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Constitutional Writ Petitions Nos. 94 and 95 of 1984, decided on 30th April, 1985.

‑‑S. O. 12 (2)--Group insurance‑Competency to deal with Workmen's Compensation Commissioner, held, had power to deal with group insurance and with gratuity of heirs of deceased worker.

P L C 1976 Lah. 22 and 1980 P L C 239 (243.) ref.

1980 P L C 222 fol.

‑‑S. O. 12 (2) ‑ Civil Procedure Code (V of 1908), O. IX, r. 6 Ex parte proceedings‑Validity of ‑ Plea that proceedings before Workmen's Compensation Commissioner were without notice repelled‑ Plea without notice, held, was unfounded in view of fact that orders awarding gratuity and compensation showed that matter had been adjourned date after date and thereafter it had been treated as ex parte ‑ Petitioner having failed to produce case diary maintained by Workmen's Compensation Commissioner in this respect, plea of no notice, held, was unsustainable‑Transferee Commissioner was not bound to issue fresh notice when matter was already treated ex parte and was ripe for orders.

‑‑‑S. O. 12 (2) ‑Provisional Constitution Order (1 of 1981), Art. 9 Evidence of fact‑Quantum of‑Evidence produced having been treated as sufficient by Workmen's Compensation Commissioner, held, could not be treated otherwise in writ petition‑Writ petition was not meant to weigh sufficiency or insufficiency of evidence --Sufficient evidence on record to sustain findings of tribunal avail able‑There being some evidence on record, such case could not be treated as case of no evidence.

P L D 1963 S C 663 (671) ref.

(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑S.O. 12‑Constitution of Pakistan (1973), Art. 199‑Constitutional jurisdiction‑Evidence‑Competency of Tribunal (Workmen's Compensation Commissioner) to consider photostat copy of identity cards and affidavit‑Such Tribunal, held, was competent to consider photo copy of identity cards as well as affidavit of wife of deceased which were uncontroverted and were supported by admitted letter of petition‑Mere technicalities, held, could not be allowed to defeat orders of Tribunals of competent jurisdiction High Court would not sit as Court of appeal when dealing with writ petition‑High Court was concerned only with question whether Tribunal had acted within its jurisdiction‑Mere fact that such decision was incorrect would not render decision of Tribunal as without lawful authority‑Tribunal acting within jurisdiction is competent to decide matter rightly or wrongly.

P L D 1974 S C 139 and P L D 1981 S C 246 ref.

Fazal Bhoy for Petitioner.

Mazhar Ali B. Chauhan for Respondents.

Date of hearing : 22nd April, 1985.

These are two writ petitions filed by the same petitioner against the same respondents and they relate to the claim of group insurance and gratuity which have been allowed by Workmen's Compensation Commis sioner, Karachi, in respect of the group insurance and gratuity in respect of the husband of respondent No. 2, namely, Ahmed son of Bilal, who was alleged to be an employee of the petitioner by orders dated 8th March, 1984,

2. The relevant facts are that respondent No. 2 filed two applications under Standing Order 12 (8) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and under Standing Order No. 10‑B of the same Ordinance.

It was alleged that Ahmed, the husband of respondent No. 2 had expired on 9th November, 1980 who was employed with the petitioner since 1947 and the last wages were Its. 30 per day and therefore Its. 21,000 as gratuity was liable to be paid. Group Insurance amount was claimed at Rs. 15,000 because the wage of Ahmed was between Rs. 509 and Rs. 1,000. The copies of National Identity Card and card issued by the Union of the deceased were filed with the application. It was further stated that Ahmed bad received compensation from the present petitioner in 1959 and copies of two letters issued by the petitioner were produced. The petitioner filed objections in both cases and stated that they did not find any worker by name of Ahmed on their pay rolls since 1972 and that the two letters filed by the respondent No. 2 only showed that in 1959 Ahmed may have worked as a casual labourer with them and that neces sary dues were offered to him at that time. It was denied that Ahmed had been in their employment even as a casual labourer. However, after filing their objections the petitioner did not attend the proceedings and the respondent No. 1 proceeded against them ex parte. The respondent No. 2 was directed to file ex parte proof which she did.

3. On the basis of the applications and the ex parte proof of affidavit the respondent No. 1 came to the conclusion that Ahmed had been in continuous employment of the petitioner from 1947 upto the date of his death 9th November, 1980. And that he was not paid any group insurance money or gratuity. The national identity card and the identity card issued by Union of Ahmed were taken into consideration and the correspondence that passed between the present petitioner and Messrs Calcutta claim Bureau with regard to claim for compensation in respect of Ahmed son of Bilal where Ahmed was paid compensation by the petitioner in 1959 was taken into consideration. It was noted that the petitioner had disappeared after filing the reply statement and therefore their denial of employment was treated as of no avail. The affidavit of respondent No. 1 was treated as a corroboration of her application which had remained uncon tested and unrebutted. On that basis the gratuity of Rs. 20,000 was awarded and group insurance of Rs. 15,000 was awarded sepa rately.

4. Mr. Fazal Bhoy, learned counsel for the petitioner in both the petitions has submitted that Workmen's Compensation Commissioner had no jurisdiction to deal with the question of group insurance. He referred to 1976 P L C 22. However, I have dealt with this matter in 1980 P L C 239 where I have come to the conclusion that neither the Labour Court nor the Civil Court have jurisdiction to decide the claim of heirs of a workman under Standing Order 10‑B and that the Workman's Compensation Commissioner could deal with the same. The same view was taken by another Hon'ble Judge of this Court in 1980 P L C 222.

5. I, therefore follow the view taken in 1980 P L C 222 and 239, and repel the contention of the petitioner counsel that the Workmen's Compensation Commissioner had no jurisdiction to deal with the group insurance.

6. In respect of claim of gratuity under Standing Order 12 (8) of West Pakistan Standing Orders Ordinance, 1968, it is enough to mention that Standing Order 12 (9) clearly invests the Commissioner for Workmen's Compensation with the jurisdiction to deal with the cases of gratuity of heirs of the deceased worker.

7. Mr. Fazal Bhoy then contended that the proceeding were without any notice to the petitioner as no date had been given to the Accountant of the petitioner who had filed the objections on 23rd February, 1982. This submission is unfounded in view of the fact that the orders award ing the gratuity and compensation show that the matters had been adjourn ed date after date and thereafter it was treated as ex parte. The petitioner has failed to produce the case diary mentioned by the Workmen Compensation Commissioner in this respect and, therefore, the submission B that the petitioner had no notice of hearing after 23rd February, 1984 is clearly unsustainable. Moreover, there is no affidavit of the Accountant filed to support the plea that no date had been fixed after 23rd February, 1984 in both the cases. This submission is therefore again found to be not substantiated.

8. It was further contended that no notice was issued by the Transferee Commissioner. This submission is again without any substance because by the time that the new Commissioner had taken over the two cases the petitioner had been treated as ex parte and the matters were ripe for orders and hence there was no necessity of issuing any fresh notice to the petitioner who had failed to pursue the case.

9. The petitioner's counsel then contended that the two orders area not based on any evidence. This submission is not correct as the respondent No. 2 had clearly proved that her husband Ahmed had receives compensation from the petitioner in 1959 and that his National Identity Card and the identity card issued by the Union showed that he was an employee of the petitioner. The same was treated as sufficient evidence by the Workmen's Compensation Commissioner and I am not competent to say that this should not have been treated as sufficient evidence. The writ petition is not meant to weigh the sufficiency or insufficiency of evidence. The present case cannot be regarded as a case of no evidence because there is some justification on record for treating Ahmed as the employee of the petitioner and in fact the petitioner had admitted that in 1959 they had paid some compensation to Ahmed and hence the Workmen's Compensation Commissioner was justified in accepting the word of respondent No. 2 as gratuity.

10. The decision by a tribunal can be based on the evidence which is regarded by the tribunal as sufficient and this High Court in constitutional jurisdiction cannot challenge the quantum or the quality of evidence. It was competent to the Workmen's Compensation Commissioner to consider the case proved on the material placed before it. In these circumstances ii cannot be asserted by the petitioner that it was an arbitrary or capricious decision by the Commissioner.

11. The petitioner's counsel had cited P L D 1983 S C 663 (671) where it was observed as under:

"There can be no doubt of the duty of the Court to ensure even when proceeding ex parte, that its decision is in accordance with facts, which should be ascertained with as much care, as was possible in the presence of the contesting party."

With respect I am bound by the observations made by the Supreme Court. But in the cited case of the Supreme Court the Supreme Court had come to the conclusion that enough material had been placed in proof of the claim and they had, therefore, observed that, "there seems no occasion to doubt that the fact of the loss and the evaluation of the goods which were lost was carried out according to recognised principles applicable to contracts of Marine carriage and the practice in marine insu rance. "Therefore every case has to be scrutinised on the basis of its own facts and circumstances.

12. 1n the present two petitions before me I have no hesitation in coming to the conclusion that the Workmen's Compensation Commissioner had proceeded in a correct manner and was justified in treating the docu ments and the identity cards produced before him as sufficient evidence to sustain the claim of respondent No. 2.

13. Petitioner's counsel had submitted that the affidavit of Mst. Bachai was not proper and that the photo copies should not have been admitted. These are mere formal pleas taken by the learned counsel. It was competent for the respondent No. 1 to take into consideration the photo copy of the two identity cards as well as the affidavit of Mst. Bachai which were uncontroverted and were also supported by the admitted letters of the petitioner giving compensation to Ahmed in 1959. Moreover, more technicalities cannot be allowed to defeat the orders which have been passed by Tribunals of competent jurisdiction.

This Court does not sit as a Court of appeal when dealing with writ petitions and it has been held by the Supreme Court in P L D 1974 S C 139 and P L D 1981 S C 246 that High Court in use of its writ jurisdiction is concerned only with the question whether tribunal had acted within its jurisdiction or not and that mere fact that decision of a tribunal is incorrect does not render the decision as without lawful authority. It had been also observed that a tribunal which acts within jurisdiction is competent to decide a matter rightly or wrongly.

14. Consequently I do not find the respondent No. 1 having acted in the two matters in any wrong ‑ manner and, therefore, these two petitions arc dismissed.

A. A.

Petitions dismissed.

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