KARACHI, Jan 5: In 2002, 31 workers in 3,500 registered factories suffered fatal accidents, and 39 suffered accidents (including eight major accidents).

However, these figures from the Labour Directorate, Karachi, do not reflect the situation on the ground, admits a labour official. “With more than 300,000 workers employed here, the accident rate is much higher.”

There are several reasons for the distortion in figures. First, the registered factories of 10 workers and above, employ several contract workers whose names do not appear in the register. If any of them suffers a fatal accident (or otherwise), it is hushed up. The body is sent to the area of his residence, and a small amount is paid in compensation to his relatives, much lower than the mandatory Rs200,000 as accorded by the Workman’s Compensation Act.

Secondly, the employers do not inform the Labour Directorate of accidents and fatalities suffered in their factory or establishment on J-1 form within 24 hours of the accident as prescribed in the Factories Rules. “We learn of such incidents through newspaper reports,” said a labour official. Unfortunately, workers in such establishments do not approach the labour directorate to inform them of such accidents either because of lack of awareness or for fear of losing their jobs. This essential information is not even imparted by labour unions “because most are hand in glove with the employers. Those more honest to workers’ rights, are not permitted to come forward.”

Only five inspectors conduct inquiries related to accidents against the ILO recommendation of 20. This being so, there is no monitoring of factories and establishments and the practices in many clearly violate safety standards. When the labour directorate learns of an accident within a factory, the duty of the officials is “to inquire into the cause of the accident and suggest remedies to the employer”. This may require two to three visits. When the employer fails to respond to a report, a show-cause notice is issued to him and a letter is dispatched to the commissioner to collect the compensation dues and to disburse the amount among the legal heirs. One cause for the complacency of the employer in observing safety measures is that seldom is any action taken against the employer who flouts the statutory rules and enactments. In the worst accident this year when seven workers were burnt to death due to leakage of steam in Star Dyers, Korangi, the judicial magistrate hearing the case only issued a warning to the employer. In 2001, the worst accident occurred in Steel Mills when nine workers were burnt to death by molten lead, which was “polluted” and caused an overflow of the metal. Two fatal accidents occurred subsequently. No action was taken by the labour department against the employer.

The law with regard to the employer violating any section of the labour laws is very lax and the maximum fine that can be levied is Rs500. In 2001 only one employer was fined Rs25 for negligence. “If a high fine is imposed upon employers who violate safety standards, this will invariably make the employers more cautious and responsible. In the United States, for instance, the employer has to pay a fine of 5,000 to 70,000 dollars if he disregards the health and safety law,” observed a labour official.

According to Justice G.H. Malik, during his five years on the bench, he never dealt with a case of disability from an industrial accident “which rarely come to the high court”. The only cases he has decided are under the Fatal Accident Act.

He explains the paucity of such cases to the workers’ weakness and their lack of awareness. Workers also fear in approaching the courts to get their rights because of the long legal process. “Such a case can take 10 to 15 years,” he said.

Under the Fatal Accident Act, the compensation awarded by the court to the heirs — sons and daughters and the widow — depends upon the extent of damages they have suffered and can prove accordingly. The formula applied is: i) what is the age of the victim and his life expectancy; ii) his earning capacity;

iii) prospects of his progress and his personal expenses which is deducted from his income.

Justice Malik is of the opinion that this formula tends to limit the compensation paid to the heirs of the worker who dies in an accident. “I feel a more liberal formula is required to grant greater damages. In Malaysia, for instance, the courts granted a young girl, an accident victim half a million, because the accident would spoil her chances of marriage. This is the spirit we need. It should be the judge’s discretion to grant damages according to the circumstances of the persons concerned and not go strictly by the formula.”

For himself, Justice Malik sought to give as liberal a compensation as possible under the circumstances. “I took life expectancy at 70 years.”

To encourage more cases in court, Justice Malik believes that lawyers should be permitted to take up such cases on contingency basis. “They would not charge the clients anything until they actually recover the damages. In this way, the client who has to pay only negligible court fee, would not be overburdened.”

Justice Malik believes such cases should be put on a fast track because those affected are mostly the poor. However, there are too few cases to justify the setting up of special courts. What is required, he stressed, is to educate the workers. What could help is to have the related laws in Urdu and make it obligatory upon the employers to put it up in the factory at a spot where the workers can easily read this.

Advocate, Nasir Maqsood, who specializes in compensation claims, observes there is no reported judgment whereby the employer has been required to pay compensation to the injured employee since the last 50 years. “This shows how thin the claim is for compensation to the injured”.

One factor that prevents workers who have suffered injuries from lodging in a case is the excessive court fees that can be as much as Rs 15,000. Similar fees were also imposed upon the plaint who filed a case under the Fatal Accidents Act, 1855. Only when the government waived this aside after efforts by his late father, advocate Mohammad Maqsood that litigation started in this area. With regard to court fees in personal injury claims, Maqsood says that if this cannot be waived, then it can be recovered from the compensation paid.

Another factor which limits litigation is the time limit of one year from the date of the incident, for filing a case — unless the legal heirs are minors. “It can become difficult for a widow who has to observe Iddat, and who takes time to learn the ropes, to file a suit within this period. I feel the time limit should be increased to two years, as in India and England.”

He makes several recommendations to pave the way for compensation to the aggrieved. “Insurance should be made mandatory in units having a certain number of workers. The employers may be asked to contribute a certain amount as premium at the time of registration and on an annual basis, with subsidies from the government. All claims should be processed directly by the employees and the management of the insurance company.” Maqsood also favours paying the beneficiaries reasonable compensation as an interim arrangement to be deducted from the amount decided by the court. This principle known as “no fault liability” has been introduced in India.

Most employers fail to inform the labour directorate of an accident within 24 hours as required to do so under Rule no 80. Maqsood is of the view that circulars should be sent to the employers of different establishments informing them of this rule.

Advocate Ashraf Husain Rizvi draws attention to the weakness of workers. “In Karachi, there is far greater awareness than among workers in the interior of the province and in outlying areas. One mine owner admitted to me that if somebody dies in his mine in Punjab, the heirs consider themselves fortunate if they receive Rs5,000 in compensation, whereas under the Workman’s Compensation Act, they are entitled to two lakh rupees.”

He also pointed out that those entitled to compensation under the Workman’s Compensation Act are workers earning Rs3,000 and below. “This ceiling should be raised.”

He stressed that workers on contract were particularly weak, being deprived of rights and not recognized by the law. “In India, such workers are protected by a special law and get equal facilities as registered workers.”