1989 (PLP)

1980 P L C 269 and 1984 P L C 1512 ref. Muhammad Humayoon for the Management. Ch. Rasheed Ahmad for the Workman. Date of hearing: 30th March, 1988. DECISION These are two cross appeals, both filed against an impugned order, dated 2‑12‑1987, passed by the Sind Labour Court No. TV at Karachi, who had allowed the grievance petition of the workman, Muhammad Taj, under section 25‑A, I.R.O. 1969, directing his reinstatemnt in service with 25% back benefits. Appeal No. KAR‑509/87 has been filed by Messrs General Tyre & Rubber Company of Pakistan Ltd., Karachi, against the reinstatemnt with 25% back benefits of the workman; while Appeal No. KAR‑500/87 has been filed by Muhammad Taj, the workman against the award of only 25% back benefits. As, both the two cross appeals are against a similar common impugned order, therefore. I would also decide them by this single Decision.

2. Briefly stated the facts of the case were that workman, Muhammad Taj claimed to be a permanent workman of the establishment of Messrs General Tyre & Rubber Co., since 17‑7‑1979 and that in the month of April, 1982, he had met with an accident, outside the factory premises, and had received injuries and thus remained under treatment and also on rest 6 till he was allowed to work at his job in the month of May, 1983. The claim of the workman was further, that when he reported for duty, he was not allowed to do so. The workman claimed that previously he was reinstated in service under the orders of the learned Labour Court, but, in spite of these judicial orders, he was neither taken on his proper and original post nor he was given the back benefits. Being aggrieved he had sent his grievance notice followed by the present girevance petition under section 25‑A, I.R.O. 1969.

3. The management had resisted the petition on the ground that in a previous litigation, the workman was ordered to be reinstated in service and against this order of the learned Labour Court, the management had preferred an appeal before this Tribunal and in the meantime, the workman was reinstated in service on his alternate post, as a Helper being medically not fit to perform the duties of Operator in view of the capacity of his muscle power and so he was also directed to appear before Dr. Aftab Ahmad Qureshi, Civil Surgeon in the month of February, 1986, but as the workman had deliberately not approached the said Doctor, therefore, again on 19‑2‑1985, his services were terminated, which was subsequently set aside by the learned Labour Court on 9‑9‑1986. The claim of the management was that even after lapse of 3 months the management had received a written report from the General Foreman stating that the workman is unable to perform his duties also as a Helper due to contracture of his left hand. Thus, his services were again terminated on 21‑12‑1986 as he was unfit to work even on the post of Helper. Thereafter, the workman sent his grievance notice followed by the present grievance petition which was liable to be dismissed. The management had further claimed that this fact was also brought into the judicial notice of the learned Labour Court No. IV at Karachi on 22‑12‑1986.

4. Both the parties led their respective evidence and they were duly cross -examined. One, Dr. Aftab Shaikh was also examined before the learned Labour Court. Thereafter, the learned Labour Court has passed the impugned order, hence, the present two cross appeals,

5. I have heard Mr. Muhammad Humayoon, the learned Advocate for the management and Mr. Ch. Rasheed Ahmad, the learned Advocate on behalf of the workman and have also carefully perused the record and proceedings of the case as well as the written arguments filed by the parties. At the very outset, I would observe here that an unnecessary and uncalled for litigation in between Muhammad Taj and Messrs General Tyre & Rubber Co., is going on since a long time and at all times, the workman, Muhammad Taj was not justified in filing cases after cases instead of acting in a lawful, proper and reasonable manner. The present application is a third time litigation as would be apparent from the impunged order itself. For all times, the behaviour and attitude of the workman was not proper and always he used to depend himself on litigation, instead of behaving in a proper and peaceful way. As the workman had himself avoided to be re‑examined by the Doctor regarding his fitness to work as an Operator, so, at this stage, it would not be justifiable or proper to claim by the workman that he was being victimized for his legitimate trade union activities. It is an admitted position on record that despite the directions of the learned Labour Court and also the management, the workman, Muhammad Taj, had preferred to avoid his appearance before the Doctors for his re‑examination and re‑assessment to enable him to join his original post of Operator, if found medically fit for the same. From the evidence of Dr. Aftab as well as in the opinion of the Medical Board, the workman was not quite fit to perform his duties as an Operator arid it was not legally reasonable to pressurize the management to keep such a workman in its employment and to sustain production losses. Mr. Muhammad Humayoon, the learned Advocate for the management has very convincingly argued that in the impugned order, the learned Labour Court had given choice to the workman that either he should work as a Helper for a period of three months and wait for his full recovery or accept the order of termination of service under Standing Order 12 of .the West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968, therefore, in pursuance of this order of the learned Labour Court the workman was kept as Helper on trial basis for a period of three months under observation of General Foreman, but, the workman could not improve his capacity and totally failed to work, even on a lower post of Helper which fact is evident from the record, i.e., a written report from the General Foreman, Muhammad Raj stating therein that the workman was unable to perform his duties as Helper due to contracture of his left hand. I have already discussed at length this aspect of the case in my Decision in Appeal Nos. KAR 39/85 and 73/85 respectively, dated 17‑4‑1988. Therefore, I need not repeat the same in these two cross appeals. In view of the admitted facts on record, it is crystal clear that the workman was unable to perform the duties of even a Helper C what to say the duties of a `Tyre Press Operator and so he was rightly removed from this employment also. Mr. Muhammad Humayoon, the learned Advocate has very correctly argued that taking into consideration the facts and admitted position on record, the learned Labour Court was not right in allowing the back benefits to the workman and so this order is also liable to be quashed. It is also an admitted position that the report of the Medical Board (showing the workman fit to perform the duties of even an Operator) was neither produced before the learned Labour Court nor the author of such a report was examined before it, therefore, legally it cannot be taken into consideration while passing an impugned order. In support of his arguments, Mr. Muhammad Humayoon, the learned Advocate has very correctly placed reliance on the authorities, reported in P L D 1973 S C 160 at page 191 and 1986 P L C 42 at page

44. He has further referred me to the cases reported in 1980 P L C 269 at page 271 and 1984 P L C 1512 at page 1513.

6. On the other hand, the arguments of Mr. Ch. Rasheed Ahmad, the learned Advocate for the workman, Muhammad Taj have no convincing force, as he has miserably failed to rebut the submission and legal references of Mr. Muhammad Humayoon, the learned Advocate on behalf of the management of Messrs General Tyre & Rubber Co. There is nothing on record to prove any malice or victimization on the part of the management, therefore, it would not be p proper to claim it against the management: If at all it was so, then, it was the duty of the workman to authentatively prove the same. This has not been done by the workman and he should thank himself. As regards the opinion of the Medical Board, I have already given my conclusion on this point in Appeal Nos. KAR‑39 and KAR‑73 of 1985, decided on 17‑4‑1988. I have also gone through a number of case‑laws submitted by Ch. Rasheed Ahmad, the learned Advocate for the workman. I find that all of them are distinguishable and have no relevancy with the facts, circumstances and legal aspect of the present case. Ch. Rasheed Ahmad, the learned Advocate for the workman has also referred me to a Decision of this Tribunal in Appeal No. SUK‑20/85, dated 17‑12‑1986. The facts and circumstances of this case are not similar with the facts and circumstances of the present case. Here, there is no question of different opinions of different F Doctors. In the present case, neither the workman had bothered to appear before the Doctor Aftab nor any one from the Medical Board was examined on oath before the learned Labour Court or before this Tribunal, therefore, the workman was not entitled to any concession of being reinstated in service with or without back benefits.

7. For the reasons discussed by me above, I would set aside the impugned order and would allow the appeal of the management. The result would be that appeal filed by the workman and also his original grievance petition under section 25‑A, 1.R.0. 1969, would stand dismissed. A.E./1241 /Lb.h Order accordingly.