1988 PLP 609 (PLC)

Muhammad Mukhtar petitioner, who is a Turner in the respondent Mills, by this petition made under section 25‑A of the Industrial Relations Ordinance, 1969, challenges respondent's act of withholding his medical bills amounting to Rs.4,392/05 and claims recovery of this amount alongwith costs of litigation.

2. The averments in the grievance petition are that the petitioner has been working in the respondent Mills for the last 15 years and, being entitled to free medical treatment of himself and of his father, on the strength of letter/docket No.771, dated 18‑7‑1984, issued by the respondent, he contacted Dr. Muhammad Saleem Sheikh of Alshifa Medical Centre, the authorised medical attendant of the respondent Mills, for medical check‑up and necessary treatment. The doctor referred him for specialist treatment to Prof. Ali Ajwad Jaffery who, besides prescribing medicines for him, also advised rest from 28‑7‑1984 to 12‑8‑1984. On 12‑8‑1984 Dr. Jaffery by a letter advised him (petitioner) to consult ENT Specialist and he, after verification of the reference by the company's doctor, accordingly consulted the ENT Specialist who, after examining him first recommended rest upto 21‑8‑1984 and then admitting him to Mian Muhammad Trust Hospital, Faisalabad, operated him. The petitioner was discharged from the hospital on 30‑8‑1984 but under the doctor's advice he first remained on rest first till 13‑9‑1984 and then from 14‑9‑1984 to 26‑9‑1984. Eventually, the petitioner reported for duty on 27‑9‑1984 and he submitted his medical bills for the reimbursement of the expenses incurred by him on his medical treatment, operation and consultation fee etc. amounting to Rs.2,388/15 to the Senior Manager (Production) of the respondent Mills who forwarded the same to the Personnel Officer and to the Chief Accountant for necessary action. Meanwhile, the petitioner's father, who was also entitled to free medical treatment, suddenly fell ill and was admitted to Faisal Hospital in a state of emergency on 13‑8‑1984 where he remained under treatment till 19‑8‑1984 but when the petitioner applied to the Management for the issue of docket for his treatment, it was withheld. Later, on 17‑10‑1984 he submitted medical bills amounting to Rs.2,203/90 for the recovery of medical expenses incurred on the treatment of his father but on 11‑11‑1984 the Personnel Manager of the respondent Mills verbally told him that his medical bills had been lost or misplaced and he (petitioner) on the same day submitted duplicate bills to the Management. Despite all this the claim of the petitioner was kept under consideration by the respondent and continued to be delayed with mala fide intention. Meanwhile he was ousted from service and after his reinstatement on 29‑10‑1984 he made another application to the respondent for payment of said amount of Rs.4,592/05 but it too remained unresponded like certain other similar applications made before and after this date. Eventually on 12‑12‑1985 the Manager (Personnel) of the respondent Mills maliciously adopting a clever device wrote a letter to the petitioner, falsely alleging therein that the medical bills had been returned to him for verification attestation by the Company's medical officer, despite the fact that the bill stood already duly verified by the Company's doctor and they had never been returned to him (petitioner). Anyhow, the petitioner alongwith his application, dated 24‑12‑1985, submitted duplicate bills of his father and on further malicious demand the duplicate detailed bills of Faisal Hospital concerning petitioner's father were again supplied to the Manager Personnel who ultimately vide his letter, dated 26/27‑1‑1986, expressed his inability to pay the bills on the flimsy and baseless grounds. Explaining the mala fides of his opponent, the petitioner alleged that he was thrice ousted from service and each time he was reinstated by the Courts, including the High Court, and he had to incur huge expenses on litigation in which he was involved. Hence this petition after service of grievance notice on 10‑3‑1986 whereafter the respondent paid to him a sum of Rs.200 on account of medical expenses and a sum of Rs.4,392/95 is still due from it.

3. The respondent Mills, in its written statement, raised ‑preliminary objections regarding non‑existence of secured or guaranteed right in favour of the petitioner, jurisdiction of this Court, limitation, estoppel and frivolity of the petition. On facts the respondent Mills admitted the petitioner being its employee but refuted his claim, except to the extent of Rs.200, already paid to him. It was alleged that the petitioner did not obtain proper authorisation /docket from the Management for expert treatment and without that authorisation he could not get treatment from any specialist. The entitlement of his father to be treatment at company's expenses was denied in to but the fact of the petitioner's repeated ousters from service was admitted. It was, however, asserted that he was always reinstated by the Court on technical grounds. The allegations of mala fides and victimisation were denied and in that context it was alleged that as a measure of goodwill the entire litigation was once compromised. The receipt of grievance notice and the payment of Rs.200 made to the petitioner on account of medical expenses were admitted.

4. The petitioner in support of his claim recorded his own statement as PW‑1 and also examined Dr. Muhammad Munir Zaffar of Faisal Hospital (PW‑2); Dr. Muhammad Saleem Sheikh (P.W.3) and Dr. Liaquat Ali Chattha E.N.T. Specialist, Faisalabad (P.W.4), while the respondent examined Muhammad Afzal, Manager Personnel (R.W.1) and Muhammad Ashraf, Office Clerk, (R.W‑2). Mr. Abdul Aziz, Personnel Manager of the respondent Mills, was examined as a Court witness.

5. In support of his preliminary objections regarding the non‑existence of rights secured or guaranteed to the petitioner under any law, award or settlement and resultant lack of jurisdiction of this Court, the learned counsel for the respondent Mills contends that workers like the petitioner, who cannot get free medical treatment under the Social Security Scheme, are treated at the expense of the respondent Mills by its various medical officers, known as company's doctors, and this facility extended by the respondent Mills does not fall within the ambit of any law, award or settlement, the proof of which was a condition precedent for him to bring his petition before this Court and since he has not been able to prove any such right, his petition is liable to be dismissed. According to the learned counsel, the provision of medical facility to the petitioner was only a practice and the same is not enforceable through Courts which lack jurisdiction. In this respect he quotes 1983 P L. C 1173, 1986 P L C 403 and 1986 P L C

644. With regard to the expenses incurred by the petitioner on the treatment ‑of his father, the learned counsel submits that he was not his dependent and his position was also the same as that of his son (petitioner) because he too had no secured or guaranteed rights.

6. In reply to the above arguments, the learned counsel for the petitioner submits that under Standing Order 2‑A of the Ordinance No.VI of 1968, every worker at the time of his appointment is given terms and conditions in writing and all these terms and conditions become his secured or guaranteed and same is the case of the petitioner. According to the learned counsel, his client being not covered by the ,Social Security Scheme, ‑ was given the right to be treated at company's expenses by the respondent Mills and the office orders contained in (Exh.R‑13) 'and (Exh.R‑14) conferred ‑rights on all the employees, including the petitioner, not covered under the aforesaid Scheme, to be treated at the expenses of the respondent Mills and as such*this right is enforceable through this Court having jurisdiction, being a right guaranteed under the law, especially when he has been discriminated against on the basis of mala fides emerging from old and reckless litigation between the parties. With regard to the entitlement of the petitioner's father to be treated at company's expenses, he, besides referring to para. 9 of the "pleadings, also refers to the statement of Muhammad Afzal, Personnel Officer (RW‑.1) and contends that this admission by itself is sufficient to prove his entitlement as such. In support of this contention he places reliance on P L D 1964 S C 21.

7. It may be observed at the outset that none of the authorities cited on behalf of either side has a direct bearing on the point under consideration. Admittedly there is no award or settlement referable in this case. The entire controverts that boils down to the only point necessitating determination is whether the petitioner and his father, being his dependent had a right guaranteed under law to be treated for their illness at the expense of the respondent Mills, or they were provided such treatment only by way of facility more as a matter of practice, grace or bounty by the Management not enforcible through this Court?

8. It may be mentioned here that the respondent's counsel has mainly tried to distinguish the case of petitioner's father from that of petitioner in the context of their getting free treatment at respondent's expense by contending that, unlike the petitioner, his father had no such entitlement even as a matter of grace or practice. Perhaps he has overlooked the statement of Mr. Muhammad Afzal, Manager Personnel (RW‑1) who has stated in the examination‑in‑chief that petitioner's father was entitled to the medical treatment but the petitioner did not follow the correct procedure of obtaining docke from the Management for his treatment in Faisal Hospital and for that reason the reimbursement of his father's medical bills was refuse Besides, in para. 9 of the written statement it was conceded that petitioner's father was at a previous occasion treated at respondents' expenses and a bill of Rs.1,600 reimbursed to the petitioner. This being so, the case of petitioner and his father in this regad is at par, the former being an employee and the latter being his dependent

9. As it appears from the written statement, the services of the petitioner were regularised w.e.f. 23‑6‑1983 and office order (Exh.R‑13) embodying policy decision of the Management regarding medical treatment of those employees not covered by the Social Security f Scheme was issued on 27‑4‑1981 and it was further modified by another office order (Ex.R‑14) issued on 24‑5‑1981. These office orders were applicable to ali employees drawing salaries more than Rs .1, 000 per, month and the petitioner also fell in this category This policy decision ' became an integral part of terms and conditions of the employment of all the employees, including the petitioner, who were drawing salary of more than Rs.1,000 per month and it became their right or entitlement duly protected under various provisions of the Standing Orders Ordinance, 1968. But assuming for the same of argument that the aforesaid policy decision did not confer any right on the petitioner guaranteed by any law and it remained only a matter of grace or grant from the respondent, even then it becomes enforceable through this Court if he, in this dispensation, is discriminated against on the basis of mala fides. Actions, which are immune from challenge become challengeable if they are taken in bad faith or with mala fide intention. Similarly, acts done or actions taken in violation of principles of natural justice become challengeable in the Courts, including Labour Court which in fact are more Courts of equity than ordinary civil Courts, despite the same having been done in the prescribed manner because good faith and principles of natural justice stand impliedly incorporated in every action, particularly an adverse action, to be taken against any person either on the basis of statutory provisions of law or otherwise. The principle that every wrong has a remedy also comes into play. These principles have in due course of time been enunciated and applied by the law Courts and roughly fall in the category of 'judge‑made law' or 'case law' as distinct from 'enacted law'. Therefore the word 'law' as used in section 25‑A (1) is to be interpreted in the wider sense so as to include 'judge‑made law' or 'case law'. In other words, the petitioner has a guaranteed or secured right under the law to be dealt with by his all powerful employer having State backing judiciously and impartially and in this case also at par with the co‑workers of his category and he can enforce this right.

10. Judged in this context the Management's act of withholding the sanction of the medical bills of petitioner pertaining to his treatment and that of his father appears to be mala fide and is challengeable before this Court. It is mala fide for various reasons which find reflection in the evidence of the parties, the main reason being the false plea of the Management that the bills were returned to the petitioner for verification on the same day i.e. 27‑9‑1984 when they were submitted by him. In view of protracted litigation between the parties, involving petitioner's dismissal from service thrice and his reinstatement each time through judicial forums, and the consequent mistrust generated by it, it is difficult to believe that Mr. Muhammad Afzal, Personnel Officer of the respondent Mills (RW‑1) would return the bills to the petitioner for verification just verbally and the latter would receive them back for that purpose without any order in writing from the management or without any acknowledgment. Subsequently on 17‑10‑1984 the petitioner submitted the medical bills of his father for reimbursement but no action was taken thereon by the Management and eventually on 12‑12‑1985, vide (Exh.P.10), and that too in response to a petitioner's reminder, asked the petitioner to resubmit l the bills after verification as the same had been returned to him long ago. The petitioner denied the returned receipt of the bills. However, he re‑submitted verified duplicate of his father's medical bills on 24‑12‑1985. The respondent ultimately on 26‑1‑1986 vide (Exh.P‑14) refused to sanction the same on the ground that there was difference in bills of petitioner's father; that he was being paid Rs.225 per month as medical allowance; and that he had not followed the prescribed procedure for obtaining docket for treatment. Thus the bills which were submitted for sanction in the last quarter of 1984 were eventually rejected on 26‑1‑1986 without any plausible explanation for delay despite reminders. This delay and ultimate rejection also speak volumes for the Management's mala fides, particularly of Muhammad Afzal, Personnel Manager (RW‑1) who dealt with the medical bills. It may be noted that this officer had once been on enquiry officer against the petitioner and he (petitioner) was dismissed on his report but was reinstated by the Labour Courts. Thus they were directly pitted against each other and were on inimical terms inter se. In this acrimonious background the Management and particularly Muhammad Afzal (RW‑1) first suppressed and delayed the reimbursement of petitioner's medical bills on various pretexts and eventually rejected the same on flimsy grounds (to be discussed hereafter) and in these circumstances the petitioner had actionable right to seek redress from this Court which has the jurisdiction to adjudicate upon his grievance. The first two preliminary objections of respondent's counsel, are, therefore, overruled.

11. On the point of limitation, learned counsel for the respondent contends that the petitioner had sent to the respondent as many as six grievance notices which are (Exh.R‑17) to (Exh.R‑22), the first being dated 27‑9‑1984 in which he claimed his billl of Rs.2,388.15 and if the period of limitation be counted from the date of this application which in substance was a notice, then his claim becomes one year 7 months and 26 days old as against the prescribed period of limitation of 51 months. Similarly, according to the learned counsel, the medical bill of petitioner's father was submitted later and the petitioner claimed its reimbursement. by application, dated 17‑10‑1984 (Exh. R‑18) and this too was time‑barred by many months. He argued that law provides only one grievance notice and if there are more than one, only the first one is to be taken into consideration. In this respect he quotes 1978 P L C 350, 1983 P L C 70'l, 1983 P L C

458. He places reliance on 1986 P L C 234 in support of his contention that no particular form is prescribed for grievance notice and even any appeal or representation to the employer would be considered to be a grievance notice.

12. On the contrary, it is argued on behalf of the petitioner that on 27‑9‑1984 the petitioner submitted his medical bills and made a request in the application for their payment, while on 17‑10‑1984 he submitted the medical bills of his father and by the accompanying application made a request for the reimbursement of those bills and these applications cannot be considered to be grievance notice, Likewise, according to the learned counsel, the subsequent applications made by the petitioner were nothing more than simple reminders to his employer for the payment of his bills and they too cannot be considered as grievance notices. He submits that the respondent did not take any decision on the pending bills or a long time and meanwhile entering into correspondence with the petitioner by a letter, dated 2‑1‑1986 (Exh.P‑12) asked him to produce duplicate bills of Faisal Hospital and when he supplied the duplicate bills of his father vide (Exh.P‑13) and (Exh.R‑22) on 19‑1‑1986, it is on this application that the respondent took final decision on his pending bills vide (Exh.P‑14) dated 26‑1‑1986 and in fact this order, which declined reimbursement, gave the petitioner cause of action to come to this Court and he served grievance notice (Exh.P.15) on 10‑3‑1986 and after the receipt of this notice the respondent made part payment of Rs.200 to the petitioner on 26‑4‑1986.

13. There is no quarrel with the proposition that where a worker serves more than one grievance notices on his employer in any form the first notice so served gives start to the limitation for the purpose of section 25‑A of the Industrial Relations Ordinance, 1969, but in the instant case the respondent cannot press into service that principle because by its own defaulting and mala fide conduct it deferred the commencement of limitation. Sometimes the Management due to inimical background emanating from protracted litigation between the parties told the petitioner that his medical bills had been lost or mislaid and he should submit the duplicates and sometimes it took up the position that the bills had been returned to the petitioner for verification and he should resubmit the sane and eventually accepting a portion of claim genuine made him part payment of Rs.200. Thus, they went on playing hide and seek with him and ultimately rejected his claim on 26‑1‑1986 in clear terms and from this date the cause of action accrued to "the petitioner and he served grievance notice on the respondent on 10‑3‑1986 which was within time?? this connection 1981 P L C 293 which interprets proviso to subsection (4) of section 25‑A of 1969 Ordinance, can be quoted with some advantage. Other applications sent to the respondent demanding reimbursement of medical charges were merely reminders and not grievance notices. Besides, in view of the proved mala fides of the respondent, the limitation did not run against the petitioner.

14. On the question of estopple, learned counsel for the respondent submits that the petitioner vide paragraph 9 of his grievance petition admittedly received Rs.1,600 on account of his father's bills pertaining to the month of October, 1984 but he kept silent regarding his bills for the months of July and August, 1984. Similarly, he received Rs.200 on account of his own bills without any protest and he is estopped by his conduct to claim the remaining bills of his father as also of his own, the learned counsel adds.

15. The petitioner, according to his counsel, continued to press his claim by sending repeated reminders on different occasions and he did not forego his claim, nor he is estopped by his conduct. He submits that the receipt of part payment of entitlement did not stoop the petitioner from making demand for the payment of remaining amount of his bills. He cites 1976 P L C 901 in support of this argument.

16. I am inclined. to agree with the views of the petitioner's counsel. The receipt of part payment of his own bills or a bill of his father F relating to a different period, in view of the said authority, did not operate as estoppel and he can still claim his lawful dues which were not paid to him. This objection is also overruled.

17. Now on merits. The claim of the petitioners is based on the policy decision of the respondent as contained in its office order, dated 27‑4‑1981 (Exh.R‑13) as modified subsequently vide office order, dated 24‑5‑1981 (Exh.R‑14) which entitled the employees drawing salary more than Rs.1,000 p.m. to avail of the facility of hospitalisation in special cases of emergency i.e. operation, accident and prolonged or serious illness on the recommendation of the authorised medical officer of A1‑Faisal Hospital and some other medical centres at Faisalabad. These facilities were also available to the dependants of such employee without affecting their existing medical allowance. They were also allowed sick leave subject to title for the period of hospitalisation on the recommendation of the authorised medical officer. Subsequently, they were also allowed the facility of laboratory tests etc. but it was made necessary for them to obtain dockets from the Management in order to get medical treatment from the approved hospitals. The perusal of appointment letter of medical officer of Faisal Hospital, Faisalabad, dated 2‑1‑1980 (Exh.R‑10), inter alia, shows that besides treating the patients himself he was also competent to refer some case for treatment by a specialist whenever the necessity arose. By a similar appointment letter, dated 30‑6‑1983 (Exh.R‑7) M/s. Alshifa Medical Centre, Kotwali Road, Faisalabad, was also authorised to tread the respondent's employees on certain terms and conditions.

18. The main objection of the learned counsel for the respondent is that the petitioner by his application dated 17‑7‑1984 (Exh. R‑15) obtained docket No.771, dated 18‑7‑1984 (Exh.R‑9) from the Management by alleging kidney pain but subsequently without informing the respondent or getting new docket he, in collusion with the company's doctor, went to Dr. Ali Jawad Jaffery, Medical Specialist for treatment who further referred him to Dr.Liaquat Ali Chattha, E.N.T. Specialist for some operation and in these circumstances he is not entitled to the reimbursement of medical expenses allegedly incurred by him on specialist's treatment because his subsequent treatment by specialists was without proper authorisation by the respondent. With regard to the claim regarding the medical bills of the petitioner's father, the learned counsel is of the view that obtaining a docket for his hospitalisation was a condition precedent but the petitioner again in collusion with the company's doctor got his father admitted to A1‑Faisal Hpspital and subsequently requested for a docket which was lawfully refused to him and as such the expenses incurred so unauthorisedly by him could not be reimbursed to him.

19. There seems to be no substance in the above contentions of the learned counsel. From the appointment letters of authorised medical officers referred to above, it is obvious that they were competent to refer suitable cases for specialist treatment without the intervention of the Management and if doctor Muhammad Saleem Sheikh (PW‑3) in his capacity as authorised medical officer referred the petitioner to Prof. Dr. Ali Jawad Jaffery for the treatment of abdominal pain, which could also include kidney pain, there was nothing unusual or irregular in it. It is Prof. Jaffery who detected some E.N.T. ailment in the petitioner and referred him to E.N.T. specialist for treatment. The petitioner went back to Dr. Muhammad Saleem Sheikh (PW‑3) and with his approval went to Dr. Liaquat Ali Chattha, E.N.T. specialist (PW‑4) who, after admitting him to Mian Muhammad Trust Hospital, Faisalabad, conducted operation on him and gave him treatment for a number of days, Thus it will be seen that for specialist treatment, the petitioner did not require any fresh authorisation or docket from the management of the respondent and there could be no defect on that account in his claim for the reimbursement of medical charges. It may be mentioned here that on the recommendation of these doctors, the respondent granted the petitioner sick leave for all the period during which he remained under treatment of various doctors and for which he claims reimbursement. This being so, there was little justification for the respondent to withhold the sanction of medical charges of the petitioner. There is no force in the contention of the respondent's counsel that the petitioner had purchased medicines from some chemist other than those specified by the respondent because, as it appears from the notice, dated 29‑10‑1984 (Exh.R‑6), the respondent had specified two medical stores from a date subsequent to the period of ailment and treatment of the petitioner and his father and he was at liberty to purchase the medicines from any store he liked.

20. As regards treatment of petitioner's father, as per statement of Dr. Muhammad Munir Zaffar of Faisal Hospital (PW‑2), he was admitted to the hospital on 13‑8‑1984 as an emergency patient and he remained under treatment till 19‑8‑1984. He explained the procedure of obtaining a docket and admitting respondent's employees to the hospital for treatment. In that context he stated that if some emergency patient needed hospitalisation he could be admitted and given treatment without a docket from the Management which could be obtained later but if he could not produce the docket during the course of this hospitalisation then he was to pay the entire expenses from his own pocket. This statement as also the contents of office order, dated 24‑5‑1981 (Exh. R‑14) show that prior obtaining of docket by the employee for hospitalisation in company's approved hospitals was not a condition precedent, nor it could possibly be in every case because .l on a holiday or at odd hours such dockets could not be issued or obtained nor in an emergency or serious illness the employee could run about for obtaining docket instead of going or being taker to the hospital for treatment. Therefore, the claim of the petitioner for the reimbursement of medical expenses incurred by him on the treatment of his father could not be' refused by the respondent on the ground that he underwent treatment without obtaining prior docket from the respondent"

21. For various reasons stated above, the grievance petition is accepted and the respondent is directed to immediately pay to the petitioner a sum of Rs.4,392.05 on account of reimbursement of medical charges. He is also entitled to receive his lawyer's fee as costs of litigation but this amount shall not be paid to him from company's fund, rather, it shall be paid by or recoverable from those K functionaries of the respondent who, by their intransigent attitude and mala fide conduct emanating from past litigation, forced the petitioner to resort to this litigation for the enforcement of his lawful claim. Those functionaries are Mr. Muhammad Afzal (RW‑1) formerly Personnel Officer of the respondent Mills who is now Manager Personnel of Oil and Vegetable Ghee Mills, Sheikhupura and its Managing Director. The former spear‑headed the mala fide action against the petitioner by first delaying the disposal of petitioner's claim on various pretexts and then ultimately rejecting it by the impugned order, and the latter being overall incharge of the respondent Mills had either been approving the illegal action of the Personnel Officer, expressly or tacitly by connivance or otherwise negligently caused to be done by the Personnel Officer due to lack of proper supervision. Both of them shall, therefore, share the costs equally and pay the same from their own pockets. For the determination of cost the petitioner's lawyer shall, within three days, file a certificate of fee that he charged from the petitioner for conducting this case and a note shall be entered to that effect below this judgment to be read as a part thereof. M.Y.H./351/Lb.P ??????????????????????????????????????????? Petition allowed.