2005 PLP 119 (PLC)

2. The respondent union submitted reply and took objection to the very maintainability of the petition that OGDCL is not an establishment A or institution solely maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons as mentioned in clause (e) of section 1(4) of the Ordinance. According to the respondent the exclusion clause would only be attracted to the hospitals which are run on non commercial basis

3. Today the case has been argued by both sides at length. The perusal of the entire file demonstrates that election of All Pakistan OGDCL Mazdoor Ittehad Union (Regd) was held on 22‑6‑2002. The documents/proceedings of the elections were processed and were found to be in accordance with the provisions of the Constitution. The learned Member/RITU vide his order dated 11‑7‑2002 approved the change of the office‑bearers of the union.

4. The petitioner took objection to the nomination of three office bearers namely M/s. Naseeruddin Arzo, Vice President, Adam Qaisrani, Joint Secretary and M. Kazim, Executive Member out of the list of 136 office bearers on the ground that the Ordinance would not be applicable. To resolve this controversy it is appropriate to reproduce the section 1(4))(e) which is as under: "(e) By an establishment or institution maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons excluding those run on commercial basis".

5. It is to be noted that in the Industrial Relations Ordinance, 1969 through second amendment in the year 1979 clause (f) of section 1 of sub‑section (3) of the repealed Ordinance was added Which was in the following terms: "(f) By an establishment maintained for the treatment or care of sick, infirm, destitute as mentally unfit persons".

6. In the present Ordinance the Legislature has made two changes, firstly the word 'Institution' has been included and secondly exclusion is not applicable to those run on commercial basis. It is not denied that the petitioner has set up dispensaries throughout the country which are presently 52 in number. Apart from this admittedly a full‑fledged hospital is maintained by .the petitioner at P‑8 Islamabad for indoor treatment where 10(ten) doctors apart from paramedical staff are working. The duties of dispenser admittedly as reflected are manifold. It would be appropriate to mention some of the duties which are as under: "Provide first aid to employees, make dressings and administer injections as routine and in emergency. Keep and maintain up to record for consumption/issue of medicines to employees/locals in fields/Rig locations. Ensure that emergency drugs/medicines and Oxygen Cylinder fitted in are readily, available to meet any emergency. He shall also carry out such other assignments which may be given to him from time to time".

7. The argument of learned Counsel that exclusion clause would only be applicable to the hospitals and not to the institution or establishment where the, employer in order to provide better medical facilities to the employees set up dispensaries of the present kind is devoid of any force. The Legislature in its wisdom has excluded the employees working in such like situation for the betterment of their employees. These dispensaries and hospitals maintained by the petitioner, are not run on any commercial basis. They are there as already stated to cater not only the emergent situation but also to look after the treatment of employees. If the employees of the dispensaries are allowed to participate in the trade union activities in an establishment it would certainly have adverse effect in the maintenance of such‑like activities on a smooth scale. Legislature has also used the word by the Establishment' which denotes that if an establishment has an additional venture for the betterment of its employees and maintains dispensaries so as to take care of health of the employees the exclusion clause would be attracted. In an identical case reported in 1986 PLC 521 (The Project Manager, Pakistan Mineral Development Corporation and Goal Keel Coollieries, District Mianwali versus Punjab Appellate Tribunal, Lahore and two others) relying upon an earlier case of Sindh High Court reported in 1984 PLC 1679 (Mrs. Naseem Sadique v. Sindh Labour Appellant Tribunal and others) the Division Bench of Lahore High Court has held as under: "Clause (f) was added to sub‑section (3) of section 1 by an amending Ordinance of 1979. Under this clause the I.R.O. was made inapplicable to persons employed by an establishment maintained for the treatment and care of sick and infirm persons The question whether this exclusion applied only to hospitals as such, or also to the hospitals which were attached with other industrial or commercial establishments, was answered by the Hon'able Karachi High Court in the case of Mrs. Naseem Sadique v. Sindh Labour Appellate Tribunal and others. It was held that a Nurse of a Railway Hospital at Karachi could not take advantage of the I.R.O. as her case was covered by clause (f) of Sub‑section (3) of section 1 of the I.R.O., The learned Counsel for the petitioner has also referred to the case of Muhammad Aqil v. Sindh Labour Appellate Tribunal and another PLD 1978 Kar. 649 in order to show that an employer may have more than one establishment and that the Pakistan Mineral Development Corporation hospital attached with the Collieries should be treated as a separate and independent Establishment even though it was maintained by the P.M.D.C. There is merit in the submission as one cannot lose sight of the fact that the exclusionary clause introduced by the amending Ordinance, 1979 was meant to protect establishment like hospitals from the vicissitudes of industrial action." Resultantly the petition is accepted and it is held that the provisions of Ordinance would not be applicable to the paramedical staff working in the dispensaries and hospital of the petitioner. H.B.T./112/NIRC Petition accepted.