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Constitutional Petition No. D-768 of 1983, decided on 6th October, 1982.

---S.3-Accident arising out of and in course of employment Person meeting accident while performing duty or while doing an act necessary in performance of duty-Would be entitled to compensation-Person meeting accident at a time and under circumstances wholly unconnected with his duty-Would not be entitled to compensation Test-Whether the person was on an errand of his own or whether he was at a place on account of his duty--Deceased employed as a helper on working of water supply from a well at Railway Station--Death occurring at about midnight due to fall in the well-Contention that according to duty roster deceased went off at 6 p. m. and as such was not on duty at time of accident-Concurrent findings of Commissioner and Labour Appellate Tribunal that there was no electricity at the small Railway Station and water wag to be made available even at night and mere fact that deceased was present at night hour would indicate that there was a purpose of his presence at that time challenged before High Court in constitution petition-Conclusion that deceased was at the Railway Station for purposes of per forming his duties, in circumstances, upheld and constitution petition dismissed by High Court-Provisional Constitution Order (1 of 1981), Art 9. A & B

Maqsoodunnisa v. Indo Pak Corporation P L D 1961 Kar. 219 ; Mst. Zainub v. Ghafoor Textile Mills P L D 1972 Kar. 438 ; Messrs Datsun Service Station v. Abdul Aziz P L D 1970 Kar. 584 and Karachi Shipyard and Engineering Works v. Samundra Begum P L D 1967 Kar. 700 ref.

Ch. Rashid Ahmad for Petitioner. .

Date of hearing ; 6th October, 1983.

-The present petition has been filed by Messrs Pakistan Railways to challenge the concurrent orders passed by the Commissioner of Workmen's Compensation and in the appellate forum by the Sind Appellate Labour Tribunal, Karachi, where by compensation of Rs. 7,500 was awarded to respondent Imamuddin in respect of the death of his son M. Ahmed.

At all relevant times the deceased Ahmed was employed as a helper on the work of water supply from the well at Jhimpir Railway Station. It is stated that the said workman met his death on the night intervening 28th and 29th March, 1980 at about midnight, when he fell into the well. His body was taken out on the next morning and he was found to be dead. The case of respondent No. 3 was that the deceased died on account of accident arising out of and in the course of his employment.

The fact of the death of the deceased is not in dispute. Mr. Ch. Rasheed Ahmed stated that section 3 of the Workmen's Compensation Act would not be attracted because at the time of his death the deceased was not working and further that the deceased had invited his death by sleeping on a 2 feet wide wall of the well in which he fell. In short the contention is that death did not arise out of and in the course of employment.

There is no doubt that a roster of duty is maintained at the Railway Station and such roster was produced before the Commissioner for Workmen's Compensation during the proceedings. Such roster of duty shows that the deceased went off his duty at 6-00 p. m. on that day. But it is common knowledge that at small Stations like Jbimpir, where there is no electricity (as admitted by Mr. Ch. Rasheed Ahmed) water is to be made available even at night time. The very fact that the deceased was present at the Station during the night would go to indicate that there was a purpose in his presence at that time, as otherwise he should have normally gone to his house. On such point the Tribunals below had considered the evidence and recorded findings of fact. Even Mr. Ch. Rasheed Ahmed has not disputed the presence of the deceased at the station at the time he met his death. He, however, wishes us to accept a statement made by witness Muhammad to the effect that the deceased had fallen into the well because he had slept on the wall of the well which is 2 feet wide. This statement only needs to be read in order to be rejected. There is no evidence that the deceased was insane or mentally deranged so as to take the risk of sleeping on the wall of the well. The width of the well being only 2 feet it would be very difficult if not impossible for a person to sleep on it, more so as the wells in this part of the country are round wells and, therefore, a person will have to take a curve in order to place his body along the curve. We have no hesitation in agreeing with the appreciation of the evidence by the Tribunals below.

Mr. Ch. Rasheed Ahmed has, however, invited our attention to some reported cases. He has relied on the case of Maqsoodunnisa v. Indo Pak Corporation (P L D 1961 Kar. 219) The ratio in the case is that if the workman was not discharging duty in the course of employment at the time of his death he was not entitled to compensation. The factual position is that case was that the workman met his death when he was going to take his night meal at his house. The second case is Mst. Zainub v. Ghafoor Textile Mills (P L D 1972 Kar. 438) The learned Judges were dealing with the case of a workman who was killed while he was returning to his house after duty, by a previously discharged warkman who had a private grievance. The' third case is of Messrs Datsun Service Station v. Abdul Aziz (P L D 1970 Kar. 584). The Judge .in that case laid down that no hard and fast rules could be enunciated and by reference to a wealth of English Law on the subject the learned Judge came to the conclusion that in order to entitle a person to compensation it should be shown that injury was the direct result of discharge of his duties. The last case relied on was Karachi Shipyard and Engineering Works v. Samundra Begum (P L D 1967 Kar. 700). In this case the employee met his death while travelling in a public conveyance which he was not under obligation to use. The ratio in all these cases appears to be that if it is shown that a person met his death while performing his duties or while doing an act which was necessary in the performance of his duties he would be entitled to compensation. On the other hand if it is shown that a person met his death at a time and under circumstances wholly unconnected with his duties, he would not be so entitled. The concept of the English Law that the test is whether the person was on an errand of his own or whether he was at a place on account of his duties, will be directly inferred into the circumstances of such case. .

That being the test we proceed to analyse the evidence.

As stated above Jhimpir is a very small station where there is no electricity and water may be required for fueling the engine tanks and also for the passengers in the trains that pass at night. It is common knowledge that roster of duties is not strictly followed at such small stations. The very circumstance of the deceased being at the station during the night would indicate that he had been kept there at that time for the performance of his duties. The petitioner bad attempted to build up a case that deceased wanted to sleep on the wall of the well and, therefore, he has, chosen to be absent from his house. To such extent we are in complete agreement with the findings of the fact recorded by the Appellate Tribunal. The conclusion that the deceased was at the station for the purposes of performing his duties appears to be correct in the circum stances of this case. In these circumstances hasd no substance in this petition which we dismiss in limine.

A. F. Petition dismissed.

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