1981 PLP 660 (PLC(CS))

‑‑ S. 25‑A read with West Pakistan Industrial and Commercial Emp loyment (Standing Orders) Ordinance (VI of 1968;, S. O. 10‑B Premature retirement on account of physical incapacity challenged as wrongful ‑Claim rejected by Labour Court ‑ Con tention that Labour Court should have awarded compensation under S. O. 10‑B‑Contention rejected ‑ Held, petition before Labour Court restricted to grievance notice to employer in which only retirement challenged as unlawful termination and claim for compensation to be adjudicated by Commissioner, Workmen's Compensation. S. M. Kohisdani for Appellants. Date of hearing : 23rd July, 1981. The 2 appellants who were employed as tongsmen in the Metro politan Steel Corporation, Landhi, the respondents herein, were pre maturely retired from service with effect from 16th December, 1980, by identical orders on the ground that they were incapacitated from perform ing the duties of tongsmen. The appellants challenged these orders be fore the learned IVth Labour Court which has dismissed their grievance petitions by a consolidated order in which it has upheld the orders of retirement of the appellants on the ground that they were physically in capacitated from performing the duties of tongsmen. The appellants have now come up in appeal to this Tribunal.

2. Before dealing with the contentions raised by Mr. Kohistani against the impugned decision of the learned Labour Court, it may be mentioned that while the appellant Miskeen met with an accident at his native place in which his left elbow was dislocated. As regards appellant Ghulam Karim, he was operated for removal of Kidney Stone in the Liaquat Medical Hospital, Karachi, on 5th May, 1980, and in consequence of that operation, he was recommended light duties by the hospital doctor. On resumption of their duties at the respondent establishment, both the appellants requested for lighter jobs than that of tongsmen, which presumably involves heavy work. It appears, however, that the respondent establishment was either unwilling or unable to give them any lighter job and since they were on their own showing unable to perform the duties of tongsmen, they were prematurely retired with effect from 16th December, 1980.

3. It was contended by Mr. Kohistani that there is no provision in the Standing Orders for premature retirement of workmen on medical or any other ground. On the other hand, there is no specific bar in the Stand ing Orders for such retirement, which may be treated as a form termination of services sind such retirement results in severance of the bond of employer and employee. Clause (1) of Standing Order 12 provides that for terminating the services of a permanent employee for any reason, other than misconduct. one month's notice or pay in lieu of notice shall be given. The orders of premature retirement of the 2 appellants specifically recite that each of them would be paid one month's pay in lieu of notice. It may further be mentioned that there is a rule in the respondent‑Establishment which provides that any permanent employee, irrespective of his position or cadre, shall be liable to be retired before the attainment of superannuation age if in the opinion of the Company the employee becomes physically and mentally incapacitated to perform his duties effectively. This rule was issued in the form of a circular on 9th October, 1974, and was affixed on the main notice board of the Company as required by the Standing Orders. Reference to retire ment on the ground of permanent disablement or physical or mental disablement has also been made in the agreement entered into by the respondent‑Establishment with its Collective Bargaining Agent on 3rd August, 1974. This provision in the settlement thus ]ends support to the existence of the rule in the respondent‑Establishment regarding the pre mature retirement of any workman on the ground of disability or physical incapacity to do the job for which he had been employed.

4. It was next contended by Mr. Kohistani that there was no material one record to establish that the appellants in fact were incapacitated from performing their duties. It is an admitted position that appellant Mohammad Miskeen had suffered dislocation of his left shoulder and the same had not been completely healed, while the appellant Ghulam Karim had undergone an operation for the removal of a stone in his kidney. Medical certificates in this behalf were produced before the learned Labour Court. Furthermore, both the appellants have moved application: before the Commissioner, Workmen's Compensation, for awarding to them of compensation on account of disability suffered by them while in the employment of the respondent‑Establishment. The claim of appellant Miskeen is for 20% disability compensation, while that of appellant Ghulam Karim was for 50% disability compensation. Finally, the appellants themselves had submitted applications to the respondent‑Establishment claiming that they were unable to perform the duties of tongsmen and have sought lighter duties. It is thus clear that by reason of their physical disabilities the appellants were not in position to perform their duties. As such, the respondent‑Establishment was clearly within its rights to terminate their services. The appellant could not as of right claim to be entitled to be given different and lighter jobs. No such provision, award or settlement was cited in support or, such claim.

5. It was finally contended by Mr. Kohistani that the Labour Court should at least have awarded the appellants compensation under Standing Order 10‑B. This claim, however, is untenable for a number of reasons. In the first place, it is an admitted position that they already have approached the Commissioner, Workmen's Compensation; fore award of compensation to them on account of the disability, suffered by them, secondly, the determination of compensation under Standing Order 10‑B, is to be made in the manner provided under the Workmen'. Compensation Act, 1923, which would necessary imply, in the absence of any provision or indication in the law to the contrary, that the claim has to be adjudicated upon by the Commissioner, Workmen's Compensation, and finally, it may be pointed out that a right can be enforced by a workman under section 25‑A, I.R.O only if the employer is served with a grievance notice in respect of such right. Although a grievance notice was given by both the appellants to the respondent‑Establishment, the grievance in respect of which redress was sought was limited to unlawful termination of services and the claim was made for reinstate ment of service with full back benefits only.

6. In view of the above discussion, I find no merit in these 2 appeals and accordingly dismiss them in limine. Petition dismissed,