DECISION This is an appeal filed by the appellant against an impugned order, dated 5-5-1985, passed by the Sind Labour Court No.II, Karachi, who had dismissed the grievance petition under section 25-A, I. R.
O. 1969.
2. Brief facts of the case are that the appellant was a permanent workman of the respondent establishment and was also holding various offices in the C. B. A. Union since 1968. It was claimed by the appellant that his active participation in the Trade Union activities was resented by the respondent establishment and they had been taking various steps to harass him and the other office-bearers of the C.B.A. Union. Further, that he fell ill and his illness was diagnosed as depression by Dr. Haroon Ahmed, Assistant Professor. Psychiatia, Jinnah Post-- Graduate Medical Centre, Karachi, and he remained on medical leave from 6-6-1981 to 22-9-1981 and that when he joined his duty due to constant and continuous work and pressurization, he again fell ill on 23-5-1982 and could not perform his duties till 31-10-1982 and then, on 1-11-1982, he joined the duties. But, due to same reasons, he again fell ill and remained on leave with effect from 13-2-1983 till 13-6-1983 and as he did not fully recover from the illness, he again availed annual leave with effect from 14-6-1983 to 25-7-1983 and after expiry of it when he reported for duty, he was not allowed to do so and was asked to produce Fitness Certificate for resuming the duty. However, the appellant was allowed to join the duties with effect from 9-7-1983 and it was claimed by him that till 22-9-1983 he attended the duties regularly, when he received a letter of retirement, on medical ground, from his services, hence, it was alleged to be mala fide, illegal and as a measure of victimization, and that the retirement amounted to dismissal during the pendency of an Industrial Dispute.
3. The respondent establishment resisted the petition and denied all the allegations levelled by the appellant. They had admitted that the appellant was a permanent workman and had held various offices in the C. B. A. Union. However, they submitted that the appellant due to his serious illness had attended his duties, only on 182 days out of 297 working days in the year 1981, on 127 days out of 297 working days in the year 1982 and only on 61 days out of 220 working days with effect from 1-1- 1983 to 22-9-1983 but, they had extended all cooperation and facility in the treatment during this period and every latitude and indulgence was shown to him besides the facts that they took all possible steps in assuring his complete recovery and did not assign and work whenever he used to resume his duties after prolong illness as he was kept busy with newspapers and other reading material and this type of gesture of the respondent establishment was appreciated by the appellant himself. They further submitted that was appreciated by the appellant himself. They further submitted that the maximum entitlement of his sick leave on full pay was about to exhaust and the appellant was advised to apply for 30 days sick leave and for 69 days annual leave. The respondent establishment had denied the allegation of the appellant that he was not allowed to join his duties, but the fact was that he was directed to produce fitness certificate from the Chief Medical Officer. Further, the case of the respondent establishment was that, even after resuming duty on 26-7-1983 till 22-9-1983, the appellant did not remain perfectly fit and continued to take medicines for his ailment of depression and also suffered an acute attack of depression on 15-9- 1983, when he was removed to factory Medical Centre where drip had to be administered to him and subsequently he was referred to the Chief Medical Officer, who after examining him 21-9-1983, had declared him, medically unfit for further services in the respondent's establishment.
It was further submitted by the respondent establishment that as the appellant became totally medically unfit and there was no hope to join service so as to be in a position to resume his normal work, therefore, the benefits under the sickness Industrial and Injury Benefits Scheme could not be granted to him, hence his termination of services be way of retirement, solely on medics: ground, was valid, proper and in accordance with the provisions of Law, therefore, he could not maintain his petition before the Labour Court which was liable to be dismissed.
4. Both the parties filed affidavits-in-evidence and they were duly cross-examined. Thereafter, the learned Labour Court had dismissed the grievance petition of the appellant, hence, this appeal.
5. I have heard Mr. Ali Amjad, the learned Advocate for the appellant and Mr. Abdul Hafeez, the learned counsel on behalf of the respondent establishment and have also perused the record and proceedings of the case. It is an admitted position by the appellant himself that due to his serious illness and on the recommendations of a Doctor, namely, Dr. Haroon Ahmed, he was unable to perform his duties for huge number of days, i.e. For 444 days, right from 9-6-1981 till 22-9-1983 and that during this long period, from 9-6-1981 till 22-9-1983 and that during this long period, the respondent establishment had shown all cooperation and had provided various facilities and concessions. It is again and admitted position that due to his serious illness and long absence from the duty, the appellant's efficiency and capability to work had dismissed resulting in diminishing his utility and usefulness to the employer, as had been declared by the Chief Medical Officer of the respondent establishment.
It was argued by Mr. Ali Amjad, the learned Advocate for the appellant that the respondent establishment had itself reffered the appellant to Dr. S. Haroon Ahmed, Assistant Professor, Jinnah Post--Graduate Medical Centre, Karachi, and he was the appropriate person to comment on the medical fitness or unfitness of the appellant as he was a specialist in the disease of the appellant and that Dr. Haroon Ahmed had declared the appellant fit to resume his duties, vide certificate, dated 3-8-1983, and if there was any doubt about the medical fitness of the appellant and his capacity to carry out the duties to be performed by him then he was ought to have been referred to Dr. Haroon for his further export opinion and that the Chief Medical Officer of the company had no authority to examined him and to issue permanent medical unfitness. I see no force in these submission of Mr. Ali Amjad. Admittedly it is on record that this Dr. S. Haroon Ahmed had declared the appellant fit for duties in 1981, but in 1982 and again in 1983, instead of declaring him fit to resume duty, by Dr. S. Haroon Ahmed, the appellant had suffered from the same disease and, in- capabilities on three occasions therefore, it is clear that that the opinion of Dr. Haroon Ahmed was not last word and the more fact that the appellant was under treatment of Dr. Haroon Ahmed did not debar the employer from getting him medically examined by their Chief Medical Officer with a view to ascertain the correct opinion. The evidence of the Chief Medical Officer, namely, Dr. Yousuf Ahmad is on record and he had mentioned in detail the reasons of arriving at the conclusion that the appellant would not be able to recover from his disease and would not be useful for the establishment. The appellant would not be useful for the establishment. The appellant had failed to shake the evidence in his cross-examination. There is no specific and direct evidence on record bar the appellant that there was any hostility, grudge or enmity disliking, between him and the Chief Medical Officer.
I, therefore, hold that in view of the above factual position, the appellant was correctly retired from service as the respondent establishment could not be compelled to leave the job vacant for an indefinite period and to wait for the complete and total cure and recovery of the appellant from his disease. In this respect, I am fortified with a number of authorities reported in 1981 PLC at page 660, 1984 PLC at page 145, 1981 PLC at page 187 and at 589; and 1982 PLC at page 166 and hold that these are very well relevant and applicable to the present case. As the appellant was totally medically unfit to work and was not useful for his employer and that he had miserably failed to establish, either any enmity with the Chief Medical Officer or to prove any mala fide or victimization on account of his trade union activities, therefore, the learned Labour Court has rightly held his retirement from the service as valid and bona fied without any bias or prejudice.
6. In view of the above factual and legal position of the case, the learned Labour Court is also very correct in holding that in view of the evidence on record, the utility and capability to work of the appellant had deminished and he was no longer required by the respondent establishment, hence, his retirement from service was lawful and valid.
7. For the reasons stated by me above, I see no reasons to interfere with the impugned order and would maintain the same.
Accordingly, this appeal is dismissed.
M. Y. H. /938/Lb. S