1986 PLP 962 (PLC)

5. In his evidence, he has disclosed that Muhammad Yousuf is the General Secretary of the Union.

6. Mr. Maroof has also stated . that previously the Company was known as Dalmia Cement Factory. All the workers were provided medical facilities of maternity nature inclusive of other facilities. And this facility of medical nature was the term and condition of the service by means of custom, usage and practice.

7. There is also rule produced as Annexure AW/1 of June 28, 1978 which shows that in clause (e) it was provided that free treatment in recognized hospital to the permanent employees and their dependents will be considered essential by the medical officer of the Company. In that rule there is also provided maternity expenses. Besides this clause, that if the wife of permanent employee is registered as a pregnancy case with Company's colony, the certificate of medical officer shall be sufficient.

8. There is also further settlement produced as AW/4 to show that in demand No. 4 there was clarification that C . B . A . has agreed with the management :hat medical facilities provided to the workers should not be misused and the expenditure on this account should be curtailed wherever possible. This settlement was of 1984 to 30th June, 1986.

8. In the previous rules of 1978, the word dependent has also been shown to include wife and non‑earning children of permanent employees.

10. One Mr. Raza has also appeared as a General Secretary and has stated that respondent Company has the medical rules and there was a settlement with the management regarding elimination of misuse of medical facilities in order to curtail the expenses. This has been approved by the Works Council. 11. he has also further stated that no medical facilities have been curtailed by the management of any employee but since the medical facilities were being misused, the compliance of the rules were decided by the management with the consultation of the C.B.A.

12. The evidence of Ghulam Raza is very important to this effect that he himself has admitted that medical rules were also framed in consultation with C.B.A. in the year 1978. But he has shown the ignorance that what were the rules before 1978 although he has stated that he was receiving medical facilities even in 1968.

13. By his evidence, therefore, this has established that the rules of June 28, 1978 AW/1 were also in force and applied to the workers till the settlement of 1984‑86 has come with the consent of the C . B. A .

14. The Court also further refered the cross‑examination of Muhammad Maroof. He has stated as under: "It is not a fact that the settlement was signed by the union and the management. I cannot say whether this document was signed. I produce the same as AW/1. I do not know whether this settlement was approved by the Works Council. I do not know anything about the circular as AW/3. This circular was in the nature of enquiry that 'whose wives are employed in other service and what are the facilities given to them."

15. In support of this the Court, will also refer the letter of Headmistress where it is shown that Mat. Nusrat Shahnaz wife of Muhammad Yousuf was entitled for maternity and medical facilities in that institution.

16. With this background the Court has examiend this aspect whether the facility of Mst. Nusrat Shahnaz was withheld and whether the respondent could withhold the facility to the wife of Muhammad Yousuf if she was also serving in the school which is plrso the Government service, and by the rules of service she was also entitled to same facility.

17. By the rules of Government Service, certainly one Government servant if employed in other service which is also under the control of Government cannot have double benefits. This not only involves the A expenditure but also amounts to the violation of this provision. But here the case of being Company, whether it is distinguishable because Muhammad Yousuf works in the respondent Company and not working in the Government service. Certainly there is a distinction that if Muhammad Yousuf was also working in the Government service and at the same time drawing the benefit himself of the dependents in other Government service, he cannot get double benefits. Here the facts are peculiar that Mst. Nusrat Shahnaz is working in the school and Muhammad Yousuf is working in the industry. If Muhammad Yousuf is employed in his own right as a workman and rule of 1978 provides that he gets the faculty for the dependents also. This also includes the wife as evident from the previous rules of 1978. If Mst. Nusrat Shahnaz is working in the Government institution she works in her own right for the medical facility as provided in the Government service which shows confirmation in her own right. If the medical facility is provided to Muhammad Yousuf in the Company it is the medical facility to him and the dependents which also includes the wife.

18. But the respondent has raised the question of controversial nature that Company has rules and the settlement has been entered into between union and the Company under the Industrial Relations Ordinance which has also legal sanctity. By that term of Settlement, the facilities which were misused can be curtailed.

19. In other words it has not been said that the medical facilities have been withdrawn.

20. Firstly it has not been shown to the labour Court that how this was misused. Merely because Mst. Nusrat Shahnaz was entitled to facilities in the job she holds in her own right as the Government servant. Whether she can be disentitled to the facility which is also received by her husband in her own job as the term of service which also finds in the rules of 1978 and has been supported by the General Secretary of the labour union Mr. Ghulam Raza that these rules were existing. In the evidence of General Secretary another fact has also come in the evidence where he has disclosed that this Company is controlled by the Government. Prior to it, it was known as Dalmia Cement Factory.

21. Muhammad Asghar who has appeared as the Manager Administration has not disclosed anywhere in the evidence that this Company is under the control of Government or even stated in cross‑examination that this Company is under the control of the Government.

22. To that he has stated in the evidence, that management issued a circular that if the wife of the employee is working in any Government Department, they will not be entitled for the medical facilities. He has further stated that since wife of applicant was working in the Education Department, they stopped the medical facility.

23. The Court has looked into the rule of 1978. There is also qualifying clause that husband and wife of female and male employees will not be entitled to free medical treatment of any sort if they are employed in any Government Department where medical facilities are available so that double facility is not allowed.

24. Muhammad Maroof who is assistant in the respondent. Company since 1955 has also stated, that all workers including children and wife of the workers were given the medical facilities since 1955 and also the wife of the workman if so employed in some other Government service was also given the medical and maternity facility. If the evidence of Muhammad Maroof supports that this facility was given to the employees since 1955, and even since 1947 there is no rule produced before 1978. It follows that the workers who were employed in 1978 were also in enjoyment of the medical facilities for the convenience including the women employed in Government service, as in the present case of Muhammad Yousuf who is employed since 1967. If the date of appointment is seen, Muhammad Maroof has said that Muhammad Yousuf was employed since 1967 and Muhammad Yousuf has said that he was employed since 1973. There is vast difference. This alone, cannot improve the position of the case of the respondent because, first time rule has been shown of 1978. If other rules were also before 1978 those have not been produced to show that there was a bar even in 1973, where the applicant Muhammad Yousuf had to face this hurdle that as per rules, if the wife of the applicant was working in Government service cannot be entitled to the maternity facility, as a double benefit. He has been employed in 1973 and he received medical facilities like other workers. This is also very interesting aspect of the matter. The rules of 1968 are not produced when the General Secretary of the labour union has stated that there' were rules and General Secretary Ghulam Raza has also shown unawareness whether the wives of workers employed in Government service were getting facilities from the hospital. According to Ghulam Raza, these rules which are produced of 1978 were framed in consultation with C. B. A. but these rules of 1978 also do not show that there is signature of the union officers except there is endorsement that photo copy of rules is signed by C. B. A. on each page.

25. Further section 4 of the Standing Orders is very important that Standing Orders may be modified by means of collective agreement and not otherwise, provided that no such agreement shall have the effect of taking away or diminishing any right or benefit available to the workmen under the provisions of the schedule. Standing Order 9 provides that nothing in this Ordinance shall effect any law, custom, usage award or agreement in force before the promulgation of the Ordinance, in so far as such law custom, usage or award ensures the condition of employment more favourable to workmen than those provided in the Standing Orders.

26. By these provisions of the Standing Orders the Court is of the view that if these facilities were provided to workmen in 1973 prior to the rule of 1978, an agreement subsequent, to, even with C.B.A., cannot take away the benefit which was available to the workmen.

27. The Court further is also of the view that Muhammad Yousuf is not employed in any other Government job to deprive him of the facilities which go in his own right wife also includes within the meaning of dependents, and such rule is contrary to the spirit of sections 4 and

9. If Mst. Nusrat Shahnaz is getting facility, it is in her own right. If Muhammad Yousuf is getting facility it is the term of the job, that he will get full facilities which go with his family. There is no proof also that facilities were misused by wife of Muhammad Yousuf.

28. The Court further has examined the document and found that if Muhammad Yousuf's record is not pleasant as remarked in the judgment of the civil Court of which the appeal was also dismissed that cannot effec'4 the wife's facility when it is independent cause of action to take an action. This on the contrary shows the evidence of victimisation as a subsequent thought after the remarks seen of the civil Court's judgment when Muhammad Yousuf is shown as a false witness and the Company had retaliated for his undesirability of filing suit against them.

29. Application is allowed that his wife cannot be denied facilities. A. A. Application allowed.