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Appeal No, KAR‑165 o[' 1981, decided on 19th May, 1984,

‑‑ S. 1 (4) & S. O. 12 (3)‑Hospital of company registered under Companies Act, 1936‑AdmtffeMy note‑A‑charitable institution . Though not an "industry" yet covered by definition of "commercial establishment"‑Not ousted from ambit of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 Workman of such hospital seeking remedy against wrongful termination of service contrary to S. O. 12‑‑Entitled to file grievance petition before Labour Court under S. 25‑A of Industrial Relations Ordinance notwithstanding non‑application of Industrial Relations Ordinance, 1969 to such hospital‑Grievance petition‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A.

Dr. Burjor Anklesaria Nursing Home v. Zafar 1qbal N L R 1980 TD‑273; Liaquat National Hospital v. Government of Sind P L D 1977 Kar. 843 and Marie Adelaide Leprosy Centre Employees Union v. Registrar, Trade Unions P L D 1977 Kar. 210 and Muhammad Yameen v. Pakistan Security Printing Corporation 1980 P L C 802 rel.

Medical Educational Uplift Fund Association of Seventh Day Adventists in Pakistan v. Vth Sind Labour Court P L D 1978 Kar. 536 and Managing Director, Pakistan Television Corporation v. Ghulam Mohd. Sheikh P L J 1979 (Tr Cs. 255 distinguished.

S. 2 (i) [as amended by West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Act, 1973 (XIII of 1973)] ‑ "Workman" ‑ Telephone Operator operating PBX manually operated‑Held': A workman.

Johnson & Johnson (Pak.) Ltd. v. Zubair Ahmad 1980 P L C 622 rel.

‑‑‑‑ S. 25‑A‑Scope‑Back benefits‑Grant of, on re‑instatement‑ Within competence of Labour Court in appropriate case‑Termina of service purportedly due to retrenchment‑Retrenchment not bona fide and motivated by other considerations‑No grounds suggested disentitling petitioner to back benefits‑Back benefits on re‑instatement, in circumstances, awarded.

Badrudduja for Appellant.

Muhammad Rafiq Malik for Respondent.

Date of hearing : 19th May, 1981.

ORDBR

The services of the respondent were terminated by the appellant company with immediate effect vide letter, dated 12th March, 1980. The respondent challenged the orders of termination of his services before the learned Ist Labour Court, from where the case transferred to the learned Vth Labour Court, Tile latter Court, by its decision, dated 9th Match, 1981, has set aside the orders of termination of services of the respondent and directed his re‑instatement in service with full back benefits. Aggrieved by this decision, the appellant company has come in appeal to this Tribunal.

2. I have heard Mr. Badrudduja, who appeared for the appellant company and Mr. Muhammad Rafiq Malik, who represented the respon dent workman. Mr. Badrudduja has assailed the impugned decision of the learned Labour Court on the following grounds

(1) that the Standing Orders are not applicable to hospitals including the hospital establishment of the appellant ;

(2) that a telephone operator is not a workman for the purposes of the Standing Orders, and hence is not entitled to file and maintain a grievance petition against the termination of his services ;

(3) that the I.R.O. is not applicable to the hospital establishment of the appellant on account of the amendment in the said Ordinance made by Ordinance No. LI of 1979; and

(4) that the service of the respondent were validly terminated under clause (1) of Standing Order 12.

3. In support of his first contention, it was submitted by Mr. Badrudduja that the hospital is not an industry and consequently, it is not to be considered as an industrial establishment for the purposes of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. The short answer to this objection is that the Standing Orders are not only applicable to industrial establishments but also to commercial establishments. As such, even if a hospital does not come within the ambit of industrial establishment, as defined in the Standing Orders, it may fall within the definition of commercial establishment, as given in the said Ordinance, and in that case, the Standing Order would be applicable to it. The appellants hospital is admittedly not a charitable institution. Further more, the appellants are a company registered under the Companies Act, 1936. The definition of commercial establishment in the Standing Orders includes a unit of a joint stock company. It has been held by this Tribunal in the case of Dr. Burjor Anklesaria Nursing Home v. Zafar lqbal (N L R 1980 DD‑273) that the hospital of the appellant is a commercial establishment for the purposes of the Standing Orders. It was held by a Division Bench of the Karachi High Court in the case of Liaquat National Hospital v. Government of Sind (P L D 1977 Kar. 843) that despite the fact that Liaquat National Hospital was being run without profit, it wan liable to pay cess under the Workers' Children (Education) Ordinance, 1972, since it was engaged in a service. In the case of Marie Adelaide Leprosy Centre Employees Union v. Registrar, Trade Unions (P L D 1977 Kar.210) it was held by a learned single Judge of the Karachi High Court that the said centre, which is an establishment for the treatment of leprosy, is an industry for the purposes of the I.R.O. In the subsequent case of Medical Educational Uplift Fund Association of Seventh Day Adventists in Pakistan v. Vth Sind Labour Court (F L D 1978 Kar. 5361), it was, however, held that the Seventh Day Adventists Hospital was neither an industrial nor commercial establishment but this was on the footing that it was a charitable institution run on no profit basis. This is not the case in respect of the hospital run by the appellants. I accord ingly am of the view that the hospital establishment of the appellant; is a commercial establishment for the purposes of the Standing Orders.

4. It was next submitted by Mr. Badrudduja that a telephone operator, which work was being done by the respondent at the time of termination of his services, does not fall within the definition of workman given in the Standing Orders, as he does not perform manual or clerical work. I see no force in this contention. It is an admitted position that there is P. B. X. installed in the hospital run by the appellants and that this P. B. X. has 5 lines with 20 extensions to various departments, It was conceded by Mr. Badrudduja that this is manually operated P. B. X.,. and consequently, operators have to be appointed to work on the same. It may be pointed out that originally the definition of a "workman" as c contained in the Standing Orders used the word 'labour', but this word was replaced by the word 'work' by Act XXIII of 1973. This substitution and the implication thereof was noticed b this Tribunal in the case, Johnson & Johnson (Pak.) Ltd. v. Zubai Ahmad (1980 P L C 622). It was observed in that decision that the word 'worker' has much more comprehensive meaning than the term 'labour' and that the use of the former word was intended to cover a broader field of activity that the use of the latter, as the a word 'work' includes within its scope something more than mere physical exertion, which falls under the ambit of the work Labour. But even if we assume that the word 'work' as used in the definition of the, workman in the Standing Orders implies physical work of manual nature the respondent while employed as an operator on a manually operated" Exchange, would be deemed to fulfil this requirement and thus would be deemed to be a workman for the purposes of the Standing Orders.

5. It was next submitted by Mr. Badrudduja that as the I. R. O, has become inapplicable to hospital with effect from 20th September. 1979 upon the promulgation of the amending Ordinance LI of 1979, the respondent was not entitled to file and maintain a grievance petition under section 25‑A; I. R. O. This objection ever looks the fact that the respondent had filed the grievance petition not under section 25‑A, I.R.O" as indeed he could not do so, not being a worker for the purposes of the I.R.O., by reason of the fact that his services had been terminated and such termination was neither on account of an industrial dispute nor had led to an industrial dispute, but that the grievance petition was filed under the provision of clause (3) of Standing Order 12, which entitles a workman whose services have been terminated, to take action in accord ance with the provisions of section 25‑A, I. R. O: 1969, whereupon the provisions of the said section are to apply as they apply to the redress of an individual grievant. Not standing, therefore, the fact that the I. R. O., has ceased to apply to hospitals, the respondent was entitled under. the provisions of clause (3) of Standing Order 12 to file a grievance petition under section 25‑A, I R.O. Similar view was express by this Tribunal in the case of Muhammad Yameen v. Pakistan Security Printing Corporation (1980 P L C 802). No doubt, in the reported case, reliance was also placed on the Provisions of section 6 of the General Clauses Act, but even where the provisions of the said Act are not available, an employee falling under the definition of "workman" as given in the Standing Orders, who is aggrieved by the termination of his services, would be entitled to file a grievance petition under the provision of clause (3) of Standing Order 12, not standing the fact that he may not be a workman for the purposes of the I.R.O., or the I.R.O. may not be otherwise applicable to him.

6. Mr. Badrudduja sought to rely on the case of Managing Director, Pakistan Television Corporation v. Ghulam Mohd. Sheikh (P L J 1979 Tr. C.255) in. support of his contention that the respondent was not entitled to file a grievance petition under section 25‑A, I.R.O., but the decision in that case turned on a totally different point which was that as the respondent workman's case was governed by the provisions of Pakistan Essential Services (Maintenance) Act, 1952, and the Rules framed there under, he could not file a grievance petition under the I.R.O., against the termination of his services.

7. It was finally contended by Mr. Badrudduja that the respondent's services were validly terminated by the Hospital under the provisions of clause (P L J 1979 Tr. C.255) of Standing Order 12. In support of his contention, Mr. Badrudduja submitted that although for some time the appellant hospital had employed 4 operators, since only 3 shifts, each of 8 hours duration, were required to work, the appellant company, in the interest of economy, decided to do away with one operator and as the respondent was the junior most operator, his services were terminated on one month's notice, in accordance with the provisions of clause (P L J 1979 Tr. C.255) of Standing Order 12. On the other hand, it was contended by Mr. Muhammad Rafiq, the learned Representative for the respondent, that not only the work in the appellant Company justified of the employment of 4 operators, but that admittedly when the respondent's services were reanimated a ward‑boy was appointed as telephone operator. He further submitted that the true reason for termi nation of services of the respondent was not that the appellant Company did not feel the need or necessity of continuing to employ 4 operators or for effecting economy, but was for the purpose of curbing the activities of the employees' Union, of which the respondent was the president at the relevant time. Elaborating his arguments in support of the latter limb of his contention, the learned Representative submitted that the respondent was previously a member of the managing committee of the workers union, but when the workers' Union ceased to exist on the promulgation of Ordinance LI of 1979, the employees formed an association of which the respondent was chosen as the president, and shortly after intimation of this fact was given to the Management the respondent's services were terminated. The learned Representative submitted that this was not the first act of victimization by the appellant Company against the officers of the association or the workers' Union, but at about the time when the services of the respondent were terminated, the appellant company had terminated the services of the General Secretary of the Union, Sultan Ahmad, and previously, the then President of the Anklesaria Nursing Home Staff Association, Mubin Ahmad, was similarly removed, without any valid reason, by the management. Dr. Anklesaria was examined as a witness in the Labour Court and admitted the removal from service of both Sultan Ahmad and Mubin Ahmad. 1n. the case of Sultan Ahmad also, the order terminating his service, which is dated 20th March, 1980, simply that his services were no longer required. The removal from service of 3 office‑bearers of the workers' Union employees' association, within a short time, thus seem to suggest an antipathy on the (1) V L 1 1979 Tr. C. 255 part of the Management to such a Union or Association. This inference gains material support when we consider the first limb of argument of Mr. Muhammad Rafiq that there was no sufficient justification for terminating the services of the respondent. It is an admitted position that on 24th March, 1980, i.e., just 12 days after the services of the respondent were terminated, ward‑boy Nazeer Ahmed was appointed as an operator, w. e. f. 13th March, 1980, for performing 8 hours duty per day. It was sought to be explained by Dr. Anklesaria in his evidence before the learned Labour Court that this appointment was of temporary nature and was necessitated by the 'fact that one of the permanent operators, Khalid Peter, was not able to perform night duties and hence he was required to perform the duties of ward‑boy while ward‑boy Nazeer Ahmad appointed as telephone operator in his place. From the attendance register of the ward‑boys for the months of September and October, 1980, it appears that Khalid Peter continued to perform duties as ward‑boy at least till October, 1980. As such, the appointment of Nazeer Ahmad as a telephone operator cannot be considered as temporary or as a stopgap arrangement. If there was a need of appointing an operator, then the justification for terminating the service of the existing operator, solely on the ground that his services were no longer required, cannot be justified. This circumstance thus lends support to the contention of Mr. Muhammad Rafiq that the termination order in respect of the respondent was not bona fide but was motivated by other consid erations. As such,. I would concur in the view taken by the learned Labour Court that the order terminating the services of the respondent cannot be upheld.

8. 'there remains the question whether the respondent is entitled to full back benefits. Although section 36‑B, I.R.O., which provided for award of back benefits and consequential had relief in case of an order of re‑instatement in services, is no longer on the statute book, but sub section (5) of section 25‑A, I.R.O., empowers the Labour Courts to pass such orders as may be just and proper to the circumstances of the case., It is thus within the province of the Labour Court in appropriate cases.1 to award back benefits. No ground has been shown which would disentitle the respondent to back benefits. Although the appellant Company had stated that they were prepared to re‑employ the respondent as and when vacancy of operator arose in their establishment, the respondent was not re‑employed by the appellant company uptil today. This would seem to suggest that perhaps the offer was of formal nature. In the circumstances, I would consider that the award of back benefits as awarded by the learned Labour Court was appropriate.

9. For the reasons discussed by me above, I would dismiss the appeal.

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