner.

(b) Workmen's Compensation Act (VIII of 1923)

---S. 2(n)-person employed by Sui Northern Gas Pipelines Ltd. employed for casual renovation/alteration of office building and not for company's trade or business-Not a "workman" for purposes of Act.

The West Pakistan Water and Power Development Authority, Comilla v. Mohar Ali Saiyal and others 1970 P L C 747 distinguished.

Aftab Ahmad Khan for Appellant.

Nazir Ahmad IVaz for Respondent.

Date of hearing: 7th January 1976.

This is an appeal against the order dated 2-7-1975 of Commissioner for Workmen's Compensation, Multan, awarding compensation of Rs. 12,000 to Hussain Fatimi, respondent.

2. Respondent was employed as an overseer on monthly wages of Rs. 442 with Sui Northern Gas Pipelines, Multan appellant. His duty was to check mixture. On 14-4-1972 he felt pain in his right hand. On the following day his right had got swollen and he went to the Company's doctor for treatment but could not be treated, as he was not permanent employee. The doctor asked him to go to a private medical practitioner. His right hand got permanently disabled. He then went to Lyallpur and contacted Company's doctor Asghar Ali Khan, who refused to treat him as he was a casual employee. Thereafter he filed a petition claiming compensation before learned Commissioner, who accepted the same and granted compensation to him as already mentioned above.

3. Aggrieved by the above order the appellant has preferred this appeal.

4. The learned counsel for the appellant raised the following legal objections

(1) That in view of the Pakistan Essential Services (Maintenance) Act, 1952, being applicable to the company, the learned Commissioner had no jurisdiction to entertain the petition under the Workmen's Compensation Act.

(2) That since the respondent was employed as a casual worker he did not come within the purview of the definition of a workman as laid down in section 2(n) of the Workmen's Compensation Act, 1923.

These objections were also raised but were rejected by the learned Commissioner.

Legal Objection No. 1.-Pakistan Essential Services (Maintenance) Act was amended by Pakistan Essential Services (Maintenance) (Amendment) Ordinance III of 1965. Section 7-A was inserted which reads as follows: -

The provisions of this Act shall have effect, notwithstanding to the contrary contained in the Trade Unions Act, 1926 (XVI of 1926) or the Industrial Disputes Ordinance, 1959 (LVI of 1959) or any other law.

On this point the learned Commissioner made the following observa tions

In my humble opinion section 7-A has the overriding effect so far as Trade Unions Act, 1926 and Industrial Disputes Ordinance, 1959, or any other law on the subject is concerned but does not have the overriding effect so far as the Workmen's Compensation Act is con cerned.

This conclusion in my view is not correct because the words "or any other law" are not confined to Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959. If the interpretation given by the learned Commissioner had been correct then there was no necessity for adding the words "or any other law" because section 8 of the General Clauses Act would have been applicable.

In view of the, above this legal objection is upheld.

Legal Objection No. 2.-According to section 2(n) of the Workmen's Compensation Act a workman means any person other than a person whose employment is of a casual nature.

The point for determination is as to whether the employment of the respondent was of a permanent or casual nature. The learned Commissioner had overruled this objection on the ground that there was no documentary evidence produced to show that the employment of the respondent was of a casual nature.

On going through the record I find that the respondent had produced a letter Exh. P-13 dated r'5-7-1971 from the company which reads as follows;-

As the renovation/alteration work on the 5th floor of Monnoo House has been closed your services are being terminated w. e. f. 15-7-1971. We would, however, like to hire you again on any other occasion as and when required.

Resumed duty on 18-7-1971.

R. W. I. Shakir Husain, Administration Clerk stated that since respon dent was a casual worker, he was not medically examined. He also stated that the respondent has been employed for the following periods

From 9-3-70 to 15-2-71

17-2-71 to 15-7-71

and 19-7-71 to 15-3-73

Thus from the above evidence it is clear that the employment of the respondent was of a casual nature and not of a permanent nature.

The learned representative far the respondent, however, contended that in order to exclude an individual from the category of workman under the Workmen's Compensation, it has to be established that not only the individual employment was of a casual nature, but also his employment was for a purpose other than that of the employer's trade or business. In support of his contention he relied on the judgment of Dacca High Court in the case "The East Pakistan Water and Power Development Authority, Comilla v. Mohar Ali Saiyal and others" (1) where in it was held

In order to exclude an individual from the category of a workman he must suffer from two defects, that is to say, he must be, firstly, a person whose employment is of a casual nature, and, secondly, that his employment should be for a purpose different from the employer's trade or business the word and in clause (n) of section 2 (1970 P L C 747) of the Workmen's Compensation Act, 1923 is conjunctive and cannot be treated disjunctively, that is to say, the existence of one of the factors will not exclude a person from the category of a worker; it must be shown that the person's employment w ., casual in nature and the same was other than employer's trade of business.

In the present case the appellant company's trade or business is to supply Sui Gas and not to erect buildings, therefore the respondent's employment was for a purpose other than that of the appellant company's trade or business. This ruling, therefore, is of no help to the respondent.

In the result this objection is upheld.

5. I, accordingly, accept the appeal, set aside the order of the learned Commissioner, and dismiss the application filed by the appellant.

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