1986 PLP 554 (PLC)

9. I have heard Mr. Farooq Ghani and Mr. Rasheed Ahmed Chowdhry, and examined the evidence on record of this Court.

10. Mr. Rasheed Ahmed has contended, that, Mr. Muhammad Taj was physically fit to perform the job. There was no need further, to refer him to the Surgeon. He referred also, to the certificate of Dr. Ali Muhammad Ansari, on record, to support, Mr. Taj's physical fitness.

11. However, this is not denied, that, Mr. Muhammad Taj met with an accident, where his hand went in sugarcane machine. It is also not denied, that, Mr. Aftab found him unfit, in his initial stage of assessment. This is also not denied, that, Mr. Taj did not visit the Surgeon third time, after trial basis, for assessment of his muscle power, when it was the management desire, which he had to obey, as the employee, in the job, where there was relationship, of master and servant.

12. Dr. Aftab Ahmed, in his evidence, has referred, which I quote: ‑ "I see my certificate. Mr. Taj was not fit for the post of Operator, by the result of contracture of his left hand. He again came to my clinic. I recommended, that, he be kept on trial basis, and again, to be re‑assessed after period of 12 weeks. He again came, and I found, that, he was able to do his duty, but, there was inadequate muscle power, and there was possibility of recovery after 3 months. I do not remember, whether he again came on 26‑7‑1983."

13. This was the opinion of experienced Surgeon. Mr. Taj admittedly did not visit the Surgeon, when he desired to re‑assess him for investigation of his muscle power.

14. The question now, be raised, whether the management was justified to terminate his services, or, what the applicant has insisted, that, he was fit to work as an operator, doing even overtime. Mr. Taj, during his evidence, has stated, that, he was fit to work, but the. management insisted, to get him re‑assessed, by the Surgeon.

13. So far as Mr. Taj stated, that, the management had no right, to refer him, when he was fit on duty, it is the management's privilege, who could be in better position, to assess his capacity, because, the production and the quality of work was the privilege of the management, to judge. Secondly, the experienced Surgeon, like Mr. Aftab Ahmed, himself has examined his capability, that, he has lost his contracture muscle power, but gave him trial, for improvement and recovery.

16. Mr. Rasheed Ahmed Chowdhry has referred to the record of production, which is produced by Mr. Lakhani, the respondent's witness, whose evidence I refer: ‑ "I see overtime slips, for September, October, December, 1982. I see the cards, to show, that, he worked for 24 hours, in addition to his usual duty. It is correct, that, he was required, to be present for 32 hours, at a time. There is no written report against the applicant, till December, 1983. It is correct, that, from March, 1983, he was certified to be retained in job. It is correct, that, there was no adverse report against him, between 28‑10‑1983 to 19‑1‑1984. We have no production sheets of 1983."

17. Then the last question, which the witnesses has replied, that, it is not true, that, he has given more production, from May, 1983, to 19‑1‑1984.

18. With this history‑sheet of work, which Mr. Muhammad Taj was doing, the respondent has also failed to produce the production sheets of 1983, for the Court, to assess the production, that, it went below the normal standard, expected of the management. The question still is not the end, because the Court is of the opinion, that, the capacity, or the assessment of the muscle power, to give the quality of work, and to have the capacity to work, or to stand stamina of physical work, could only be assessed by the Surgeon, and the management equally enjoyed the privilege, to send every employee, whether fit or unfit, to have the satisfaction, for the quality of production, of his industry. There is nothing in the labour law, to restrict the power of the management. All that the employees could claim, if, being aggrieved against termination, to come in the Court, and challenge the termination as improper.

19. If Mr. Muhammad Taj has stated, that, he did not receive the letter of 8th January, 1983, which though was sent on the address, and there was word refusal", the Court is still inclined to take this view, that, if Mr. Aftab Qureshi directed the management, to submit him for medical check‑up, Mr. Muhammad Taj had to appear for medical opinion, whether his continuation in the job is in the interest of industrial working, whether he can do the work and what is the standard of his fitness, and there is no possibility of his left hand, to lose the muscle strength, being on hazardous job, of tyre pressing operator, but, Mr. Muhammad Taj left no alternative, for the management, who had to take this step of termination.

20. In the Court's opinion, there again remains defect, that, if, by this act of termination, the Court upholds the order, the requirements of justice are not met. If the Court allows Mr. Muhammad Taj, without examining by the Surgeon, as he had directed, there remains still the defect, that, his muscle capability is not re‑judged, in the interest of justice.

21. So, in the interest of justice, to both the sides, the Court is of the view, that, the management will give him one more chance, that, he will submit himself to the Surgeon, Mr. Aftab Qureshi, to determine his final capacity, to work, irrespective, he can do his job. The question is not the doing of duty, but the determination of his physical capacity, whether he can stand the work of tyre pressing operator. He will appear before Mr. Aftab Qureshi, in the month of February, after seeking interview.

22. Regarding victimization, there is nothing in the evidence, to show, either directly or from the circumstances, that, the management has victimized him. The simple question is, that he has been referred, due to the accidental defect, which is evident on the record. So, there is no point, in proceedings of sentiments, that, the management was inclined to crush the union activities. In the Court's opinion, the crushing of activities can only be assessed, when the C.B.A. has come forward, but , it is an individual opinion of a worker, which is not supported from the record.

23. In the result, the impugned order of termination passed ex parte, is set aside, with this direction, that, Mr. Muhammad Taj will appear before the Surgeon and get himself re‑examined, as to the capacity of his muscle power. Indeed, he had produced the certificate of Mr. Ali Muhammad Ansari, who is also great Surgeon, like Mr. Aftab. So, Mr. Aftab Qureshi is in better position, as the Surgeon, to assess his capability, in the context of medical opinion.

24. Application allowed to that extent. A. E.??? Orders accordingly.