1987 PLP 83 (PLC)

This petition under section 51 of the Industrial Relations Ordinance, 1969 has been filed by the applicant against the respondent's establishment praying therein that the respondents be directed to pay the sum of Rs.6,319.35 spent by the applicant on his hospitalization for treatment to his injury. The facts of the case as stated by the applicant in his above petition briefly are that he is a workman in the respondent's establishment and, o6 10‑9‑1982 he met with an accident which resulted in fracture of his left radius. He further submitted that he was taken to Baqai Hospital where after X‑Ray his hand was plastered but the applicant continued to feel severe and unbearable pain and he got himself examined by the Medical Officer of the respondents who referred him to Karachi Seventh Day Adventist Hospital for treatment where he was examined by Orthopaedic Surgeon Dr. Zubair Mirza, who advised operation and the applicant was admitted in Seventh Day Hospital for operation, on 17‑9‑1982 but he was discharged, on 18‑9‑1982 because Dr. Zubair Mirza was unable to perform operation due to infection in his hands, and he was directed to come on 21‑9‑1982 and again on 23‑9‑1982 when the hospital authorities showed inability to perform the operation. He further submitted that on 24‑9‑1982 the applicant was in great agony due to severe pain in his hand and contacted Dr. Zubair Mirza, who advised him to get himself admitted immediately and, therefore, the applicant got himself admitted in Charania Hospital and Dr. Zubair Mirza performed his operation on 25‑9‑1982. He further submitted that he remained in Charania Hospital from 24‑9‑1982 to 7‑10‑1982 and during this period a total sum of Rs.11,184.14 was spent by the applicant which asked for reimbursement from the respondents in addition to Rs.1,710.20 on medicines and treatment after the operation but the respondents made only a part payment of Rs.4,864.79 and have refused to pay the balance amount of Rs.6,319.35. He further submitted that the respondents in the case of one Mr. Ahmed Patel of Sales Department, paid a sum of Rs.23,998 as charges of Charania Hospital and on the same basis the applicant was also entitled to receive the entire money spent by him on his treatment in Charania Hospital. Hence the above application. The respondents in their reply statement objected to the maintainability of the application on the following grounds: ‑‑ (1) That the main application is not maintainable under the law and this Hon'ble Court has no jurisdiction to entertain it inasmuch as that the excess alleged claim of the alleged medical bills is not supported by any collectively bargained settlement or any award or decision of the arbitrator, Labour Court or the Tribunal. (2) That this Hon'ble Court has no jurisdiction under section 51 of the I.R.O.. 1969 to compute any amount under Standing Order 10‑B of the Standing Orders Ordinance, 1968 as no such claim has ever been determined or adjudicated by any competent Court of law prior to this application. (3) That the applicant has got no right guaranteed or secured under any settlement or award to invoke the jurisdiction of this Hon'ble Court for his unauthorized claim. (4) That the applicant has not come to this Hon'ble Court with clean hands and his application is liable to be dismissed by this Hon'ble Court with costs. On facts they admitted the employment of the applicant in their establishment and of having met with an accident on 10‑9‑1982. They further submitted that they had on their panel ten very reputed and well established Hospitals and clinics for treatment hospitalization of their employees and the respondents in this behalf printed a pamphlet titled as "Medical Scheme for Employees" and their dependents wherein the names of the above hospitals and clinics have been mentioned alongwith the terms and conditions for treatment /hospitalization and it has also been specifically mentioned that the respondents would not bear expenses of any employee who obtained treatment /hospitalization on a non‑penal hospital. They further submitted that the Seventh Day Adventist Hospital vide its letters, dated 23‑9‑1982 addressed to the Chief Medical Officer of the respondents informed that no Orthopaedic Surgeon was available in the Hospital and the applicant may be referred to any other hospital but this letter was withheld by the applicant and was not given to the Company's Chief Medical Officer, who would have arranged/ recommended the applicant for proper treatment/hospitalization in any other penal hospital instead of getting himself admitted in a non‑penal Hospital in a semi‑Private Ward whereas he was entitled to treatment in a general ward. They further submitted that the bill of Rs.11,184.14 submitted by the applicant during his hospitalization/ treatment in Charania Hospital were far in excess of the approved rates of panel hospital and could not be entertained by them and on the recommendation of Chief Medical Officer a sum of Rs.4,864.79 arrived at according to rates of penal hospital was paid to the applicant. They further submitted that the respondents as a matter of practice had always discouraged treatment of their employees in any non‑penal hospital and whenever they went to non‑panel hospital they paid/reimbursed the medical expenses only according to the panel rates and mentioned the names of twenty‑one employees who had obtained treatment in non‑panel hospital and had submitted higher claims but were paid less amount as made out according to the rates of panel hospital. As regards the case of Mr. Patel, they submitted that his case was of a different nature as he had suffered from a very severe injury to his spinal cord and his removal from Charania Hospital in that condition was not possible and, therefore, his admission in Charania Hospital was regularised and when the condition of Mr. Patel improved, he was immediately shifted to Ziauddin Hospital. They submitted that the applicant had no right or entitlement to claim the sum of Rs.6,319.35 and prayed that the application under section 51 of the I.R.O. be dismissed. The applicant examined himself in support of his case and filed his affidavit-in‑evidence wherein the contents of his application under section 51, I.R.O. were reproduced. He was duly cross‑examined by the learned Advocate for the respondents, and during the course of his cross‑examination he produced the Medical Scheme for the employees and their dependents introduced by the respondents as Exh.

3. On behalf of the respondents, Harold A. Meik. Senior Manager, Industrial Relations filed his affidavit‑in‑evidence and he was duly cross‑examined by the learned representative for the applicant. The parties did not adduce any other evidence. Written arguments were filed on behalf of both the parties. I have gone through the written arguments and also heard the oral arguments of the learned representative and the Advocate for the parties. I have also gone through the evidence on record. The respondents very vehemently objected to the maintainability of the application under section 51 of the I.R.O. on the ground that under section 51 of the I. R. O., a workman can approach the Labour Court for recovery of money due from an employer under a settlement, or under an award or decision of the Arbitrator, Labour Court or Tribunal. The learned Advocate for the respondents submitted that admittedly there was no award or decision of the Arbitrator, Labour Court or Tribunal under which money sought to be recovered by the A applicant was due and payable and the question to be examined in the case was whether the Medical Scheme introduced unilaterally by the respondents for the treatment of its employees and their dependents' could be deemed to be a settlement and submitted that in view of the definition of terms 'settlement' in section 2(xxiv) of the Industrial Relations Ordinance, 1969, the said Scheme could by no stretch of imagination be deemed to be a settlement. Section 2(xxiv) of the Industrial Relations Ordinance defines settlement as under: ‑ "(xxiv) 'Settlement' means a settlement arrived in the course of conciliation proceeding, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceeding, where such agreement is in writing, has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the Provincial Government, the conciliator and such other person as may be prescribed;" From the above definition it is clear that an agreement or contract will come within the definition of settlement only if it is arrived at in the course of conciliation proceedings or between the employer and his workman otherwise in the course of any conciliation proceedings provided that such agreement or contract is in writing and has been signed by the parties thereto and a copy thereof has been sent to the Provincial Government, the Conciliator or such other person as may be prescribed. From perusal of the Medical Scheme (Exh. 3‑A) it can neither be deemed to be an agreement arrived at between the employer and the C.B.A. Union during the conciliation proceedings nor can it be deemed to be agreement or contract between the respondents and their workmen as it is neither signed by the respondents nor the workmen and also is B not in the form of an agreement or contract. It is a unilaterally scheme introduced by the respondents as their own behest for providing medical facilities to their employees and their dependents. In the circumstances, I am satisfied that application under section 51 of the I.R.O. for recovery of the balance amount of Rs.6,319.35 spent by the applicant on his treatment /hospitalization is not an amount/ C money due and payable by the employer under a settlement or an award/decision of Arbitrator/ Labour Court or Tribunal and is not maintainable. It was argued on behalf of the applicant that if the application under section 51 of the I.R.O. was not found to be legally maintainable then the same could be treated as an application and section 25‑A of the I.R.O. However, the learned Advocate for the respondents submitted that under section 25‑A, 1.11.0% a workman can approach the Labour Court for redress in respect of violation of any rights guaranteed or secured to him by or under any law or award or settlement from the time being enforced and that the claim of Rs.6,319.35 made by the applicant was not in respect of any right guaranteed or secured to the applicant as above and, therefore, even an application under section 25‑A, I.R.O. would not be maintainable. The arguments advanced by the learned Advocate for the respondents merits consideration: Under section 25‑A, I.R.O. a workman has been given the right to approach D the Labour Court for redress of his grievance in respect of any right guaranteed or secured to him under any law, settlement or award for the time being enforced. The applicant has not been able to show that the prayer made by him in claiming the amount of Rs.6,319.35 is on the basis of any right guaranteed to him under any law or an award' or settlement for the time being enforced. Since the application under section 51, I.R.O. has been found to be not legally maintainable; I do not consider it necessary to discuss the factual aspect of the case. Accordingly, the application under section 51 of the Industrial Relations Ordinance, 1969 stands dismissed. A. E. Application dismissed.