1995 PLP 167 (PLC)

S.P. Lodhi, Representative for Respondent. Date of hearing: 22nd December, 1994. This is an appeal by the Sindh Club against the Order of the Fifth Sindh Labour Court, Karachi, directing reinstatement of the respondent- Waiter without back benefits. 2. The respondent was appointed as a Waiter in the Sindh Club on 1‑9‑1991. He was then sent for Medical Examination, in accordance with the terms and conditions of the services of the Club, to the Clinic of Dr. Major M. Akram Khokhar. He was X‑rayed and it was found that he was under weight and suffering from kock's infection on right lung and therefore unfit for the employment. His services were, therefore, terminated on 25‑11‑1991, on account, of the Medical Report received from Dr. Khokhar, under Standing Order 12(3) by an Order in writing stating the reasons for the action taken. The respondent‑Waiter' was, meanwhile, treated by Dr. Khokhar and he certified on 10‑12‑1991 that opacity which was present in the lung had dis appeared with treatment and there was no acute pathalogy seen. The respondent also got himself X‑rayed at other X‑Rays Clinics and they did not detect any such disease and certified that he was not suffering from Pulmonary Tuberculosis. One such certificate was from City Chest Clinic, Karachi and the other from Red‑Crescent X‑Ray Centre. The Karachi Laboratory Diagnostic Centre also certified that his condition was normal and no significant abnormality was seen. He then gave grievance notice and on getting no reply applied under section 25‑A of the I.R.O., 1969, before the Labour Court. 3. The Labour Court directed his reinstatement without back benefits. Against this order Sindh Club has filed this appeal and obtained a stay of the order of reinstatement. 4. The only point argued by Mr. Muhammad Sabir, counsel on behalf of the appellants, is that the services of the respondent were terminated within the first three months of probation as a person with such ailment could not be retained as a waiter in a prestigious establishment like Sindh Club, that termination was under S.O. 12(3) of the Standing Orders Ordinance by an order in writing stating the reasons. The learned counsel has shown that the Club was not supposed to wait indefinitely expecting a cure. He has cited 1993 PLC 134, a decision of Labour Appellate Tribunal in the case of Muhammad Iqbal v. Chairman, P.I.D.C., Karachi in which the facts were more or less the similar. The services of an ambulance driver were terminated on account of some heart problem. He was found physically unfit for responsible job of ambulance driver. The lives of patients could not be put in jeopardy in his insecure hands. There was nothing to show that any body was nursing any grudge or bias against him. He was allowed all benefits and legal dues. The case of employee being of termination simpliciter the finding of the Labour Court was maintained and the appeal of the driver was dismissed. 5. In the present case the respondent was only a probationer and the termination was within the first three months of probation. The Club could not be expected to get him treated for pulmonary tuberculosis and reinstate him on his recovery. 6. The only point urged by Mr. S.P. Lodhi, Representative for the respondent‑Waiter, is that Dr. Khokhar was choice of the Club and that the respondent was not actively a patient of Tuberculosis when he applied for service as Waiter; as such the respondent should have been taken back and reinstated when he was found fit. 7. A probationer is a person who is taken in service subject to the condition that he would be confirmed only if, during the period of probation, he is medically examined and found fit as per terms and conditions of service. The order of the Club terminating the services of the respondent when he was found medically unfit was bona fide and proper under the circumstances and he was given order in writing with reasons and paid his legal dues. It has not been alleged that the Secretary of the Club had any grudge against the Waiter nor had the services of the respondent been terminated mala fide. 8. The order of the Labour Court is, therefore, set aside and the appeal is allowed. H.B.T./2389/Lb.S Appeal allowed.