1. The applicant presented the grievance petition on 11-121986 under Section 25-A of I.R.O., 1969, for his reinstatement in service against the respondent Industries with back benefits.
2. According to case of applicant he was employed as a Pump Operator from 13-1981 in the Respondent Industry and unfortunately he was injured sustaining injury in his right elbow in the accident in the Industry while he was on duty on 29-6-1985. He was taken to Private Hospital for treatment and ultimately referred to Dispensary of Social Security Institution on 23-11-1985 where the applicant was getting his treatment.
3. The Management of Respondent in order to get rid of applicant managed to take applicant to various Surgeons in care of Labour Officer and obtained 50% permanent disability certificate of applicant although the applicant's injury had already cured to great extent.
4. Later on the Manager Administration and Co-ordination on the above false pretext treated the applicant cent per cent disabled and terminated the services of the applicant with effect from 24- 9-1986 under letter. The applicant by that time was in care and under treatment of Dispensary of Social Security Institution.
5. According to applicant's averment the injury is totally cured and he is no more disabled person and the action of his termination from employment by Respondent is unlawful, unwarranted by law, unjustified, illegal and with mala fide intention. It is in flagrant violation of the provisions of Section 72 of Provincial Employees Social Security Ordinance, 1965. The further case of applicant is that he has been victimized by Respondent for the reason that he was active member working as 'Propaganda Secretary' in another union organised by workers of Respondent establishment. It is further alleged by applicant that he had sent grievance notice dated 27-10-1986 Annexure 'A' to Respondent and had received unsatisfactory reply dated 6-11-1986 Annexure 'B' hence his above grievance petition.
6. The Respondent in his reply to the above grievance petition has pleaded that after the accident of applicant in the Industry on 29-6-1985 at 4 A.M. he was referred to Abbasi Shaheed Hospital for necessary medical treatment as the applicant was not covered by Social Security Scheme due to exceeding of his wages limit from Rs, 1,000 per month. However the applicant re-entered in Social Security Scheme with effect from 27-7-1985 when the law was amended raising limit of wages from 1,000 to 1500 as provided in S.2(8) of Provincial Employee's Social Secuarity Ordinance, 1965.
7. According to Respondent the applicant after remaining a few days in Abbasi Saheed Hospital came and insisted Respondent to refer him to Private Hospital named Medico Health Centre Orangi Town and on his own constant insistence he was referred to take treatment there. He was admitted there on 13-7-1985 and his affected elbow was operated upon by Surgeon Imtiaz and expenses about Rs, 11,000 were borne by Respondent. The applicant during his admission in the above hospital on 29-7-1985 left the hospital against medical advice giving it in writing that Hospital authorities would not be responsible for anything and went away to Punjab and thus he was declared as LAMA by Hospital authorities. The applicant also did not inform to the Respondent about his absence. He also was paid full pay from 29-6-1985 to 12-7-1985 without producing any medical certificate. On his return from Punjab he again remained under treatment of Surgeon Imtiaz of above said private Hospital and was advised rest till 27-9-1985. The Respondent company granted him special medical leave and paid his full salary including Medical bills produced by him from time to time. The applicant was later on recommended light duty by doctor while he resumed duty on 28-91985 and it was advised in medical certificate to applicant not to do any heavy job and to sit in workshop. The applicant then remained absent from 29-9-1985 to 7-10-1985 without any information or medical certificate. Again on 12-10-1985 he appeared with medical certificate recommending further rest from 8-10-1985. Thus the applicant was granted special medical leave with pay. On 2-11-1985 the applicant again produced medical certificate for rest issued by above said doctor till 31-10-1985 advising the applicant rest for one week more. The Respondent accepted the same and granted special medical leave till 7-11-1985 with full pay. The applicant instead of resuming duty on 8-11-1985, resumed his duty on 10-111985 with medical certificate advising him not to touch any heavy job. The Respondent had no light work for applicant and as such the applicant kept on complaining constantly that due to above injury he had been permanently incapacitated and he could not preform his normal duties in which the use of his right hand was necessary. The Respondent however allowed the applicant to sit without work doing nothing on duty and he was paid full wages. The applicant continued complaining about his being unfit and permanently disabled due' to above accident and produced medical certificates of various authorities. The Respondent has produced as many as 10 medical certificates Annexures A to J.
8. Ultimately applicant made application on 22-6-1986 to Labour Minister Government of Sindh requesting for Medical Board which was forwarded to Respondent under letter dated 16-7-1986 Annexures K-1 and K-2. The Respondent company approached Medical Advisor of Social Security Institution to have the applicant examined by Medical Board vide letter Annexure I which was ultimately confirmed on 9-9-1986 vide Annexure 'M'.
9. The applicant in the meantime forwarded 50% disability Form A--Medical certificate dated 28-7- 1986 issued by Lt.-Col Said Ahmed alongwith letter dated 29-7-1986 Annexures N-1 and N-2. He also sent another Medical certificate dated 31-8-1986 issued by Dr. Aftab Ahmed Qureshi alongwith application of applicant dated 4-9-1986 certifying 50% permanent incapacity Annexures 0-1 and 0-2.
10. Ultimately on refusal by Social Security Institution to arrange medical Board the Respondent arranged it through Medical Superintendent Sind Service Hospital Karachi vide letter dated 12-8- 1986 Annexure 'P'.
11. The applicant appeared before Medical Board which confirmed 50% permanent incapacity of applicant vide Annexure 'R'.
12. According to Respondent looking to 50% permanent incapacity of applicant and his being unfit to perform his normal duty even after 15 months after his accident left no choice for Respondent but to terminate the services of applicant vide its letter dated 24-9-1986 Annexure S1-3. Thus according to Respondent the termination of services of applicant was legal, proper and justified step taken by Respondent.
13. The applicant in support of his grievance petition filed affidavit-in-evidence of his own and also examined a witness, Hafiz Khalid Social Security Officer. The Respondent examined Mohammad Akhtar in support of his case. Dr.Sanaullah Qureshi was examined as Court witness in the above case.
14. The applicant filed his written arguments while the Advocate for Respondent Mr. S.M. Yakoob argued his case at length personally.
15. In the light of above evidence on record following would be points for determination:--
(1) Whether the applicant is permanently disabled at 50% due to his accident in the company of Respondent? If so, its effect.
(2) Whether the applicant has any legal right guaranteed or secured under any law, award or settlement?
(3) Whether the termination of services of applicant by Respondent is illegal and unjustified?
(4) What should the order be?
(5) My findings on above points are as under:-- POINT NO.1 In affirmative POINT NO.2 In affirmative POINT NO.3 In Negative POINT NO.4 As ordered below.
16. REASONS FOR MY FINDING ON POINT NO.1 So far as the above point No, 1 is concerned it remains mostly an admitted position. The above admitted position is not only supported by any oral evidence but it is supported by documentary evidence. From the perusal of evidence and documents produced by both the parties I find that above point of disability of applicant at 50% stands not only proved but is admitted position by the applicant. The applicant before termination of his services was himself crying and making applications to the various authorities to admit that he was incapacitated at 50% and was unfit to do heavy duty. The above stand of applicant can be proved from application No, 1 dated 29-7-1986 made by applicant to respondent, N-2 a certificate issued by Dr. Said Ahmed Lt.-Col. produced by applicant before Respondent alongwith application N-1. There is also a certificate issued by Dr. Aftab Ahmed Qureshi on 31-8-1986 certifying 50% disability of applicant. The last and final medical certificate is issued by Medical Board which was constituted on the application of applicant made to the Minister for Labour Government of Sindh Annexure K-2. The above Medical Board certified the applicant as fifty per cent partial disabled. He is certified to be unable to perform his normal duty with his right hand.
17. From the above medical certificates on record the 50% disability of applicant is established.
18. The applicant himself in pursuance of such certificates of his disability was claiming compensation from Respondent as is evident from his application Annexure N-1. This shows that the applicant himself was admitting to the extent A of 50% his disability for the purpose of knocking out money from Respondent. It is also admittedly on the record from cross of applicant that during duty period he was unable to do heavy job and he was thus unable to perform heavy duty. these circumstances the Respondent terminated the services of applicant with effect from 24-9-1986 i,e, after 15 month's after accident of applicant. Thus it shows that the applicant even after period of 15 months was unable to perform duties. The Respondent a Commercial Company could hardly tolerate the existence of applicant to be in his service and declared his termination of service order offering him to pay him one months notice pay and dues as per law. Thereafter when the applicant's services were terminated by B Respondent, he changed his attitude of his disability and started claiming himself to be fit to perform duty. In support of his above sudden change of attitude he managed to secure a fitness certificate from one Dr. Shafiq-ur-Rehman who on 29-9- 1987 i,e, after one year after termination of services of applicant issued such certificate in favour of applicant without giving further reference of X-rays report etc. The applicant in spite of above certificate, did not produce it in his evidence. He also did not examine the doctor in favour of his side.
19. Thus it all appears that this has been subsequent development of applicant just to defend his termination of services in Court. But since the point of disability to the extent of 50% is already established in an admitted position nothing could be done for applicant at such late stage of his change in his stand. I therefore do not find any force in the subsequent stand of applicant to believe him to be fit to perform duties of Respondent.
20. The further contention of applicant that he was made prey of termination of his services as a result of his being active member of subsequent union in which applicant claims to be Propaganda Secretary is not proved by him in evidence through any oral or documentary proof. The above contention is on the other hand not admitted by Respondent who claims that there was no such another union and the union CBA in the company of Respondent is working for last many years with harmony with administration and after every two years there has been agreements between existing C.B.A. Union and management. Thus the above stand of applicant stands not proved. The point No, 1 in view of above discussed reasons is answered accordingly in positive.
21. REASONS FOR MY FINDING ON POINT NO.2 So far as legal right guaranteed and secured of applicant is concerned it is not denied by Respondent even in his reply statement. The Respondent in the last para. of termination order of applicant has clearly mentioned that the applicant would be paid one month's notice pay and other dues as per law which may be collected by applicant. The Respondent has further added in above termination order that the claim of applicant to the extent of 50% permanent disablement would be dealt with separately in accordance with law.
22. Thus the above point stands admitted and as such it is held accordingly in affirmative.
23. REASONS FOR MY FINDING ON POINT NO.3 As regards point No, 3 the burden of proof was on applicant to prove as to how and under what circumstances the termination order of services of applicant was illegal and unjustified. The applicant led the evidence of Hafiz Khalid to that effect. The contention of applicant that at the time of termination of his services he was in care and under treatment of dispensary of the Social Security Institution and as such the termination of his services was illegal and unjustified as held in 1977 PLC 109 in case Mohammad Muniar Butt v. Crescent Jute Products Ltd. Jaranwala Appeal No, 33 of 1976 decided on 10-3-1976 where on page 110 at placct (h) S.72 of West Pakistan Employees Social Security Ordinance (X of 1965) is discussed and defined.
24. "S.72--Section bars employer to dismiss, discharge or otherwise punish employees during period of medical care of Social Security Institution-Medical certificate rejected on ground of its having been sent two days late-Management, held must have ordinarily accepted medical certificate as correct unless definitely proved to be bogus but on any account no punishment could be awarded to worker in view of statutory provisions contained in S.72".
25. To prove above contention the applicant examined Hafiz Khalid Farooq who in his Court evidence has deposed that applicant remained in the treatment as per last entry in the hook till 21-10-1986.
26. The witness in his cross has admitted that at page 3 is the last Form B of applicant which is dated 28-8-1986. The witness has further admitted that last entry in Medical Book of applicant maintained by Social Security Institution Ex. AW/1 is dated 2-10-1986 and it is in respect of Amna w/o Mohammad Ayoob applicant. From perusal of above book it appears that last entry in above medical record in respect of applicant is 28-8-1986. The subsequent entries as claimed by applicant appear to be of his family members and no entry is shown regarding applicant in the book as admittedly no form B2 is available in the book as admitted by witness. Thus the contention of applicant that he was under care and treatment of Social Security Institution does not stand proved. Thus the contention of applicant that he was under care and treatment of C Social Security Hospital is not established and as such contention bears no force.
27. In view of above reasons the point No, 3 is answered in negative accordingly.
28. REASONS FOR MY FINDING ON POINT NO.4 The above point is to be decided in view of my findings on aforesaid points and as points Nos. 1 an 2 which are vital points for decision of above grievance application have been decided against applicant and it has been held that the applicant is disabled 50% and unfit to do the job with his right hand and that his termination from service was not illegal and unjustified hence the above point would naturally go against applicant. I therefore in view of above reasons find no force in the above grievance petition of applicant and as such dismiss it. The applicant is at liberty to file application for compensation before proper Court for recovery of his compensation. He is also at liberty to collect his dues from Respondent as offered by Respondent in the termination order.