DECISION This is an appeal against the award of the Labour Court whereby some demands had been accepted.
2. Some of the employees of the appellant hospital formed a Union and it was duly registered. The Union raised an industrial dispute by serving a demand notice followed by strike notice. The appellant did not accept the demands and, therefore, conciliation proceedings were resumed I but there was no settlement. Consequently the Union made an application to the Labour Court for the adjudication of the demands.
3. The appellant resisted the demands. It was pleaded that the Union did not have one-third of the workers as its members and it was not certified to be 'Collective Bargaining Agent' as required by section 22(1) of the I. R. O. The Union, therefore, had no locus standi to raise the dispute, lt was further pleaded that the dispute was barred by virtue of the principles of 'laches' and (res judicata' as the dispute was raised earlier and it was dismissed. It was also pleaded that the hospital was not an1 'industry' and, therefore, I. R. O. was not applicable.
On merits it was pleaded that the Union had failed to make out the case for the grant of demands.
4. Evidence was tendered by both the parties. The Labour Court on the assessment of the evidence accepted Demands Nos. 1 (a), 1 (b) partly and 8 while the remaining demands were rejected. 5.
6. It was next urged on behalf of the appellant that the Union could not be treated to be the 'Collective Bargaining Agent' for want of certificate from the Registrar of Trade Unions as required by section 22 of the I. R. O. This contention is equally; devoid of force as the amendment requiring the necessity of certificate was effected long after the dispute was raised. The amendment came into force from 17-10-1974 whereas the dispute was raised in June, 1974. Before I deal with the demands on merits I would like to dispose of the legal objections which have been raised on behalf of the appellant. It was urged that there were 390 workmen employed in the hospital whereas the Union consisted of 123 of them and, therefore, their number being less than one-third the Union was not legally constituted. On the other hand it was pointed out on behalf of the respondent that there were 360 workmen and out of them 121 were the members of the respondent and, therefore, no exception could be taken. I have considered the material on record in the light of the arguments advanced before me and I support the view taken by the Labour Court that the Union was properly constituted as there were 121 members out of 360 workmen employed by the appellant. The list of workmen produced by the appellant could not be relied upon as admittedly it includes several officers and not only workmen as defined by I. R. O. Admittedly one name had been shown twice and there are five trainees. It has, however, been urged on behalf of the appellant that the trainees were apprentices and they fall within the definition of the term 'workmen'. Indeed apprentices can be treated as 'workmen' but it is essential that the employers should engage them for hire or reward but there is nothing on record to show that any remuneration is paid to the trainees.
Consequently they cannot be regarded as 'workmen'. Again I find that about 25 Doctors have been included in the list. Out of them some are Heads of their Departments and some are Part-time working simultaneously in other hospitals. It is pertinent to note that cleverly the list itself does not indicate that any of them is a Doctor. This had been suppressed but it was brought out in the cross-examination. It is, therefore, not unlikely to presume that there may be various other persons, shown in the list, who may not be workmen. No reliance can be placed upon such a list. I have, therefore, no reason to reject the contention raised on behalf of the respondent that there are 360 workmen out of them 121 are members of the Union. Thus the requirement of law is complied with and the Union is properly constituted as regards its competency to raise the industrial dispute. 7.
The other contention which was raised was that the 'Hospital* was not 'Industry' within the meaning of I. R. O. and, therefore, the Ordinance was not applicable. In this connection it was stated that the 'hospital* was a charitable institution and was run on 'No profit' basis. In my view the contention is without any force. Admittedly treatment is not being given free of charge. Even the employees are being charged 20 % of the medicine when they ate treated in the hospital. I fail to understand how this hospital can be treated to be charitable institution. The plea which has been taken before me should be deemed to have been settled by a decision of the Industrial Court, West Pakistan, Karachi reported in 1967 PLC 808 in which the very hospital and its employees were involved. It was observed by the learned Chairman of the Industrial Court that it was not a 'charitable institution* and it was also clear from the evidence which was led that the hospital carried on an undertaking within the meaning of clause (h) of section 2 of the Ordinance. In my view this operates as res judicata and the plea cannot be re-agitated. In this connection I would also like to refer to the decision of the Supreme Court of India in the case of State of Bombay v.
Hospital Mazdoor Saba (1) in which it was held in un-mistakable terms that hospital was an 'industry*. Elaborate reasons were given and I need not repeat them. I may, however, state that it was observed that it was the character of the activity which decided as to whether the activity attracted the provision of section 2 and it was immaterial whether it was conducted for profit or not. It was a case of Government Hospital whereas the appellant hospital is a Private Institution and there is all the more reason to apply the principle laid down in the aforesaid decision. Yet there is another case of the same Court; Re: State of Bombay v. Hospital Mazdoor Saba (2) which was followed in the case of Lalit Hari Ayurvedic College Pharmacy Pilibhit v. Workers* Union (3). Hospital is an undertaking organized or arranged in a manner in which trade or business is generally organised or arranged in order to render material service to the community with the help of the employees.
8. On the other hand the learned Representative for the appellant referred to four authorities reported in 1970 PLC 630, 1975 PLC 223, 1966 PLC 28 and 1975 PLC 354 but these authorities are inapplicable as the former two pertain to Clubs while the other two are in respect of Educational Institutions.
9. The other plea which was raised was that the Union had earlier raised the dispute involving the same demands and it was dismissed and, therefore, it operated as res judicata. This contention is also without force for the simple reason that the previous dispute was not disposed of on merits but it was dismissed on a technical ground on account of the delay which was caused in approaching the Labour Court after the demand notice and strike notice were given. In order to attract the application of the principle of res judicata it is essential that there must be a final adjudication on the merits of the case. Admittedly there was no final adjudication on merits. This is a settled position of law and need not be dilated upon.
10. It was also urged that the present dispute suffered from 'laches' as one month was allowed to expire before an application was made to the Labour Court after the issuance of the strike notice. I am unable to uphold, that this period can be treated to defeat the dispute raised by the Union. (1) AIR 1960 SC 610 (2) (1960) 17 F J R 423 (3) AIR 1960 SC 1261 1975 Seventh Day Advbntist Hospital v. Workers'
Union 871 (Inamullah Khan, Appellate Tribunal)
7. Turning to the merits of the demands I will first take up the demand relating to medical treatment. This was allowed by the Labour Court. The allegations made by the Union is that prior to 1970 the employees were given free medical treatment and this facility was withdrawn in 1970. This was denied on behalf of the management. It is plain enough that the denial stands contradicted by the Employees Hand Books issued in 1963 and 1970. Referring to Employees Hand Book of 1963, the clause relating to medical assistance reads as under : "(1) Hospital employees are entitled to free medical treatment except for maternity care and except for a small diet charge. Medical treatment should be requested through the employee's department head. (2) Assistance is granted to employees on dental and optical expenses according to a fixed policy, and must not be accumulated for more than one calendar year. (3) Employees are not eligible for assistance on optical and dental expenses until they have served the hospital for at least six months." Whereas under the same heading in the Employees Hand Book of 1970 the relevant provision is as under : "(1) Confirmed hospital employees are entitled to free medical treatment except for maternity care, small medication and diet charge.
Medical treatment should be requested through the employee's department head. (2) Assistance is granted to employees on dental and optical expenses according to a fixed policy, and must not be accumulated for more than one calendar year. Prior permission for such must be obtained from the House Committee. (3) The entire Medical Policy for employees is too long and detailed to incorporate in this Hand Book. Specific information on any aspect may be obtained from the Business Officer."
8. By comparison it would be found that the words "small medication" were added in the Employees Hand Book of 1970. It is on the basis of this provision that 20% of the charges for medicines are being recovered from the employees. Thus it is plain enough that the facility which was available prior to the issuance of the Employees Hand Book in 1970 was withdrawn. Consequently the employees have genuine grievance and, therefore, the facility was rightly restored by the Labour Court. lt was, however, urged on behalf of the appellant that the employees were claiming the facility retrospectively and since the cause of action arose in 1970 the dispute could not be raised in 1972 by application of the principle of res judicata by reason of the dismissal of the previous dispute. There is also no force in this contention as there is nothing in the demand to indicate that it is being claimed retrospectively but it shall be allowed prospectively i.e. to say from the date of the decision of the Labour Court. So far as the principle of res judicata is concerned this has already been disposed of and need not be re-agitated.
9. The other demand is with regard to the encashment of the Annual Leave which has not been availed of. I am unable to uphold the view taken by the Labour Court. Annual Leave is allowed for rest in order to increase the efficiency. This, of course, does not mean that the encashment shall not be permitted in case the leave is refused by the Management.
10. The third demand relates to the House Rent Allowance granted by the Labour Court. In this connection it is pertinent to note that in the hospital there are three categories of employees. One category is of those persons who are allowed free accommodation. The second category is accommodated within the premises of the hospital or the building owned by the management and are charged rent at the rate of 10 % of their salary. The third category of employees have not been provided any such facility. Thus it is clear that the management is observing a policy of discrimination. Stress had been laid oa behalf of the appellant that the employees who had been provided accommodation were required to perform urgent duties and they were charged rent. But I must say that even then they are in an advantageous position as it is a matter of common knowledge that the rent of houses has appreciated considerably and the ratio of burden on the third category is unquestionably greater than upon the second category. Consequently 1 have no hesitation in holding that the demand of the workers is most reasonable and was rightly allowed by the Labour Court.
11. In the result the appeal is dismissed with the modification regarding the Annual Leave.