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Petitioner: SIND EMPLOYEES SOCIAL SECURITY INSTITUTION, KARACHI VS Respondent: MUHAMMAD JUDGMENT
Court Name: Sindh High Court Judge(s): S. A. Nusrat Title:SIND EMPLOYEES SOCIAL SECURITY INSTITUTION, KARACHI vs MUHAMMAD
JUDGMENT
Reported As: 1978 PLC 119 Result: Appeal allowed Judgment JUDGMENT ' The brief facts relevant for the consideration of this appeal are that the respondent No, 1 (hereinafter referred to as the respondent) was a permanent workman employed in the factory of the respondent No, 2 since about 19 years, and he was registered as a "secured person" within the meaning of subsection (25) of section 2 of the West Pakistan Employees' Social Security Ordinance, 1965 (hereinafter referred to as the said Ordinance). He was engaged in the work of loading and unloading of chemicals, pieces of glasses, powder for glasses, soda and stones. According to his own version, he suffered from Anthrax, which is an "occupational disease" mentioned in the Schedule to the Provincial Employees' Social Security (Occupational Diseases) Regulations, 1967, of which ailment he complained to have been suffering since 1974. The respondent No, 2 referred him to the appellant for treatment on 5-12-1974, when a certificate in Form W-1 was issued for incapacity to work by the appellant. Ho was operated upon on his cheek on 16-12-1976 for chronic inflamation of the left parotid gland. In spite of the said operation he got no relief and continued reporting for treatment to the physicians of the appellant. Dr. Usman Mamsa, Senior Medical Officer, Injury Treatment Centre of the appellant by his certificates dated 3rd May 1975, confirmed that the respondent had a swelling left cheek, for which he was given treatment and was admitted in K. V. Side Hospital on 14-12-1976. The certificate goes on to say that "after operation, he complained of loss of his sight, and was in hopeless state and could not see and had to be helped for everything". As the respondent became totally blind he applied for benefit on account of total disability to the appellant. He was granted Rs, 1,000 only by the appellant as "ex gratta payment." Against this order, the respondent filed an appeal under section 59 of the Ordinance before the
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Social Security Court claiming Rs, 16,000 as benefit on account of permanent disability. The Social Security Court recorded evidence of the parties and by order dated 23rd October 1976, directed the appellant to pay Rs, 16,000 to the respondent. This appeal has been filed challenging the said order and Mr. S. A. Sarwana, learned counsel for the appellant, raised twofold contentions. It is firstly contended that the Social Security Court erred in holding that loss of vision of the respondent on account of Glaucoma was a result of operation of left parotid gland which was scientifically incorrect and the judgment was against the provisions of the Ordinance. The other contention is that burden of proof for establishing claim lay upon the respondent, which he had failed to discharge. It may be mentioned that in the grounds of appeal there is implied presumption that the respondent lost his vision on account of Glaucoma and, therefore, in order to sustain any finding on this ground it would be necessary to examine whether or not there was any conclusive evidence on record proving loss of vision of the respondent on account of Glaucoma and also whether the respondent, according to the provisions of the Ordinance and the regulations framed thereunder, was called upon to discharge burden of proof, as commonly required in law for proving a claim and to what extent this rule is attracted in his case. 2. Mr. Abdus Samad, learned counsel for the respondent No, 1, sad Mr. M. H. Kazmi, Advocate for the respondent No, 2, raised a preliminary objection with regard to the very maintainability of this appeal on the ground that under section 64 of the Ordinance an appeal would be competent only if any substantial question of law is involved. Section 64 of the Ordinance reads as follows it- "64. Appeal.-(1) Save as expressly provided in this section, no appeal shall lie from an order of a Social Security Court. (2) An appeal shall lie to the High Court from an order of a Social Security Court if it involves a substantial question of law. (3) The period of limitation for an appeal under this section shall be thirty days. (4) The provisions of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), shall apply to appeals under this section." ' The learned counsel contended that an appeal under the above-mentioned section would be competent only when decision of Social Security Conti involves not merely any question of law, but a "substantial question of law." In support of his contention, Mr. Abdus Samad relied upon some decisions on the interpretation of the first proviso to section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the said Act), which contained similar provision. Section 30 of the Act with its first proviso reads as under :- "30.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely :- (a) an order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum ; (b) an order refusing to allow redemption of a half-monthly payment (c) an order providing for the distribution of compensation among the dependents of a deceased workman, or diallowing any claim of a per son alleging himself to be such dependent ; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12 ; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions t 'Provided that no appeal shall lie against any orders unless a "substantial question of law is involved" in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees." Looking to the provisions of the Ordinance, it is clear that its object is to introduce a scheme of social security for providing benefit to certain employees or their dependents in the event of certain calamities. The provision in section 64, therefore, limiting the scope of appeal before the
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High Court, is undoubtedly beneficial because the purpose of the Ordinance is to provide succour and relief to the suffering and disabled workmen who may be rendered incapacitated during the course of their employment and .The Legislature, therefore, deemed it necessary to secure expeditious and inexpensive relief for such destitute workmen. Accordingly, the words "substantial question of law," used in section 64, are to be given restricted interpretation, so as to advance the purpose lying behind the enactment. The law, otherwise, favours a finality in litigation and it is only upon fulfilment of the condition laid down in section 64 that a litigant would be entitled to approach the High Court by way of appeal. 4. Mr. Abdus Samad, learned counsel for the respondent No, 1, as mentioned above, only sought support from certain decisions on the interpretation of the first proviso to section 30 of the Act, as the provisions contained in the said proviso to section 30 of the Act and section 64 of the Ordinance are pari materia, in that, in both the sections the words used are "substantial question of law." He first referred to Abu Bakar Abdur Rehman & Co. v. Narayan stating that the said case was on all fours to the one under consideration. The facts of that case were that a workman was scraping the cylinder of the gas engine in the employer's factory when a particle of rust entered his eye which eventually caused complete loss of sight in that eye. The Commissioner's finding regarding the loss of workman's sight, in the circumstances, which was based on evidence, was held to be a finding of fact, which could not be challenged under section 30 of the Workmen's Compensation Act, 1923. He further referred to Paresh Chandra Ganguly v. Jawahir Press, Calcutta where it was held that whether a particular disease was contracted at a time when the person (workman in printing press concerned was employed under 'A' or 'B' or 'C' was a pure question of fact, which could not be agitated in an appeal before the High Court under the said Act. Another decision relied upon by the learned counsel is Cooling Equipment Co. Ltd. v. Mat. Zainab Bibi and another. It was a first appeal from a decision of the Commissioner under the Workmen's Compensation Act, which had first come before a learned Single Judge, but was referred by him to a Division Bench in view of the importance of certain points involved in the appeal. The Commissioner had found that the appellant-Company was liable to the extent of Rs, 1,200 against which the Company preferred appeal. The points urged in the appeal were-(1) that the Commissioner was wrong in finding that the petitioner was a widow of the deceased, (2) that the Commissioner was wrong in holding that the 'encased was a "workman" within the meaning of the Act, and (3) that the commissioner was wrong in holding that the accident by which the deceased met his death was one arising out of, and in the course of, his employment. As regards the finding that the petitioner was the widow of the deceased, it was held that on the clear finding of the Commissioner, the issue involved a pure question of fact. Another contention raised was that the provsio to section 30 of the Act did not bar the High Court from examining the finding of fact in an appeal which, otherwise, lies under section 30. The contention, in other words, was that once an appeal was admitted on a substantial question of law, the whole case was open to investigation by the High Court. This contention was repelled by the learned Division Bench on good authority and the rule laid down was that where a question of fact is wholly independent of any question of law, the High Court in appeal was bound by the finding of fact arrived at by the Commissioner. On the basis of this rule, the learned Bench held in that case that the question whether the petitioner elaimant was or was not a widow of the deceased was admittedly independent of any point of law involved in the appeal and therefore, under section 30 of the Act, the High Court was precluded from reconsideration of the Commissioner's finding on that issue. However, their Lordships Tekchand and Sale, JJ., held that the substantial point of law involved in the appeal was whether the petitioner was a "workman" to which the Workmen's Compensation Act applied and the judgment proceeded to examine the said issue. Further reliance was placed on Bhagwandas v. Pyarelal where it was held that a question of law can be said to be a substantial question of only1 2 3 4
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when there may be some doubt or difference of opinion. Mr. Abdus Samad argued that the instant case was not one of doubt or difference of opinion, and hence the appeal was incompetent. 4. There are decisions nearer home on the interpretation of section 30 of the Workmen's Compensation Act, 1923, which however, the learned counsel did not cite. In Aftab Flour & Allied Industries Ltd. v. Mst. Nasim Akhtar it was held that the question whether employment was casual and whether or not for employer's trade or business was a question of fact, and not of law. In Messrs Oodsan Ltd. v. Deva the question whether in face of evidence temporary disability was proved was held to be a question of fact, and the learned Court refused to interfere with the finding of the lower Court on the said issue. In Messrs Lever Brothers (Pak.) Ltd. v. Fazal Muhammad the Commissioner's determination regarding nature of or incident attaching to payment made to injured workman during the period of his convalescence was held to raise a "substantial question of law," and the appeal was held competent. In Messrs Datsun Service Station, Karachi v. Abdul Aziz it was held that the High Court cannot review finding of fact, unconnected with law, arrived at by Commissioner, and it was not open to an appellant in appeal under section 30 of the Act to agitate all questions of fact. 5. The question as to what is meant by substantial question of law in section 64 of the Ordinance has received my anxious consideration. While the decision on the issue is dependent upon facts of each case, some of the tests laid down by various Courts, as also noticed in some of the cases referred to above, are as follows. 6. In Raghuman Prasad Singh and others v. The Deputy Commissioner of Partobgarh and others, the Privy Council made the following observation in their judgment t- "Admittedly here the decision of the Court affirmed the decision of the Court immediately below ; therefore, the whole question turns upon whether there is a substantial question of law. There seems to have been some doubt, at any rate in the old Court of Oudh, to which this one succeeded, as to whether a substantial question of law meant a question of general importance. Their Lordships think it is quite clear, and indeed it was contended by Mr. De Gunther, that that is not the meaning but that the words 'substantial question of law' mean a substantial question of law as between the parties in the case involved. ' Mr. De Gruvther has really tried to show the Board that there is no substantial question of law by more or less taking up the merits of the case and showing that the decision is quite obviously right. Their Lordships do not think that they would be quite in safety to take that view in a case which certainly occupied the Court below for a very long time and on which there is a very elaborate judgment. They therefore think that upon the face of the matter there is, as between these parties, a substantial question of law." The former view taken by the High Courts in the sub-continent had been that simply because certain question of law was involved in a case, it would not mean that it was necessarily a substantial question of law. The preponderance of the view was that a substantial question of law must be of a general and public importance and this controversy was set at rest by the above judgment. According to the above view of the Privy Counsel, a question of law would be substantial even if the same is confined to a dispute between the parties and if the same substantially affects them. This judgment of the Privy Council prevailed with the Supreme Court of India in the case of Sir Chun!Lal v. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd.. This was an appeal by special leave against the judgment of the High Court of Bombay in an appeal from the judgment of a learned Single Judge of that Court. The appellants in their suit had claimed damages for about 26 laths of rupees, which was dismissed by the learned Single Judge and was liter affirmed in appeal by the High Court. Being aggrieved by the decision of the High Court, the appellants applied for a certificate under Article 133 (1) (a) of the Constitution. The judgment of the High Court in appeal was in affirmative of the judgment of the learned Single Judge dismissing the suit. It was,5 6 7 8 9 10
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therefore, necessary for the appellant to establish that a substantial question of law was involved in the appeal. It was contended on behalf of the appellant that the question raised concerned the interpretation to be placed on certain clauses of the managing agency agreement upon which their claim in the suit was founded, and that, as the interpretation placed by the appellate Court on those clauses was erroneous and thus deprived them of the claim to a substantial amount, the matter deserved to be certified by the High Court under Article 133 (1) (a) of the Constitution. The High Court refused to grant certificate on the interpretation of the words "substantial question of law" occurring in Article 133 (1) (h) of the Constitution, which is similar in terms as section 110, C. P. C. The Supreme Court was, therefore, moved under Article 136 of the Constitution for grant of certificate for special leave, which was granted. In the application for special leave, a specific contention was raised to the effect that the view taken by the High Court with regard to the application for certificates under Article 133 (1) (a) of the Constitution was wrong, that the appellant was entitled to appeal to the Supreme Court as a matter of right, and that while considering the appeal, this question should also be decided. It was further pointed out to their Lordships that the view taken by the Bombay High Court on the point, as to what is a substantial question of law ran contrary to the decision of the Privy Council in Raghunath Prasad Singh's case, and the decisions of some other High Courts in India and, therefore, it was desirable that the Supreme Court should pronounce upon the question in appeal and set the matter at rest. The Supreme Court, upon review of various cases on the point in issue, observed as under . "(6) We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 7. The tests for the determination as to what a substantial question of law in a given case would mean may be laid down as follows :- (1) That the question of fact should not be wholly independent of any question of law ; (2) There should become doubt or difference of opinion on a question of law ; (3) A question of law does not mean a question of general importance and means a substantial question of law as between the parties in the case involved ; and (4) Whether the question is of general public importance, and whether it directly and substantially affects the rights of the parties, and if so whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or is not free from difficulty or calls for discussion on alternative views. 8. Now coming to the facts of this appeal, the appeal was admitted, inter alia, for consideration of the contention "that respondent No, 1 suffered from Glaucoma, which is not covered by the West Pakistan Employees' Security Ordinance, 1965" and which was stated to be "neither an Occupational Disease nor an Employment Injury." The said contention is same, although differently worded, as noticed hereinabove according to the contention raised by Mr. S. A. Sarwana. The other contention is with regard to the burden of proof which, allegedly, the respondent failed to discharge in proving his entitlement for the claim under the Ordinance. In the light of the facts set out hereinabove, the appeal does raise substantial questions of law and the preliminary objection raised by the learned counsel for the respondents has, therefore, no force.
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9. The benefits available under the provisions of the Ordinance as contained in Chapter V, are provided in sections 35 to 39, which are sickness benefits, maternity benefits, death grant, medical care during sickness and and maternity, and injury benefits. The "employment injury" is defined under subsection (10) of section 2 of the Ordinance as follows t- " 'employment injury' means a personal injury to a secured person caused by an accident or by such occupational disease as may be specified in the regulations, arising out of and in the course of his employment ;" The term "Occupational Disease" has not been independently defined and the Ordinance but under Regulation 3 of the Provincial Employees' Social Security (Occupational Diseases) Regulations, 1967, framed in exercise of the power conferred by section 30 of the Ordinance it is laid down that "the occupational diseases which may cause an employment injury within the definition contained in section 2 (10) of the Ordinance, shall be the diseases in column (1) of the attached Schedule". Now in this case the question which falls for determination is whether the respondent No, 1 suffered any in the Ordinance read with the above an 'occupational disease' specified in the Schedule to the Regulation referred to above. The Provincial Employees' Social Security (Occupational Diseases Regulations, 1967, only prescribes three diseases under its Schedule, which are (1) Anthrax, (2) Twister's cramp, and (3) Byssinesis, and Glaucoma is not one of the diseases mentioned in the Schedule. But, as mentioned earlier in this judgment for the determination of this question a finding is necessary whether or not the respondent suffered from Glaucoma which fact must be established from the record in order to disentitle the respondent of his claim. The findings of the Social Security Court on the issue are vague. After reference to evidence, the learned Social Security Court held that although the respondent had been in continuous treatment in the hands of the doctors of the Institution, yet he was left untreated till he was diagnosed of Galucome. It has further been held that the respondent was not advised to undergo operation of Galucoma at the early stage and, therefore, the doctors of the Institution were responsible for total loss of the vision of the respondent, and that the said disease occurred exactly in the course of employment with the respondent No, 2. The Social Security Court, on these findings, awarded a sum of Rs, 16,000 to the respondent towards his claim. The learned counsel for the parties have taken me through entire evidence on record and there is no legal and satisfactory evidence in support of the finding of the learned Social Security Court that the respondent suffered from Glaucoma. According to the pleading of the respondent, he suffered from Anthrax since the year 1974, and he had complained of the same to the respondent No, 2, who in turn directed him for treatment to the appellant. He further pleaded that he also suffered from Glaucoma "as certified by the Eye-Specialist". 10. The evidence in this case consists of the deposition of the respondent himself, who in his statement stated that he was admitted in K. V. SITE Hospital in December 1974, and was operated upon his left cheek under the ear. He stated that he was discharged on 11-1-1975. He denied the suggestion that he complained of weakness of eye-sight after four or five months of the operation and volunteered to state that he complained of the same immediately after the operation. The respondent No, 2 examined one witness, Mr. M. Ghous Mohiuddin stated that the respondent was operated for left cheek swelling. He produced a certificate issued by the Social Security Institution in Form M-1 dated 542-1974, and a bunch of certificates Exhs. R, W. 2/B-I to 49 issued in Form M-2. He stated that no fitness certificate in Form M-3 was issued to the respondent. He produced photostat copy of a certificate dated 3rd May 1975 by Dr. Usman Mamsa, Senior Medical Officer of the Institution, Exh. R. W. 2/C, which was admitted in evidence in spite of objection on furnishing of explanation that the original had been handed over to the Institution at the time of the payment of Rs, 1,000 to the respondent. He produced photostat copy of another certificate dated 29-7-1975, Exh. R. W. 2/D issued by Dr. Ata-Rehman, Openthanlmio Surgeon, which too was admitted on the basis of similar explanation given by this witness. The appellants in their turn examined one Abdur
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Rashid, a Social Security Officer of the Institution. He stated that the appellant was operated upon his cheek and was first diagnosed for Segaceous. He was discharged on 11-1-1975. In May 1975, he complained of his eyesight and, therefore, was examined by the Senior Medical Officer of the appellant on 3-5-1975. He admitted that certificate Exit. R. W. 2/9 was borne on record (earlier obleeted to for admission by the learned counsel for the Institution). He produced copy of the comments furnished by the respondent suffered from inflammation of the left parotid gland. It was further stated that be was operated upon on 16-12-1975 and…
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