Find a Lawyer

(a) Words and phrases‑‑

‑‑‑'Disability'‑‑Meanings.

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

‑‑‑S.O. 10‑B(1)‑‑Disability‑‑Failing health‑‑Word 'disability' as used in S.O. 10‑B(1) of Ordinance VI of 1968, held, would mean incapacity to act or move‑‑Failing health was a continuous process, which by itself could not constitute disability which must be established independently by positive evidence.

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

‑‑‑S.O. 10‑B‑‑Group insurance‑‑Claim‑‑Worker failing to show that he suffered from disability‑‑Letter written by employer to worker to the effect that he had extreme failing health, regarded by Commissioner, Workmen's Compensation as an admission on part of employer and Commissioner allowed claim of worker although said letter nowhere suggested that worker was suffering from any disability‑‑Conclusion reached by Commissioner, held, was not proper as failing health might cause disability but two expressions were not synonymous‑‑Order of Commissioner allowing claim was declared to be without lawful authority.

A. Hafeez for Petitioner.

S.A. Channa, for Respondent No.2.

Date of hearing: 26th November, 1986.

This petition is directed against the order passed by the Commissioner for Workmen's Compensation, dated 28‑9‑1984, directing the petitioner to pay a sum of Rs.15,000 to the respondent No.2 on account of his Group Insurance Claim.

2. The facts, briefly stated, are that the respondent No.2 was employed with Hotel Metropole Limited, the petitioner in this case, as a workman. The respondent No.2 was informed by the petitioner by letter, dated 16‑2‑1982, that the State Life Insurance Corporation of Pakistan had declined to provide coverage to him under the Group Insurance Policy taken out by the petitioner as the respondent had become overage, having attained more than 60 years of age. Thereafter, the respondent No.2 was informed by the petitioner vide its letter, dated 27‑9‑1982, that he had been retired from service with effect from 1‑10‑1982. The first paragraph of the letter reads as under:‑

"Management has observed from your record of attendance that you have extreme failing health. Your past certificates from Doctors indicate that you are not fit to undertake your required job."

After receiving such letter, the respondent vide letter, dated 2‑10‑1982, also expressed his own desire to retire from the petitioner's service and further requested that his legitimate dues might be paid to him. On 12‑10‑1982 the respondent received an amount of Rs.19,624.60 from the petitioner on account of his dues and in full and final settlement of his account and executed a receipt in this respect. However, the respondent thereafter served a grievance notice, dated 9‑3‑1983, on the petitioner making a claim for Group Insurance. This notice was replied by the petitioner on 12‑3‑1983 and the claim of the petitioner was contested. The respondent then filed an application before the Commissioner for Workmen's Compensation, the first respondent in this case, claiming Rs.15,000 as due to him on account of the group insurance. The respondent claimed that since he had been retired from service on account of his extreme failing health, his claim was covered by the group insurance. The petitioner once again resisted the respondent's claim by raising a legal objection that retirement on account of failing health did not fall within the purview of Standing Order 10‑B as embodied in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as "the Ordinance") and as such his claim before the respondent No.1 was not maintainable. However, the respondent No.1 after recording the evidence of the parties, came to the conclusion that the claim was covered by the provisions of Standing Order 10‑B as according to him retirement on account of failing health amounted to permanent total disability and consequently he allowed the application of the respondent by the aforesaid order.

3. I have heard Mr. A. Hafiz, learned counsel for the petitioner and Mr. S.A. Channa, learned counsel for the respondent No.2. None appeared on behalf of the respondent No.1.

4. The sole contention of Mr. A. Hafiz has been that the respondent's failing health on account of which he had been retired from service does not fall within the purview of the word "disability" which occurs in Standing Order 10‑B of the aforesaid Ordinance Standing Order 10‑B provides as under:‑‑

"10‑B. Compulsory Group Insurance‑‑(l) 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 Employees' Social Security Ordinance, 1965 (W.P Ordinance No. X of 1965).

(2) The employer shall in all cases be responsible for the payment of the amount of premia and for all administrative arrangement whether carried out by himself or through an insurance company.

(3) The amount for which each workman shall be insured shall not be less than the amount of compensation specified in Schedule IV to the Workmen's Compensation Act, 1923 (VIII of 1923).

(4) Where the employer fails to have a permanent 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 (VII of 1923)."

5. A perusal of clause (1) of Standing Order 10‑B indicates that the employer is required under the Standing Order to get all the permanent workmen employed by him insured against (1) natural death, (2) disability, (3) death and (4) injury. The last two eventualities must arise out of the contingencies not covered by the Workmen's Compensation Act or the Provincial Employees Social Security Ordinance. The word "disability" has not been defined either in the Ordinance of the Employees Social Security Ordinance reference, may, therefore, be made to its dictionary meaning. According to Black's Law Dictionary, fourth Edition, the word "disability" means "the want of legal capability to perform an act or "a crippled condition". After classification of "disability" into different categories, "physical disability" has been defined by the same Dictionary as "a disability or incapacity caused by physical defect or infirmity, or bodily imperfection or mental weakness or alienation as distinguished from civil disability, which relates to the civil status or condition of the person, and is imposed by the law. Absence of competent physical, intellectual, or moral powers; impairment of earning capacity; loss of physical function that reduces efficiency; inability to work." Ballentine's Law Dictionary defines the word disability as a deprivation of ability; a state of being disabled; want of competent power, strength or physical ability; weakness; incapacity; impotence; loss of earning power; loss of a limb or member; under Workmen's Compensation statutes, impairment of physical efficiency, even though earning power has not been lost. As used in a policy of accident insurance, the bare term "disability" means disability from performing the occupation which the insured was following at the time of the accident, and not some vocation which he might be able to follow after the accident. For the purposes of Social Security Act, inability by reason of medically determinable physical or mental impairment, to engage in substantial and gainful activity, commensurate with his age, educational attainments, training, experience, and mental and physical' capacities. Want of legal capacity, such as infancy, insanity, and loss of rights consequent to the conviction in a crime. "According to Chamber's Twentieth Century Dictionary, "disability" means "want o power; want of legal qualification; a disqualification; handicap, asp. physical." The same dictionary also defines "disable" when used as a verb as "to deprive of power: to weaken: to cripple, incapacitate: to disqualify: to depreciate, disparage, undervalue".

6. Reference to these meanings shows that in the present context the term "disability" would mean incapacity to act or move. Failing health is a continuous process but the same by itself cannot constitute disability which must be established independently by positive evidence. In the present case, the respondent No.2 admittedly, had failed too adduce independent evidence to establish before the Commissioner, Workmen's Compensation that he suffered from any disability. However, the Commissioner regarded the letter written by the petitioner as admission on his part and allowed the claim of the respondent, although the letter nowhere suggests that the respondent was suffering from any disability. Mr: Channa, however, argued that since disability contemplated by Standing Order 10‑B could even be natural disability, therefore, failing health should fall within its ambit. This argument does not appear to be tenable as although failing health may cause disability but the two expressions are not synonymous. The conclusion reached by the learned Commissioner is, therefore, not proper.

7. For the aforesaid reasons, the impugned order is held to be without lawful authority and of no legal effect. For such reasons this petition was allowed by a short order, dated 26‑11‑1986. There will be no order as to costs in view of the points raised.

M.Y.H H‑11/ K.

Petition accepted

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.