1993 PLP 323 (PLC)

AHMED YAR KHAN, J.‑‑‑We propose to dispose of the above mentioned petition by one and the same judgment, as the parties are same and a common question of law and facts are involved. Briefly stated the facts are that petitioner Muhammad Ayub was a permanent workman, employed as a Pump Operator in the respondent Industry M/s. Zulfiqar Industries Ltd. On 29‑6‑1985 while he was on duty, petitioner Muhammad Ayub met with an accident involving elbow of his right hand. Thereafter the petitioner received medical treatment including operation of his elbow for a long time at the expense of his employer. In the meantime he was also examined by various Medical Boards and various doctors on different dates. Majority of the medical certificates indicate that petitioner Muhammad Ayub suffered from 50% permanent disability. On the basis of those certificates, the respondent‑Industry held that the petitioner was unfit to perform his normal duties, and his services were terminated by a letter dated 24‑9‑1986. Being dissatisfied with the termination order, the petitioner filed grievance petition under section 25‑A of the Industrial Relations Ordinance, 1979, before the learned Labour Court which was dismissed. The petitioner preferred Appeal No. KAR‑378 of 1989 .before the learned Sindh Labour Appellate Tribunal, who vide impugned order dated 21-3‑1990, allowed the appeal and set aside the order of the learned Lower Court. The respondent Industry was directed to reinstate the petitioner in service and to pay him 50% of the back benefits. Being aggrieved by the aforesaid impugned order petitioner Muhammad Ayub filed C.P. No. D‑389 of 1990 claiming the grant of 100% back benefits. On the other hand the employer i.e. M/s. Zulfiqar Industries Ltd., was also aggrieved by the impugned order of the learned Labour Appellate Tribunal and filed C.P. No. D‑335 of 1990 praying for quashment of the impugned order. We have heard Muhammad Ayub, petitioner in person as also Mr. S.M. Yaqoob, learned counsel for M/s. Zulfiqar Industries Limited. The petitioner Muhammad Ayub has been heard by us in person. He narrated pathetic story as to how the management maneuvered to get rid of him by getting him examined by various doctors and Medical Boards. He demonstrated before us that his right elbow was perfectly all right and there was no hindrance in the movement of right arm. According to the petitioner the elbow joint of his right hand got quite perfect after medical treatment, still the respondent‑Industry terminated his services without giving him a chance to be heard in person. On ‑the other hand Mr. S.M. Yaqoob, learned counsel for the respondent‑Industry, tried to establish that it was a case of termination simpliciter. He pointed out that the post of Pump Operator had been abolished and that at present no such post existed. In any case, Mr. Yaqoob submitted, since the petitioner was unable to discharge the duties of Pump Operator because of the aforesaid injury, hence the management was fully justified to terminate his services. We are not convinced with the submissions of Mr. Muhammad Yaqoob. We have gone through the written statement filed by the respondent Industry in the Labour Court. We find that the management did not take the plea in the aforesaid written statement that the post of Pump Operator had been abolished. Further more the disability, if any, was to the extent of 50% only, and that also in respect of right hand only. The petitioner urged before us that he was quite competent to operate the pump by his left hand. There is nothing on record to show that the pump could not be operated by left hand. Under the circumstances, it was incumbent upon the management to hold enquiry about incapability of the petitioner vis‑a‑vis the operation of the pump. Natural justice demanded that the petitioner should have been given an opportunity of personal hearing. We are also conscious of the fact that it was not a case of total disability, and the petitioner could have been given light duty. Even otherwise there is nothing on record to indicate that the operation of the pump was a job entailing heavy duty. Under the circumstances we find ourselves in agreement with the reasoning given by the learned Labour Appellate Tribunal that the services of the petitioner was not to be terminated without enquiry and without giving him a chance of personal hearing. We are also of the view that the reinstatement of~ the petitioner should have been with full back benefits. In this view of the matter, we allow. Petition No. D‑389 of 1990 and modify the impugned order to the extent that the petitioner is entitled to full back benefits. C.P. No. D‑335 of 1990 stands dismissed. Parties are left to bear their own costs in both the petitions. H.B.T./Z‑197/K Order accordingly.