DECISION This is an application under section 25-A of Industrial Relations Ordinance, 1969, filed by Mr. Muhammad Taj, against Messrs General Tyre & Rubber Co. For setting aside the termination order and for re-instatement, with back benefits.
2. Applicant claims, that, he has been in service of the respondent, since 17-7-1979. Applicant met with an accident in April, 1982, and received injuries, where he was treated by the Doctors. Applicant was advised rest, till he was allowed to work at his job, in May, 1983. Applicant reported for duty, but he was advised to get himself examined from the certified Surgeon, periodically.
3. Applicant claims, that, Dr. Aftab Qureshi, the certifying Surgeon, firstly declared him unfit for the job of operator, but, when unfitness was disputed, he also recommended, that, the applicant be retained in service, for period of 3 months. Applicant used to appear before the Surgeon, at one stage, when the applicant had already been declared 'fit', by Dr. Prof. Ali Muhammad Ansari. The same Surgeon, not only recommended extension for 3 months, but also gave opinion, that, his muscle power of left hand, might recover, after about 3 months, thereafter, the applicant performed his usual duties, without any deficiency, and was doing overtime, yet there was no complaint. Surprisingly, the respondent stopped his entry inside the factory, from 20-2-1984, without assigning any reason and, therefore, he has come to challenge this termination, on the ground, that, this action of the respondent was motivated to crush the trade union activities, because he is the office-bearer of the C.B.A.
4. Respondent has filed written statement, and contended, that, the applicant is not office-bearer of the union, nor he has concern with industrial dispute. They have admitted this position, that, the applicant met with an accident outside the factory premises on 21-4-1982, and remained absent from duty, for about one year, upto 30th April, 1983. Applicant was referred to Dr. Aftab Qureshi, who found him not fit for the job of operator, as a result of contracture, of his left hand. On 26-4-1983, applicant appeared before the Surgeon, for his medical check-up, and the management asked him to work on trial basis, for period of 12 weeks, and then to appear before the Surgeon on 26th July, 1983, he was again examined by the Surgeon Dr. Aftab Qureshi, who gave his opinion, that, he would examine him, again, to re-assess his muscle power, Consequently, his trial period was extended Applicant failed to report to this certifying Surgeon Dr. Aftab, medical examination, and was issued a letter, dated 8-1-1984, but also refused to accept; as he was not physically found fit to perform his duties, his services were terminated. They have denied .The victimization, of the applicant, as an office-bearer of the unit.
5. Following are the points for determination: -
(i) Whether Mr. Muhammad Taj was fit as operator?
(ii) Whether his services were terminated legally?
(iii) Whether the action of the respondent was mala fide, to victimize the applicant, because he was the office-bearer of the union.
REASONS:
6. Mr. Muhammad Tai, the person aggrieved, has challenged his termination, that, his termination from the employment was due to victimization, of the lawful activities of the union, as he, being the office-bearer, which post he resigned.
7. Respondent has contended, that, his termination is due to the reason of his disability, to perform the nature of job, he was assigned as an operator, due to the accident, he had faced, by which he lest the capacity of muscle power, in the hand, by the nature of disability known, in the medical opinion, as the contracture of his left hand.
8. With this contention summarised, it is contended, that, the applicant met with an accident outside the factory premises, on 24-4-1982 He remained absent from duty for one year, upto 30th April, 1983. He was referred to Dr. Aftab Qureshi, the certifying Surgeon, for media check-up, who gave certificate, dated 20-3-1983, that, Mr. Muhammqd Taj is not fit for duty on the job of operator, as a result of contracture of left hand. On 26-4-1983, it is stated, that, he appeared before Mr. Aftab who again gave the opinion on 27-4-1983, that, the management' to give him further chance of trial, for a period of 3 months, and, to produce him again. Applicant was directed to report for work as Tyke Pressing Operator, with this understanding, if he was not found fit on trial basis, he will be referred again, to the Surgeon, for certifying his fitness. This letter was acknowledged by hand- delivery, and was issued, dated 28-4-1983. On 26th July, applicant was again examined by Dr. Aftab, who gave the opinion, that, he will re-examine him after assessment of muscle power. On 26th July, 1983, his trial peri4, was extended for 3 months, from 28th July, 1983. Whereafter, applicant was not found fit further, to continue with the duty, due to contract of his left hand, and was directed to resubmit himself, for further assessment, but he did not visit the Surgeon. He was issued letter dated 8th January, 1983, Annexure 5, but he refused to accept the letter. The letter was sent by post, but that was also refused, Annexe 6. Finally, his services were terminated on 19-1-1984.
9. I have heard Mr. Farooq Ghani and Mr. Rasheed Ahmed Chowdhry, and examined the evidence on record of this Court.
10. Mr. Rasheed Ahmed has contended, that, Mr. Muhammad Taj was physically fit to perform the job. There was no need further, to refer him to the Surgeon. He referred also, to the certificate of Dr. Ali Muhammad Ansari, on record, to support, Mr. Taj's physical fitness.
11. However, this is not denied, that, Mr. Muhammad Taj met with an accident, where his hand went in sugarcane machine. It is also not denied, that, Mr. Aftab found him unfit, in his initial stage of assessm ent. This is also not denied, that, Mr. Taj did not visit the Surgeon third time, after trial basis, for assessm ent of his muscle power, when it was the management desire, which he had to obey, as the employee, in the job, where there was relationship, of master and servant.
12. Dr. Aftab Ahmed, in his evidence, has referred, which I quote: - "I see my certificate. Mr. Taj was not fit for the post of Operator, by the result of contracture of his left hand. He again came to my clinic. I recommended, that, he be kept on trial basis, and again, to be re-assessed after period of 12 weeks. He again came, and I found, that, he was able to do his duty, but, there was inadequate muscle power, and there was possibility of recovery after 3 months. I do not remember, whether he again came on 26-7-1983."
13. This was the opinion of experienced Surgeon. Mr. Taj admittedly did not visit the Surgeon, when he desired to re-assess him for investigation of his muscle power.
14. The question now, be raised, whether the management was justified to terminate his services, or, what the applicant has insisted, that, he was fit to work as an operator, doing even overtime. Mr. Taj, during his evidence, has stated, that, he was fit to work, but the. Management insisted, to get him re-assessed, by the Surgeon.
13. So far as Mr. Taj stated, that, the management had no right, to refer him, when he was fit on duty, it is the management's privilege, who could be in better position, to assess his capacity, because, the production and the quality of work was the privilege of the management, to judge. Secondly, the experienced Surgeon, like Mr. Aftab Ahmed, himself has examined his capability, that, he has lost his contracture muscle power, but gave him trial, for improvement and recovery.
16. Mr. Rasheed Ahmed Chowdhry has referred to the record of production, which is produced by Mr. Lakhani, the respondent's witness, whose evidence I refer: - "I see overtime slips, for September, October, December, 1982. I see the cards, to show, that, he worked for 24 hours, in addition to his usual duty. It is correct, that, he was required, to be present for 32 hours, at a time. There is no written report against the applicant, till December, 1983. It is correct, that, from March, 1983, he was certified to be retained in job. It is correct, that, there was no adverse report against him, between 28-10-1983 to 19-1-1984. We have no production sheets of 1983."
17. Then the last question, which the witnesses has replied, that, it is not true, that, he has given more production, from May, 1983, to 19-1-1984.
18. With this history-sheet of work, which Mr. Muhammad Taj was doing, the respondent has also failed to produce the production sheets of 1983, for the Court, to assess the production, that, it went below the normal standard, expected of the management. The question still is not the end, because the Court is of the opinion, that, the capacity, or the assessment of the muscle power, to give the quality of work, and to have the capacity to work, or to stand stamina of physical work, could only be assessed by the Surgeon, and the management equally enjoyed the privilege, to send every employee, whether fit or unfit, to have the satisfaction, for the quality of production, of his industry. There is nothing in the labour law, to restrict the power of the management. All that the employees could claim, if, being aggrieved against termination, to come in the Court, and challenge the termination as improper.
19. If Mr. Muhammad Taj has stated, that, he did not receive the letter of 8th January, 1983, which though was sent on the address, and there was word refusal", the Court is still inclined to take this view, that, if Mr. Aftab Qureshi directed the management, to submit him for medical check-up, Mr. Muhammad Taj had to appear for medical opinion, whether his continuation in the job is in the interest of industrial working, whether he can do the work and what is the standard of his fitness, and there is no possibility of his left hand, to lose the muscle strength, being on hazardous job, of tyre pressing operator, but, Mr. Muhammad Taj left no alternative, for the management, who had to take this step of termination.
20. In the Court's opinion, there again remains defect, that, if, by this act of termination, the Court upholds the order, the requirements of justice are not met. If the Court allows Mr. Muhammad Taj, without examining by the Surgeon, as he had directed, there remains still the defect, that, his muscle capability is not re-judged, in the interest of justice.
21. So, in the interest of justice, to both the sides, the Court is of the view, that, the management will give him one more chance, that, he will submit himself to the Surgeon, Mr. Aftab Qureshi, to determine his final capacity, to work, irrespective, he can do his job. The question is not the doing of duty, but the determination of his physical capacity, whether he can stand the work of tyre pressing operator. He will appear before Mr. Aftab Qureshi, in the month of February, after seeking interview.
22. Regarding victimization, there is nothing in the evidence, to show, either directly or from the circumstances, that, the management has victimized him. The simple question is, that he has been referred, due to the accidental defect, which is evident on the record. So, there is no point, in proceedings of sentiments, that, the management was inclined to crush the union activities. In the Court's opinion, the crushing of activities can only be assessed, when the C.B.A. Has come forward, but , it is an individual opinion of a worker, which is not supported from the record.
23. In the result, the impugned order of termination passed ex parte, is set aside, with this direction, that, Mr. Muhammad Taj will appear before the Surgeon and get himself re-examined, as to the capacity of his muscle power. Indeed, he had produced the certificate of Mr. Ali Muhammad Ansari, who is also great Surgeon, like Mr. Aftab. So, Mr. Aftab Qureshi is in better position, as the Surgeon, to assess his capability, in the context of medical opinion.
24. Application allowed to that extent.
A. E.