1987 PLP 304 (PLC)

5. In the first place the certificate of Dr. Ali Muhammad Ansari who is also eminent Surgeon confirms that he is not at all absolutely fit but recovered somewhat considerably by gaining power of muscle strength and the certificate further qualifies that he still can do work. If the language of the certificate is examined the Court is of the opinion that this is not a clear evidence of the fitness. It may be the certificate to work but not is certificate of absolute physical fitness which Court is to examine in the circumstances, the nature of the operation to work he is assigned to, the employer's interest to keep the fitness on the person to the job avoiding the risk and dangers.

6. With this certificate there is also certificate of Dr. Aftab Ahmed Qureshi what he has said in the evidence. Dr. Aftab has stated that "Muhammad Taj was examined on 18‑12‑1984. Certificate was issued, dated 4‑1‑1986." He refers to his earlier statement before the Court R.W.2.

7. In the cross‑examination disclosed to be defence he has also stated that he had issued the certificate on 20‑3‑1983 in respect of the same man R.W.4. He issued another certificate, dated 26‑7‑1983 R.W.6 when he gives the opinion as follows: ‑ With the passage of time some improvement was made from the time he issued certificate of injury. I have been examining him, improvement can occur to a definite conclusion which may be full or partial. I see letter, dated 17‑2‑1985.1 produce it R.W.7. I do not know whether I received the reply. I do not remember that it was sent by post. I do not remember when I examined the applicant on 18‑2‑1985 regarding the actual date but certificate is on the record. At the time of second examination I had not taken the X‑ray. The witness again clarifies when the second time X‑ray was taken but he is sure that X‑ray was taken first time. The conclusion is based on my clinical equipment and experience. I think there may be improvement of percentage. There is possibility of improvement.

8. When the Court asked for clarification from the Medical Surgeon because he was appearing second time on the Court's directions to determine the question resolved he again was of the same opinion when question was asked regarding fitness. He expressed that there may be improvement if fresh examination is required.

9. His previous statement is also referred where also he has given the opinion that there may be some improvement.

10. What this Court gathers from the medical opinion of a Surgeon Dr. Aftab Ahmed Qureshi who has medical knowledge of the human body, his opinion has not been challenged by producing another Surgeon. This fact has become evident that Dr. Aftab Ahmed Qureshi himself has not become sure as to the final opinion whether he is absolutely unfit in the muscle power for he says that this possibility of improvement and also he needs re‑examination.

11. Muhammad Taj has appeared twice before Dr. Aftab Ahmed Qureshi, still the final decision has not been taken as to the absolute unfitness, whether his employment is further desirable and what further steps be taken in this regard of re‑assessment or it will be futile exercise of judgment of muscle power.

12. However, in view of the contentions raised by the counsels the Court is seeking further assistance from the factual aspect, the general working of the company whether other workers also with such disabilities work on the machines or his termination is the only exception as it is contended that he is a trade unionist.

13. The evidence in the case has also been heavily contested by producing the witnesses from both the sides. The Court refers prominently the extracts which has relevancy. Muhammad Taj has admitted in the Court that he was previously cross‑examined in the case and is confronted with the copy of the evidence Exh.3/A. At the same time he has made the statement in the Court before me that he was not a witness nor he made statement before the Court. The copy of this Exh.3/A produced o the earlier case underlines this relevant paragraph where also Muhammad Taj has admitted that the earlier medical certificate was not challenged before the Medical Board but he has contended that he made protest that yet the company insisted on his re‑examination.

14. Muhammad Taj has also admitted that at the time of termination of his employment he was not the office‑bearer of the union.

15. Applicant has also referred the statement of Imtiaz Ahmad in case of Palm .Jan in case No. 136 of 1984 also pending before this Court. Imtiaz Ahmad has stated that he asked Palm Jan and other workers to work overtime. Palm Jan did not do overtime. He refused to do so and on the contrary instigated workers not to do overtime work. In the cross‑examination referred in the same deposition he has admitted that he had not stated the name of any worker in any report or in the inquiry that Palm Jan told other workers not to work. In the same evidence when the witness was recalled, he admitted that no worker came to him or said to him in the enquiry proceedings that he was told by Palm Jan not to work. The witness who claims to be an enquiry officer in the concerned case has also further admitted that it is not correct that production was not affected. In the cross‑examination to Ch. Rasheed Ahmad he was confronted with the overtime slip for the month of September, October, November and December 1983 and the reply was that this work was given on humanitarian grounds. He was further confronted with the time cards to show that he had 24 hours overtime in addition to his normal duty. The witness has also admitted that applicant was required to be present for 32 hours overtime but it was on humanitarian grounds. Reference is made to Exhs.R/9 to R/12 regarding the progress of the production of September. The witness also stated that applicant was the office‑bearer of the union as an organisor. There was no written report against him till December 1983. It is correct that he resigned from union on 3‑1‑1984. It is correct that from March 1983 to 28th October the applicant was duly certified to be retained in job temporarily. The witness has also stated that it is not correct that they have produced the report to show the progress report of the applicant. The witness has also not admitted the position that between period from May 1983 to 19‑1‑1984 the applicant had given more production than any other operator. The witness has also denied that he was victimized due to trade union activities.

16. These extracts of they evidence given of the Enquiry Officer are in respect of the applicant Muhammad Taj of which. Mr. Rasheed Ahmad brought the assessment report impeaching the evidence of the Enquiry Officer.

17. The next witness is Shah Zarin who is the General Secretary of C. B. A. According to his version he was told by Taj Muhammad that Dr. Aftab Ahmad is not prepared to conduct medical check up and shown inability. In the cross‑examination confronted he has admitted this position that there were clear directions that applicant should appear before the Surgeon in the month of February 1985. The witness also further refers that on 16‑2‑1985 Mr. Taj went to get interview, the doctor refused to examine him.

18. Third witness is Muhammad Ali Sheikh. He is the Production Superintendent in the respondent's establishment. He stated that he was Foreman, in the year 1983. But at the time when the evidence was being recorded he has shown that he had no knowledge about the case, so far he recollects, he was Foreman at that time. Muhammad Raj was General Foreman. He was working with him in the month of May, June 1983. This was a work of curing operator.

19. The witness then re‑collects with this observation in the evidence as follows: This is a heavy complex not only the strong person but weak person can also work on this plant. He has denied the specific suggestion of management counsel that this evidence is being given because of his malice due to termination of his employment which he denied or strongly saying that he has given the correct answer.

20. The last evidence is of Mr. Lakhani, Abdul Hameed, who is central figure in the case as a Personnel Officer, dealing with the administration matters and knowing the facts of the case. He has been cross‑examined in details.

21. The Court wants to refer certain evidence of Mr. Lakhani and to see the fairness of the management which Court has prominently recorded when the question was suggested by the counsel in the form of suggestion. It is not a fact that we have not produced the record to conceal the facts. His record was brilliant and excellent. After the accident he did not work. Badshah Khan had retired him from his job. I do not know whether he retired him from January 1986. Muhammad Hussain had injury on 4 fingers. I do not know whether his 4 fingers were cut from the root. I do not know whether 2 fingers of the right hand were also cut from the root. I do not know whether right finger of Refat Mahmood has been cut during working hours. It is not a fact that we have not produced the record to conceal the facts.

22. It is at this stage, the Court issued the directions to examine this factual aspect in the proper prospective for the appreciation of evidence and directed Mr. Lakhani to produce the record. And the Court has made the remark that there has been no compliance of the directions of the Court and to explain why the record was not produced. Thereafter Mr. Lakhani produced two documents referring to the injury report of Muhammad Hussain in Ali Rehman's case Exh.R/3 and R/4. The admissibility of these documents was challenged by Ch. Rasheed Ahmed. The Court had also directed to produce those persons whose fingers were cut for the Court to have idea whether those disabled persons also work in the same employment. This is also the desire of Ch. Rasheed Ahmad. When Mr. Lakhani did not produce these witnesses and showed inability to produce those persons without summons the Court further desired to issue summons to confront the management and to have the case, examined in the proper perspective. The Court has put the note in the evidence that applicant's counsel does not want to call those persons now. The matter ended there.

23. The evidence of last witness Dr. Aftab Ahmad whose evidence has already been examined, I refer prominently in the earlier part of the judgment.

24. Final witness is Muhammad Raj. He claims that he was the General Foreman in January 1984 before injury sustained by Muhammad Taj was Press Operator in Tyre Curing Department. The work of Tyre Pressing Operator is of heavy nature. The worker should be 100% physically and mentally fit to do the job. If worker is not 100% fit, he cannot perform the job. Tyre is to be left upto the waist height. It is to be properly placed in the Press. Tyre of truck weighs 30 to 45 kilogram. Both hands are required to do the work of Tyre Pressing Operator. If worker is not physically fit there is possibility of serious injury. He has given his definite opinion that Muhammad Taj is not physically fit person. Raj has also further explained in the cross- examination that he is General Foreman. I n this type of hazardous work, there is not a single person with the disabled finger. If there are workers working in the company, they are helpers. The witness is also of this view that there was proper production in 1984 during disability of applicant. He however, admits that he was doing overtime work in 1983. He has denied the suggestion that he can lift the tyre of the required standard upto the required height.

25. This is all the crux of the evidence on those relevant points of consideration for the Court to assist whether Muhammad Taj can work on the plant despite the fact that Dr. Aftab Ahmad has suggested that there can be improvement.

26. Mr. Ch. Rasheed Ahmad and Mahmood Ghani counsels from both the sides have very strongly put up their cases giving their different points of view firstly, Mahmood Ghani's contention is that production is immaterial. It is the fitness which counts on the heavy complex of machinery. He relies on the evidence of General Foreman. On the other hand Ch. Rasheed Ahmed has very strongly contested the case even to proceed further that the opinion of Dr. Aftab Ahmed should have been referred to the Medical Board. He has relied on those productions, those overtime working of the applicant Muhammad Taj who can withstand the exertion above all his record admitted by the management's officials is highly excellent, and therefore Ch. Rasheed Ahmed expected the Court to examine on this question also that there was background of victimisation.

27. After going through the respective versions of Ch. Rasheed Ahmad and Mahmood Ghani this is to point out that this question also came before this Court for the constitution of the Medical Board but the Court rejected this suggestion and passed the detailed order. The relevant extract of para 14 is reproduced: After examining the contentions of Ch. Rasheed Ahmad and Farooq Ghani appearing for General Tyre & Rubber Company the Court has gone through this legal aspect whether the Medical Board be constituted for the re‑assessment of muscle capability merely because applicant Muhammad Taj has developed the impression against Eminent Surgeon by taking presumption if the Court proceeds with the further matter to the Medical Board in this manner, it will undermine the confidence and also Court may again proceed to take the exercise of referring the matter to the Surgeon when the order of the Court is expressly clear that the matter was judged on the merits of the parties' contentions the Court was content with the opinion of the Medical Surgeon and directed that Medical Surgeon should re‑examine him to achieve the finality of his medical observation.

28. In view of this observation the evidence of Dr. Aftab Ahmed is highly respected as a Surgeon with medical science and to raise the presumption as contended by Muhammad Taj that he refused to examine him is based on no ground when the Surgeon insisted for the production of the copy of the order of the Court to examine him which fact has come on the record.

29. But as the Court has observed that Dr. Aftab Ahmad is still not sure as to his final opinion when he had suggested that there is possibility of improvement. In view of the position, therefore, the record of Muhammad Taj is further examined, it is found, that his entire career in the employment has remained par excellent. No production was affected admitted by the witness during his working. This is also an admitted position that he was doing the job of overtime. There is no doubt about it that the entire evidence if examined shows that his work was beyond any reproach. The only consideration to which Mahmood Ghani has taken an exception that the work of Tyre Pressing Operator stated by the General Foreman the disabled person cannot be asked to work involving the risk.

30. This aspect, the Court has examined in view of certain aspects of the evidence where Muhammad Ali Shaikh the Production Superintendent states that strong person can work at the same time this heavy complex, the plant can also be handled if a weak person is employed. His evidence stands in contradistinction to the evidence of General Foreman. Obviously the General Foreman is more qualified than Production Departments Officials like Muhammad Ali Shaikh. This has also come in the evidence prominently that disabled persons also work not on the plant directly but as helpers. In other words there are persons with such disabilities who work in the company in the complex. The Court would have desired to see the persons with disabled hands and to find out their actual movement of the human fingers operating this hazardous job. Unfortunately none of the party desired the Court to see this aspect. No genuine attempt was made to bring this aspect of evidence also to meet the requirement of justice. Notwithstanding that, if this fact is admitted that disabled persons work but as helpers the question of fitness is the only consideration before the Court.

31. Indeed the view taken by Mr. Mahmood Ghani is correct that employer cannot be compelled to get employee not medically examined as to the fitness, to work on the machines. This is prerogative of the employer for he spends capital on the establishment of industry to give A the quality of performance. At the same time it is also the right of the labour as to the condition of service if followed in accordance with law: and his rights are guaranteed by the labour law. Standing Order 12 further provides that the employment of permanent workman can be terminated for any reason other than misconduct and only the requirement is that one months' notice shall be given. In other words there is no clog on the powers of the employer for the imposition of the condition that if he is unwilling to keep an employee of which he finds the disability and not of any malicious consideration for some other extraneous purpose, in the Courts' view the employer has the right. Fitness is subject to the medical observation and the medical observati6n has B proved beyond any doubt that there is improvement possibility, still at the same time the fitness of the workman is further privilege of the employer to find whether he can involve any risk if the workman despite the production unaffected can involve the risk of the high danger resulting in the financial hardship rather than to take the safer course of dispensing with the employment of the person subject to the satisfaction of the monetary compensation as required in Standing Order

12. The question, therefore, is whether this termination was actuated by malice for Muhammad Taj who was the office‑bearer of the union or he had resigned and at the relevant time he had taken no interest in the activities of the union. In the previous order the Court has taken cleat` view of the fact that no victimization is supported from the record. The individual opinion of the worker cannot be taken as r the evidence of victimization. If C. B. A. has not represented this is allegation of the workmen. What the Court has examined from the evidence that employer has not concealed his record of excellence, but is handicapped due to his disability, for which he cannot take this adventure. Similarly after the Court, had issued the directions to the worker to subject himself to the medical opinion of Dr. Aftab Ahmed he was imposing wish of his own choice. The evidential certificate of Dr. Ali Muhammad Ansari has also not given him the clear certificate of absolute fitness or to express that he could stand the hazardous job, except with this limited opinion that there is improvement, he can still work. The opinion of the Surgeons can only be accepted to this extent but to the extent of absolute fitness whether he is capable to work, the Court is attaching the importance to the evidence of the General Foreman who is qualified expert on the machines and himself an employee like Mr. Muhammad Taj. The Court has found no evidence of the nature that General Foreman can easily be bribed by the management, such cannot be taken as the inference at least by the Court from the general appearance of the Foreman which Court has examined.

32. Finally the question is should he loose the job which he wants to do in the interest of his livelihood as the earning member of the family. He has two choices that if on the basis of equity other workmen with disability work as helpers in the job entrusted to them as the General Foreman has said, the Court is also of the opinion that either he should accept that choice and wait for the full recovery to get the authenticated certificate from the General Foreman or he should be content with the employer's order of termination subject to this compensation as provided in section 12 if Muhammad Taj can exercise this option the management will keep him in that position and the D impugned termination order is set aside. If Muhammad Taj does not agree to that employment the termination shall stand completed, Application is allowed only to that extent. He should intimate the decision to the management within 7 days pr to file appeal against the order of this Court. Both parties can file appeal. However, the Court wants further to add for both parties to know that Labour Court is of the view that by virtue of jurisdiction exercised under section 25‑A subsection 4, if the Labour Court finds that this will meet the ends of justice the order is passed in these circumstances, parties will avoid litigation to maintain harmonious relationship in the better working of industry.

33. Reference has also been made to the quoted judicial precedents by Mr. Mahmood Ghani, 1974 P L C 290, 1974 P L C 60, 1974 P L C 63, 1975 P L C 876, Application No. 73/Karachi of 1985, P L D 1973 SC 160; 1980 P L C 610; 1980 P L C 269; 1981 P L C 589, 1965 LL J 2, 1965 LL J 335, 1983 P L C 852.

34. All these decisions have been referred, of which the extracts re produced by Mr. Mahmood Ghani for the Court's indulgence. In fact the entire decisions should have been produced for the Court to find out whether the facts were distinguishable.

35. Mr. Ch. Rasheed Ahmed has referred no decision and referred mainly to the factual aspect.

36. Regarding confusion of the wages to be drawn if Muhammad Taj accepts the choice of working as helper for three months he should be given the same emoluments till the certificate of the General Foreman with any of the alternatives as discussed in the judgment. M. Y. H. /844/Lb Order accordingly.