1988 PLP 619 (PLC(CS))

‑‑‑Ss.25‑A & 38(3)‑‑Reimbursement of medical charges‑‑Worker incurring expenses in connection with his operation which he had undergone in emergency‑‑Policy letters issued by employer allowing reimbursement amounting to addition of facilities in terms and conditions of service of worker‑‑Order of Labour Court allowing reimbursement of medical expenses to worker in circumstances was maintained. (g) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑Ss.25‑A & 38(3)‑‑Reimbursement of medical charges for dependents of workers‑‑Father of worker depending on worker and not proved to have been working any where else at time he had fallen ill‑‑Employer also issuing a docket in , form of a letter enquiring from medical officer how long' medical treatment would be needed for him‑‑Worker, held, rightly claimed medical reimbursement of expenses incurred by won illness of his father. (h) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑Ss.25‑A & 38(3)‑‑Grievance petition‑‑Imposition of costs‑‑No court fee was payable either on application under S.25‑A or under S.32(1)(a) of Ordinance XXIII of 1969, or by employer on written statement‑ Question of imposition of costs, held, could not arise, in circumstances. (i) Industrial Relations Ordinance (XXIII of 1969)‑‑ ‑‑‑Ss.25‑A, 38(3) & 49(3)‑‑Engagement of lawyer‑‑Express permission to engage counsel not shown to have been granted by Court and worker engaged counsel on his own responsibility‑‑No provision available in Industrial Relations Ordinance for allowing costs and counsel's fee‑‑Order of Labour Court allowing counsel's fee to worker was set aside. Asadullah Siddiqi for Appellant. Munawwar Ahmad Javed for Respondent. Dates of hearing: 17th and 18th March, 1987. This is an appeal directed against the decision dated 17‑11‑1986 recorded by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad, whereby accepting the grievance petition of the respondent, the appellant has been directed to immediately pay to the respondent a sum of Rs.4,392.05 on account of reimbursement of medical charges for his own treatment and for the treatment of his father. The respondent has been allowed lawyer's fee also as cost of litigation, which has been directed to be recovered from or debited to the functionaries of the appellant on account of whose mala fide act and conduct the respondent was forced to resort to litigation. 2.The respondent felt some trouble in the right kidney and thus, consulted Dr. Muhammad Saleem Sheikh of Al‑Shifa Medical Centre, who at that time was an authorised medical officer of the appellant mills. The said doctor referred the respondent to Prof. Ali Jawad Jafry, a specialist, who, besides prescribing certain medicines, further referred him to E.N.T. specialist. The respondent after getting verification of the reference from Dr. Muhammad Salim Sheikh consulted the E.N.T. specialist who admitted him to Mian Muhammad Trust Hospital, Faisalabad and operated upon him for some nose trouble. The respondent was discharged from the above‑mentioned hospital on 30‑8‑1984. After being discharged from the hospital and completing the period of rest according to the advice of the doctor, he reported for duty on 27‑9‑1984 and submitted medical bills for the reimbursement of expenses incurred by him consisting of the prices of the medicines, consultation and operation fees totalling Rs.2,388.15. The father of the respondent also fell ill and was admitted to Faisal Hospital on 13‑8‑1984 where he remained under treatment till 19‑8‑1984. The respondent applied for docket but it was not issued. The respondent, thereafter, on 17‑10‑1984 submitted medical bills for Rs.2,203,90 incurred on the treatment of his father. On 11‑11‑1984 the respondent submitted duplicate bills since he was that the previous bills had been lost. Before the medical charges mentioned above could be paid, the respondent was removed from service thrice one after the other and every time was reinstated under the orders of the Labour Court. On 24‑12‑1985 the respondent submitted duplicate bills pertaining to the reimbursement of medical charges of the illness of his father since he was told that the bills after being returned to him for verification and attestation had not been resubmitted. Only Rs.200 were paid to the respondent out of the amount claimed by him on account of reimbursement of medical charges for his own illness. The respondent, therefore, after serving grievance notice, brought the grievance petition.

3. The learned counsel for the appellant has argued that the grievance notice and the grievance petition were time‑barred. According to him, the cause of grievance arose to the respondent on 27‑9‑1984 when the medical bills were returned to the appellant. The argument is without force. The bills were returned on 27‑9‑1984 not by way of finally refusing to pay the medical charges but for attestation and verification. So is the case with the claim of the respondent with regard to the reimbursement of medical charges for the illness of his father. On 17‑10‑1984 the bills were delivered but they were returned for want of a docket. The respondent submitted duplicate bills on 11‑11‑1984. It has not been shown that the duplicate bills with regard to the illness of the respondent's father were finally refused on such a date that from it either the grievance notice or the grievance petition was, time‑barred. The other argument of the learned counsel for the appellant is that after the respondent was dismissed from service, he kept quiet for about one year and did not ask for the payment of the medical charges, therefore, the period for giving grievance notice and bringing grievance petition had expired. The first application after the submission of the bills is Exh.R‑21 dated 20‑11‑1985. The learned counsel for the appellant says that this is a grievance notice and thus, it is time‑barred. This application was replied on 12‑12‑1985, the reply is Exh.P.10. By this letter duplicate bills were invited. Since the dispute was not finalized but an impression was given to the respondent by inviting duplicate bills that his claim would be considered, he was not required to bring the grievance petition either ‑within two months and fifteen days cf Exh.R.21 or within two months of the reply Exh.P.10. Learned counsel for the appellant argues that since Exh.P.10 was received by the respondent beyond 15 days, the period of limitation which had already started expired on the expiry of two months and fifteen days and thus, the petition, which, could be brought in January, 1986, was time‑barred since it was brought on 24‑5‑1986. The answer is the same that since vide Exh.P.10 duplicate bills were invited, the respondent was justified in not bringing the grievance petition. If he had brought the grievance petition at that time, it would have been premature as his claim was still under consideration vide Exh.P.10. The other letter sent by the respondent is Exh.P.15 dated 9‑3‑1986 received by the appellant on 10‑3‑1986. According to the learned counsel for the appellant, Exh.P.15 was irrelevant since only one grievance notice is contemplated by section 25‑A, of the Industrial Relations Ordinance, 1969. He also argues that even from 10‑3‑1986 the grievance petition was time‑barred, since the petition was presented on 25‑5‑1986. This is also wrong. The petition gas presented on 24‑5‑1986 although it was registered on 25‑5‑1986. The first order recorded by the Court on the application is dated 24‑5‑1986 and this was the last day for the submission of the grievance petition. This i's the answer to the argument of the learned counsel for the appellant. In reality the grievance notice is dated 18‑5‑1986 Exh.P.16, On 26‑4‑1986 vide document Exh.R.23 Rs.200 only out of the total amount of the claim of the respondent were paid to him. It means that on 26‑4‑1986 the remaining claim .of the respondent was refused, therefore, the respondent had to give grievance notice for the amount minus Rs.200 already paid to him. The grievance notice Exh.P.16 was replied on 19/20‑5‑1986. The reply is Exh.P.17. The respondent, therefore, within two months of the receipt of Exh.P.17 could bring the grievance petition. He brought the grievance petition after four days only on 24‑5‑1986. Thus, neither the grievance notice nor the grievance petition was time‑barred. The learned counsel for the appellant has cited 1983 P L C 458, 1983 P L C 701, 1985 P L C 1068 and 1978 P L C 301, but they are distinguishable from the facts of the present case. This is true that only one grievance notice is contemplated by section 25‑A, and after the service of grievance notice time starts from A there for bringing the grievance petition and no fresh period can be taken by the worker from any subsequent grievance notice. But the present case is quite different. In this case, the claim of the respondent was not finally refused before 26‑4‑1986. As mentioned above, no order finally refusing the claim was conveyed to the respondent and rather he' was told that the bills had been lost and duplicate bills were invited. It was on 26‑4‑1986 that vide Exh.R.23, as mentioned above, the respondent was paid Rs.200 only out of his total claim.

4. The other point raised by the learned counsel for the appellant is that the facility of medical reimbursement was allowed as a special case in emergencies and otherwise a fixed medical allowance was being paid to the respondent, therefore, the claim is not guaranteed by any law, award or settlement. It has also been argued that letters Exh.R.13 and Exh.R.14 on the basis of which the grievance petition was brought neither can be treated as settlement nor any law. So far as the first point is concerned, I do not find any force in the arguments of the learned counsel that there was no emergency, inasmuch as docket Exh.R.16 was issued on 18‑7‑1984 but the respondent was operated upon for some nose trouble on 30‑8‑1984 and that after six days of the reference he had consulted the E.N.T. Surgeon. The line of his argument is that if there had been some emergency soon after the issuance of the docket the respondent would have been operated upon. 'Emergency' has been explained in the very letter Exh.R.15 which is the basis of the grievance petition. The relevant portion of the letter reads as under‑.‑ "as a special case in case of emergency i.e. operation, accident and prolonged illness on the recommendations of the authorised Medical Officer of A1‑Faisal Hospital, Faisalabad." According to the explanation given in the letter operation is included in emergency. This is not denied by the appellant that the respondent was operated upon for some nose trouble. So there was an emergency and delay in undergoing the operation is not material. The other argument of the learned counsel in this connection is that since the respondent did not obtain any docket for nose trouble, he is not entitled to re‑imbursement of medical charges. In ‑Exh.R.14 it is said that the employee concerned would be issued a docket by the management to get necessary treatment from A1‑Faisal, Hospital. The respondent had actually obtained the docket although that was for some kidney trouble. He had appeared before the company's doctor who referred him to the expert and who further referred him to E.N.T. specialist whose finding was that the real disease from which the respondent was suffering was some nose trouble. The respondent did make an application copy of which is EXh.P.l in connection with his nose trouble, therefore, it cannot be said that he did not apply for any docket for the said disease. The case of the appellant is that no application copy of which is EXh,P.1 was received. Exh.P.2 is the postal receipt, it, therefore, cannot be said that no application was sent by the respondent. I do not find any force in the arguments of the learned counsel for the appellant that since full address of the appellant is not given on postal receipt Exh.P.2 it does not show that it relates to the application copy of which may be Exh.P.l. On postal receipt full address is not given. Full address is given on the registered letter, which is delivered. Postal receipt Exh.P.2, therefore, relates to Exh.P.l. It has also been argued that since the respondent did not depose that the letter in which the original of EXh.P.l was sent was not received back undelivered, it cannot be presumed that service of the registered letter was proved. This is true that the respondent did not say so in his statement but if the letter had been received back undelivered, the respondent would have brought it on the record. Needless to say that registered letters, which are not delivered for some reasons to the addressee are returned to the sender. Even otherwise, absence of a docket is not sufficient to disallow medical re‑imbursement. In Exh.R.14 it is not said that medical re‑imbursement could be refused if no docket was got issued. So R firstly the docket Exh.R.16 was sufficient and secondly absence of docket is not sufficient to disallow the medical re‑imbursement.

5. This argument of the learned counsel for the appellant too is without force that Exh.R.13 and Exh.R.14 neither can be treated as a settlement nor a law. No doubt, they cannot be treated as a settlement because for a settlement as defined in section 2(xxiv) the agreement should be in writing and signed by both the parties whereas Exh.R.13 and Exh.R.14 do not bear the signatures of any office holder of the C.B.A. But these letters can be treated as a rule and thus, have a force of law. They amount to addition of facilities in C the terms and conditions of service. Needless to say that terms and conditions on which the workers are employed have a force of law. Learned counsel for the appellant has in this respect cited P L D 1969 Lah. 709 and 1975 P L C

17. So far as the first mentioned ruling is concerned, the citation appears to be wrong. There is no ruling at page

709. One starts from page 710 but the same is not relevant to the present case. The authority arises from the case brought under section 3 and appeal under section 30 of the Workmen's Compensation Act. In P L D 1962 S C 75 the term 'statutory rules' was interpreated. It was observed that rules not framed under any statutory, provision could not be described as statutory rules. The question involved related to allotment of Government property on rent to Government servants. It was held that the tenancy was at will and could be terminated by the Government. The grievance petition was not brought by the respondent on the basis of any rule framed on the basis of a statutory provision, the ruling, therefore, is not germane to the facts of the present case. In 1975 P L C 17 it was held by P L C 2 in its appellate jurisdiction that transfer order ignoring departmental instructions could not be challenged. Needless to say that transfer is the right of the employer in cases where the post is transferable and thus, unless mala fides is pleaded, a transfer cannot be challenged. This ruling too, therefore, is distinguishable. On the other hand learned counsel for the respondent has cited certain rulings but they too are not to the point. They are 1985 P L C 185, 1984 P L C 1224, 1964 S C 21 and 1983 S C M R

769. In the last mentioned ruling it has been observed that section 25‑A, is available to a workman who has a grievance in respect of any right guaranteed by or 'under any law' which would also include the violation of service rules incorporating the settled principle of law that the trial of the case and the evidence should remain confined to the pleadings of the parties and no new case be allowed to be set up in evidence. The question under discussion in the present case is not of any right guaranteed by service rules but of service conditions. The result is that no relevant ruling on the point has been cited by the learned counsel for both the parties. But there is no difficulty in solving the problem whether the service conditions have the force of law in labour cases. The word 'law' used in section 25‑A, includes terms and conditions of service. When once the terms and conditions of service have been settled by the employer and the employee both of them are bound by such terms and conditions and violation of any term by one party, gives a right to the other party to go to the Court. The only condition is that the terms and conditions should be such that they are not prohibited by any law. The words in which Exh.R.13 and Exh.R.14 are couched do not show that the appellant retained any power to disallow medical re‑imbursement at its will. If the phraseology used in the letters Exh.R.13 and Exh.R.14 had shown that it was discretionary with the respondent to allow or disallow medical re‑imbursement, of course the refusal on the part of the appellant could not have been challenged by the respondent in his grievance petition. The only thing to be seen is whether the two letters actually apply to the case of the respondent. As discussed earlier the operation which the respondent had undergone is covered by the term 'emergency' and thus, he is entitled to re‑imbursement.

6. The other point is whether the respondent was entitled to claim medical re‑imbursement for the illness of his father. He had applied vide application Exh.P.20 for the docket but it was refused. Application Exh.P.20 is dated 14‑8‑1984. The father of the respondent again fell ill and another application copy of which Exh.P.5 dated 27‑8‑1984 was made for the issuance of the docket for the previous and for the subsequent illness. Exh.P.6 is the docket dated 3‑10‑1984. This is in the form of a letter to the company's doctor. Enquiry was made from the doctor vide this document about the condition of the respondent's father to the effect for how long medical treatment would be needed. This shows that the respondent was entitled to get treatment for his father, otherwise Exh.P.6 would not have been issued. Even R.WI admitted that the father of the respondent, was entitled to medical aid. Exh.R.7 is the letter sent by the appellant to A1‑Faisal Medical Centre informing that Messrs A1‑Shifa Medical Centre had been appointed as medical consultant for the treatment of the employees of the appellant and their family members. Exh.R.10 is another letter sent by the appellant to its doctor. In this document it is mentioned that list of family members alongwith their entitlement G would be supplied. Learned counsel for the appellant has not made any reference to any document wherein the term 'family members' may have been defined. Learned counsel for the appellant has argued that father of the respondent was employed in P.R.T.B., therefore, cannot be said to be family member of the respondent. There is no evidence to the effect that at the time the father of the respondent had fallen ill on two occasions and was treated by appellant's doctor, he was an employee of the P.A.T.B. He may have been at one time employed with the P.R.T.B. abut if he had been employed there at the time he had fallen ill, the appellant would not have issued Exh.P.6. The respondent, therefore, rightly claimed medical reimbursement for the expenses incurred by him on the illness of his father. The other point argued by the learned counsel for the appellant is that the learned lower Court had no jurisdiction to impose costs and to issue direction that the same should be recovered from the functionaries of the appellant who are responsible for the refusal of the payment of medical charges. Since in labour cases no court‑fee is paid either on the application made under section 25‑A, or under section 32(1)(a) or by the employer on written statement, no question of imposition of costs arises. So far as counsel's fee is concerned, no party can without the permission of the Court can engage a lawyer. Section 49(3) of Industrial Relations Ordinance is clear on the point. No.l express permission granted by the lower Court has been pointed out by the learned counsel for the respondent. It, therefore, can be said that the learned counsel for the respondent appeared before the learned lower Court under an implied permission. If there had been any express order permitting the engagement of the counsel it could be seen on what terms the permission was accorded. The respondent, therefore, engaged counsel of his own responsibility and thus, could not claim counsel's fee. The other thing is that even in civil cases counsel fee is allowed on the filing of the certificate before the decision of the case and no afterwards. In the present case there was no certificate of examined fee charged, on the file, therefore, the learned lower Court had allowed the learned counsel for the respondent to file the certificate within three days after the decision of the case. Firstly there is no provision in Industrial Relations Ordinance for imposition of cost and allowing counsel fee and secondly as in civil cases certificate is to be filed prior to decision of the case, the learned lower Court was not justified is allowing counsel fee. Since the impugned order with regard to cost is not maintainable no question arises whether the costs should be paid by the appellant or the functionaries mentioned by the learned lower Court in its judgment.

7. As a result the appeal is partly accepted and modifying the impugned decision, the order with regard to the imposition of costs and the direction that the same would be paid by the functionaries are set aside. M.Y.H./352/Lb.P Appeal partly accepted.