1. DECISION This appeal is directed against an order, dated 15-6-1983 passed by the Sind Labour Court No. VII at Sukkur.
2. The facts and circumstances are that one Ghulam Mustafa the respondent was appointed as a Ticket Collector, Grade I on 7-11-1968. He passed the prescribed course from Walton School, Lahore.
2. Then, by virtue of seniority he was promoted as Ticket Collector, Grade II on 13-6-1981 and he was posteddat Rohri Station. On 16-4-1982, he was served with a notice, dated 13-4-1982 under which he was reverted from Ticket Collector, Grade II to Grade I on the allegation of unsatisfactory work.
3. No charge-sheet or show-cause notice was given to him before passing the above order. He was permitted to file an appeal to appellant No.1 within one month against the order of his reversion but the order of reversion was implemented immediately and he was apared from Rohri on 17-4-1982 for Padidan as Ticket Collector, Grade I. The appeal was filed. Then review application was also filed to the Appellant No.3 but no reply was received by the respondent. Therefore, he filed the grievance petition.
3. On the other hand, the appellants stated that the respondent was not promoted on the basis of seniority as claimed by him but he was put to officiate as Ticket Collector in Grade II. The performance of the respondent as Ticket Collector, Grade II at Rohri was not satisfactory. The respondent was informed about the decision of the appellate authority on 17-5-1982. Moreover, no grievance notice was given to the Railway authorities. His reversion to the substantive post was not a punishment which is clear from page 744 of Chapter V of the Personal Manual. The application was time-barred.
4. The appellants in support of their contention have filed affidavit of one Ata Muhammad, Exh.4.
4. The affidavit of Ghulam Mustafa, the respondent is Exh.3. The Advocates of the parties were heard.
5. The Labour Court framed two Issues: - (i)Whether the applicant has given grievance notice to the respondents as required under section 25-A,I.R.O., 1969?
6. (ii)Whether the order of reversion of the applicant from T.C.R. Grade 11 to T.C.R. Grade I is illegal?
7. As regards the grievance notice, Ghulam Mustafa the respondent has filed copy of grievance notice, dated 1-6-1982 Exh. 1.G. He has also produced the acknowledgement Exhs.l-F to F-3. These documents bear the correct address of the appellants and they bear the seals of the post office.
8. They bear the stamp of the office of the Divisional Superintendent, Pakistan Railway, Sukkur and in view of this, the Labour Court decided that grievance notice was served. I feel that he is correct.
6. Regarding the issue No.2, the reversion of the respondent, Ghulam Mustafa was on the basis that his performance was not satisfactory. Following is the order passed by the appellants: - "Your performance is far from being satisfactory and penalty earning is very poor as compared with that of your colleagues. You have not been able even to maintain the minimum target of Rs.5, fixed by the Headquarters Office.
9. It is concluded that you cannot work satisfactorily at the post of T. C. R. Grade II and are considered unfit for this post. You are, therefore, reverted forthwith as T. C. R. Grade I. You can appeal to DS/Sukkur against these orders."
7. The contents of the order Exh. 1-A carry the stigma and the respondent was reverted on account of misconduct and unsatisfactory work and less penalty earnings which amounts to punishment.
10. The appellants have not claimed that they had held any departmental enquiry in case of the respondent, Ghulam Mustafa before passing the impugned order of his reversion. It is an admitted position that the respondent was promoted as Ticket Collector Grade II and worked until he was reverted, vide order, dated 13-4-1982. The contention of the appellants that he was promoted as officiating Ticket Collector is not borne out from the order Exh. 1-A. The order is clear that he was reverted due to misconduct and unsatisfactory work. There is an authority on this point, reported in PLD 1983 SC 108. It is as follows: --- "The conclusion that irresistibly follows from these facts is that the reversion of the respondent to Grade 19 on 1-1-1978 was due to the fact that ever since August, 1977 he was considered to be guilty of misconduct, which belief continued to be entertained at least until April, 1978, when he was issued the formal charge-sheet. His reversion in between this period and his being 'replaced' to his substantive post (on 1-1-1978) was not, therefore, simply an accident of service but this was ordered as a measure of punishment and displeasure. In these circumstances, the view of the Service Tribunal that the reversion of the respondent to Grade 19 was not justified, therefore, appears to be just and equitable."
8. The above authority is clear on this point. Respondent, Ghulam Mustafa was promoted on 14-6- 1981 and he worked there till he was9B reverted, vide order, dated 13-4-1982. No departmental enquiry was held or conducted. Under these circumstances, the reversion was illegal. This is the conclusion arrived at by the learned Sind Labour Court No.VII, Sukkur, and I would like to maintain it.
11. Hence, the appeal is dismissed.
12. A.E.Appeal dismissed 1987 PLC 85 [Ilnd Labour Court Sind] Present: Saiyid Saeed Ashhad, Presiding Officer ZIAUDDIN SIDDIQUI Versus NATIONAL MOTORS LIMITED, KARACHI Application No. 1 of 1984, decided on 30th January, 1986.
13. Industrial Relations Ordinance (XXIII of 1969)-- --Ss. 2(xxiv), 25-A & 51--Recovery of money spent by workman on medical treatment--Scheme unilaterally introduced by employer for medical treatment of employees, held, could be treated as Settlement in terms of S.2(xxiv)--Money spent on medical treatment outside the scheme would not be due and payable under any settlement--Application under S. 51 of Ordinance for recovery of such money was not maintainable---Workman claiming money spent in excess of admissible and payable under Medical Treatment Scheme of employer--Claim being not in respect of right guaranteed or secured under law award or settlement, application therefor was not maintainable under S. 25-A.
14. S.P. Lodhi, Representative for Applicant.
15. Syed Qamaruddin Hasan for Respondent.
16. This petition under section 51 of the Industrial Relations Ordinance, 1969 has been filed by the applicant against the respondent's establishment praying therein that the respondents be directed to pay the sum of Rs.6,319.35 spent by the applicant on his hospitalization for treatment to his injury.
17. The facts of the case as stated by the applicant in his above petition briefly are that he is a workman in the respondent's establishment and, o6 10-9-1982 he met with an accident which resulted in fracture of his left radius. He further submitted that he was taken to Baqai Hospital where after X-Ray his hand was plastered but the applicant continued to feel severe and unbearable pain and he got himself examined by the Medical Officer of the respondents who referred him to Karachi Seventh Day Adventist Hospital for treatment where he was examined by Orthopaedic Surgeon Dr. Zubair Mirza, who advised operation and the applicant was admitted in Seventh Day Hospital for operation, on 17-9-1982 but he was discharged, on 18-9-1982 because Dr. Zubair Mirza was unable to perform operation due to infection in his hands, and he was directed to come on 21-9-1982 and again on 23-9-1982 when the hospital authorities showed inability to perform the operation. He further submitted that on 24-9-1982 the applicant was in great agony due to severe pain in his hand and contacted Dr. Zubair Mirza, who advised him to get himself admitted immediately and, therefore, the applicant got himself admitted in Charania Hospital and Dr. Zubair Mirza performed his operation on 25-9-1982. He further submitted that he remained in Charania Hospital from 24-9-1982 to 7-10-1982 and during this period a total sum of Rs.11,184.14 was spent by the applicant which asked for reimbursement from the respondents in addition to Rs.1,710.20 on medicines and treatment after the operation but the respondents made only a part payment of Rs.4,864.79 and have refused to pay the balance amount of Rs.6,319.35. He further submitted that the respondents in the case of one Mr. Ahmed Patel of Sales Department, paid a sum of Rs.23,998 as charges of Charania Hospital and on the same basis the applicant was also entitled to receive the entire money spent by him on his treatment in Charania Hospital. Hence the above application.
18. The respondents in their reply statement objected to the maintainability of the application on the following grounds: -- (1)That the main application is not maintainable under the law and this Hon'ble Court has no jurisdiction to entertain it inasmuch as that the excess alleged claim of the alleged medical bills is not supported by any collectively bargained settlement or any award or decision of the arbitrator, Labour Court or the Tribunal.
19. (2)That this Hon'ble Court has no jurisdiction under section 51 of the I.R.O.. 1969 to compute any amount under Standing Order 10-B of the Standing Orders Ordinance, 1968 as no such claim has ever been determined or adjudicated by any competent Court of law prior to this application.
20. (3)That the applicant has got no right guaranteed or secured under any settlement or award to invoke the jurisdiction of this Hon'ble Court for his unauthorized claim.
21. (4)That the applicant has not come to this Hon'ble Court with clean hands and his application is liable to be dismissed by this Hon'ble Court with costs.
22. On facts they admitted the employment of the applicant in their establishment and of having met with an accident on 10-9-1982. They further submitted that they had on their panel ten very reputed and well established Hospitals and clinics for treatment hospitalization of their employees and the respondents in this behalf printed a pamphlet titled as "Medical Scheme for Employees" and their dependents wherein the names of the above hospitals and clinics have been mentioned alongwith the terms and conditions for treatment /hospitalization and it has also been specifically mentioned that the respondents would not bear expenses of any employee who obtained treatment /hospitalization on a non-penal hospital. They further submitted that the Seventh Day Adventist Hospital vide its letters, dated 23-9-1982 addressed to the Chief Medical Officer of the respondents informed that no Orthopaedic Surgeon was available in the Hospital and the applicant may be referred to any other hospital but this letter was withheld by the applicant and was not given to the Company's Chief Medical Officer, who would have arranged/ recommended the applicant for proper treatment/hospitalization in any other penal hospital instead of getting himself admitted in a non-penal Hospital in a semi-Private Ward whereas he was entitled to treatment in a general ward. They further submitted that the bill of Rs.11,184.14 submitted by the applicant during his hospitalization/ treatment in Charania Hospital were far in excess of the approved rates of panel hospital and could not be entertained by them and on the recommendation of Chief Medical Officer a sum of Rs.4,864.79 arrived at according to rates of penal hospital was paid to the applicant. They further submitted that the respondents as a matter of practice had always discouraged treatment of their employees in any non-penal hospital and whenever they went to non-panel hospital they paid/reimbursed the medical expenses only according to the panel rates and mentioned the names of twenty-one employees who had obtained treatment in non-panel hospital and had submitted higher claims but were paid less amount as made out according to the rates of panel hospital. As regards the case of Mr. Patel, they submitted that his case was of a different nature as he had suffered from a very severe injury to his spinal cord and his removal from Charania Hospital in that condition was not possible and, therefore, his admission in Charania Hospital was regularised and when the condition of Mr. Patel improved, he was immediately shifted to Ziauddin Hospital. They submitted that the applicant had no right or entitlement to claim the sum of Rs.6,319.35 and prayed that the application under section 51 of the I.R.O. Be dismissed.
23. The applicant examined himself in support of his case and filed his affidavit-in-evidence wherein the contents of his application under section 51, I.R.O. Were reproduced. He was duly cross- examined by the learned Advocate for the respondents, and during the course of his cross- examination he produced the Medical Scheme for the employees and their dependents introduced by the respondents as Exh.
3. On behalf of the respondents, Harold A. Meik. Senior Manager, Industrial Relations filed his affidavit-in-evidence and he was duly cross-examined by the learned representative for the applicant. The parties did not adduce any other evidence.
24. Written arguments were filed on behalf of both the parties. I have gone through the written arguments and also heard the oral arguments of the learned representative and the Advocate for the parties. I have also gone through the evidence on record.
25. The respondents very vehemently objected to the maintainability of the application under section 51 of the I.R.O. On the ground that under section 51 of the I. R. O., a workman can approach the Labour Court for recovery of money due from an employer under a settlement, or under an award or decision of the Arbitrator, Labour Court or Tribunal. The learned Advocate for the respondents submitted that admittedly there was no award or decision of the Arbitrator, Labour Court or Tribunal under which money sought to be recovered by the A applicant was due and payable and the question to be examined in the case was whether the Medical Scheme introduced unilaterally by the respondents for the treatment of its employees and their dependents' could be deemed to be a settlement and submitted that in view of the definition of terms 'settlement' in section 2(xxiv) of the Industrial Relations Ordinance, 1969, the said Scheme could by no stretch of imagination be deemed to be a settlement. Section 2(xxiv) of the Industrial Relations Ordinance defines settlement as under: - "(xxiv) 'Settlement' means a settlement arrived in the course of conciliation proceeding, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceeding, where such agreement is in writing, has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the Provincial Government, the conciliator and such other person as may be prescribed;"
26. From the above definition it is clear that an agreement or contract will come within the definition of settlement only if it is arrived at in the course of conciliation proceedings or between the employer and his workman otherwise in the course of any conciliation proceedings provided that such agreement or contract is in writing and has been signed by the parties thereto and a copy thereof has been sent to the Provincial Government, the Conciliator or such other person as may be prescribed. From perusal of the Medical Scheme (Exh. 3-A) it can neither be deemed to be an agreement arrived at between the employer and the C.B.A. Union during the conciliation proceedings nor can it be deemed to be agreement or contract between the respondents and their workmen as it is neither signed by the respondents nor the workmen and also is B not in the form of an agreement or contract. It is a unilaterally scheme introduced by the respondents as their own behest for providing medical facilities to their employees and their dependents.
27. It was argued on behalf of the applicant that if the application under section 51 of the I.R.O. Was not found to be legally maintainable then the same could be treated as an application and section 25-A of the I.R.O. However, the learned Advocate for the respondents submitted that under section 25-A, 1.11.0% a workman can approach the Labour Court for redress in respect of violation of any rights guaranteed or secured to him by or under any law or award or settlement from the time being enforced and that the claim of Rs.6,319.35 made by the applicant was not in respect of any right guaranteed or secured to the applicant as above and, therefore, even an application under section 25-A, I.R.O. Would not be maintainable. The arguments advanced by the learned Advocate for the respondents merits consideration: Under section 25-A, I.R.O. a workman has been given the right to approach D the Labour Court for redress of his grievance in respect of any right guaranteed or secured to him under any law, settlement or award for the time being enforced. The applicant has not been able to show that the prayer made by him in claiming the amount of Rs.6,319.35 is on the basis of any right guaranteed to him under any law or an award' or settlement for the time being enforced.
28. Since the application under section 51, I.R.O. Has been found to be not legally maintainable; I do not consider it necessary to discuss the factual aspect of the case.
29. Accordingly, the application under section 51 of the Industrial Relations Ordinance, 1969 stands dismissed.