This is an appeal emerging from the decision dated 29-1-1990 recorded by learned Presiding Officer, Punjab Labour Court No, 9, Multan whereby accepting the grievance petition of the respondent she has been directed to be reinstated in service with back benefits.
2. The respondent was an Aid-Nurse and on account of absence for more than 10 days she was charge-sheeted and after holding enquiry dismissed from service. The only point which has been argued before me is that section 1(3)(f) of the Industrial Relations Ordinance, 1969 is attracted to this case, thus the provisions of Industrial Relations Ordinance, 1969 are not applicable. The contention of the respondent is that the appellant hospital is running on commercial basis and thus Industrial Relations Ordinance, 1969 applies. The respondent contented herself with her statement and documents Exhs. P-1 to P-15. On the other hand four witnesses namely Agness C.
Hislop RW-1, Dr. Heather Car Michael RW-2, 7afar-ul-Islam R.W. 3 and Younis Lal Din RW-4 were examined on behalf of the appellant. Besides this oral evidence reliance was placed on behalf of the appellant upon documents Exhs. R-1 to R-59. The learned lower Court has been impressed by the material brought on the record to show that the free treatment is not given and reduced charges are recovered. According to the learned Lower Court since free relief is not given to the patients, it is sufficient and that the fact that the income is not distributed among the members of the society is immaterial. Here the learned lower Court has erred. In order to decide whether an establishment is running on commercial basis it is necessary to see not only the income but the expenditure and the use of profit if any are also to be kept under consideration. The learned lower Court has not said that the income is distributed among the members of the society. Exh. A P.14 shows that the profit is added to the assets which means that it is not distributed. The profit is described as "excess of income over expenditures". In the statement for the period ending on 31st of December, 1987 an amount of Rs,2,86,282.69 which was in excess of income over expenditures was added to the assets. The mere fact that profits are derived is not sufficient but it is to be seen whether the profit is used. Where profit is distributed among the members of the body, of course, there can be justification to hold that the establishment is running on profit and commercial basis but where the profit is again put back in the income or assets and is expended on the establishment for the treatment and welfare of infirm persons, it will be difficult to say that the body is running on commercial basis. Exhs. R.13 and R. 14 show that the income and expenditure for the year ending on 31-12-1988 was equal meaning thereby that there was no profit. The respondent has even not named such members, sharers or Directors among whom as stated by her profit is distributed. This further shows that there is none to get share in the profit. The learned lower Court says that the appellant hospital is not being run on charitable basis but clause (f) of section 1 does not suggest that only that establishment is exempted from the application of Industrial Relations Ordinance which is a charitable institution. Clause (f) of section 1(3) reads as under:- "by an establishment maintained for the treatment or care of sick, infirm, destitute as mentally unfit persons."
' It is thus clear that the provision of law is not that only that establishment is exempted from the application of Industrial Relations Ordinance, 1969 which is running on charitable basis. Learned counsel for the respondent has tried to argue that maternity cases are admitted in the hospital, therefore, it cannot be said that the hospital has been maintained for the treatment of sick and infirm persons. According to the learned counsel for the respondent no question of sickness or infirmity arises in maternity cases. On the face of it the argument is fallacious. The element of infirmity and sickness is involved even in maternity cases. At the time of delivery the mother feels immense pains and it is very strange that learned counsel for the respondent is ignorant of it. There is a danger to the life to woman giving birth to a child. Even the life of the child is not out of danger, if proper treatment is not given and care is not taken. The overwhelming oral and documentary evidence discussed above, completely rebuts the oral statement made by the respondent P-14. As discussed above rather the evidence supports the case of the appellant. I, therefore, hold that the appellant hospital is covered by the definition of section 1(3)(f). of the Industrial Relations Ordinance, 1969 and the Ordinance is not applicable to it, with the result that the learned lower Court had no jurisdiction.
3. As a result of the discussions made above, the appeal is accepted and setting aside the impugned decision the grievance petition of the respondent is dismissed for lack of jurisdiction.