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West Pakistan

-‑‑S. 3 (p) & (h) and Industrial Relations Ordinance (XXIII . of 1969), Ss. 1(3) (f) do 25‑A‑Railway Hospital maintained for treatment of sick and infirm persons ‑ Not a commercial establish ment ‑ Excluded from operation of Industrial Relations Ordinance, 1969 ‑ Employee of such hospital not entitled to file grievance petition before Labour Court.

Karachi Electric Supply Corporation Ltd. v. ,N. I. R. C. P L D 1982 S C 125 ; Khudda Baksh v. Pakistan Steel dill. Corporation C. P. No. 626 and 755 of 1980 ; Medical Educational Uplift Fund of Associa tion of Seventh Day Adventists of Pakistan v. Vth Sind Labour Court P L D 1978 Kar. 539 and Youngmen's Christian Association, Karachi's case 1975 P L C 222) rel.

Rasheed Ahmed for Appellants.

A. Razaq ‑Puri for Respondent.

Date of hearing : 2nd August, 1982.

DECISION

This appeal is directed against the decision of the learned Third Labour Court, given on 25‑3‑1982, on the grievance petition preferred by the respondent‑workman challenging his removal from service with effect from 25‑1‑1981. The learned Labour Court, by its impugned decision, has held that no misconduct on the part of the respondent was established and, accordingly, has ordered his re‑instatement in service with full back benefits.

2. The admitted facts of the case are that the respondent was an ambulance driver in the Pakistan Railways Hasan Hospital,‑ Karachi Cantonment, Karachi. He was served with a charge‑sheet., dated 1‑11‑1980, along with a statement of allegations to the effect that he had failed to maintain water and engine ,oil level in the Suzuki Car in his charge with the result that the engine of the said car ceased to work and the car had to be sent to the workshop for repairs. A domestic enquiry on the basis of the said charge was held against the respondent and according to the report of the Enquiry Officer the allegations contained in the charge‑sheet were established against the respondent. He was, accordingly, removed from service by order, dated 24‑1‑1981. The respondent challenged the said order of his removal from service before the learned Third Labour Court Which was directed against his re‑instatement in service with full back bene fits, as already ‑indicated. Choudhry Rasheed Ahmed, the learned counsel for the Pakistan Railways, assailed the impugned decision of the learned Labour Court on the following two grounds:‑

(i) That the grievance petition of the respondent was not maintainable since he was in the employment of the Central Government which is running the Pakistan Railways Hasan Hospital, and hence the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, are applicable to him ; and

(ii) That the grievance petition of ‑the respondent is further not maintainable as the Pakistan Railways Hasap Hospital, where the respondent was admittedly‑employed, is neither an industrial estab lishment nor a commercial establishment and hence the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, .1968, including Standing Order 12 thereof will not apply to the respondent.

Mr. Ch. Rasheed Ahmed also sought to argue that as the respondent has only made the Senior Medical Officer of the Pakistan Railways Hasan Hospital as party to the proceedings and had not impleaded the Pakistan Railways, which was his employer. the grievance petition was further invalid and should not have been allowed or even entertained. He, however, gave up this point when it was brought to his notice that this point had not been specifically raised before the learned Labour Court.

3. Mr: A. Razaq Puri, the learned' counsel for‑ respondent‑workman,. on the other hand, strongly contended that the respondent was workman for the purposes of the labour law and since the charges against him had not been established, as rightly held by the learned Labour Court, the decision of the learned Labour Court directing the re‑instatement in service of the respondent with full back benefits suffers from no infirmity and should be maintained.

4. Coming back to the two contentions raised by Ch. Rasheed Ahmed he relied upon the decision of this Tribunal in. the case of Divisional Superintendent, Pakistan Railways, Karachi v. Mrs. Nasim Sadiq, decided on 24‑3‑1982. In that case, among the issues which were considered and decided by this Tribunal were firstly, whether Mrs. Nasim Sadiq, who was employed as a Matron in the Pakistan Railways Hasan Hospital, was governed by the provisions of the Pakistan Essential Services (Maintenance) Act, 1952 and ‑ was entitled to file and maintain a grievance petition challenging termination of her services, and secondly, whether the Pakistan Railways Hasan Hospital was an industrial or commercial establishment for the purposes of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1963. With regard to the ‑first, point this Tribunal in the aforesaid case held as follows :‑

" 10. Mr. Alvi also raised objection to the maintainability of the respondent's grievance petition on the ground that her employment as governed by the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the said Act) and her only remedy was to initiate prosecution under section 7 of that Act and not to file a grievance petition under the . labour laws. The provisions of the said Act, apply to every employment under, the Central Govern ment and in case of such employees the issuance of a periodic notification is not necessary as in the case of other employment of class of employment; which the Central Government consider to be essential. It was sought to be urged by the learned counsel for the respondent that the respondent was a Railway servant and as the Railway administration was being run by a Railway Board, she cannot be deemed to be. in‑ the employment of ..the Central Government. The submission of Mr. Mohammad Ahmed‑ is with force. ‑ The Railway Board is an organization which is directly working under the Central Government and is a part/and. parcel 'of the Central Government, though it has certain statutory ‑powers and functions. The Railway budget is a part of the Federal budget, and under the Rules of Business of the Federal Government, the Ministry of Railways deals with the Secretariat and Governmental functions of the Railways. I am, therefore, inclined to the view that Railway servants are in the employment of the Central Govern ment for the purposes of the said Act. However, the question whether persons whose employment is governed by the said Act are entitled or disentitled from approaching the Labour Courts against the termination of or dismissal from service appears to be still unsettled and not free from doubts. No doubt, the majority decision of the Full Bench of the Karachi High Court in the case of Pakistan Burmah Shell v. Central Labour Commissioner (N L R 1981 Kar. 13), has taken the view that the application of the said Act to a person does not disentitle such person from approaching the Labour Courts for redress against illegal termination of services or dismissal from service, but the Supreme Court in the case of Karachi Electric Supply Corporation Limited v. N. 1. R. C. (P L p 1982 S C 125), has observed that the Pakistan Essential Services (Maintenance) Act, 1952, and the . Rules of 1962, framed thereunder, are self‑contained and override the provisions of other enactments and that if the respondents before their Lordships felt aggrieved either by their termination of services or dismissal, they should have taken steps to institute the proceedings as provided by section 7 of the Act, and in that event it will be open to the Court to determine whether the discharge, termination of services or dismissal was according to the terms and conditions of services or was without lawful excuse. I may humbly point out that there appears to be nothing in the judgment of their Lordships of the Supreme Court to indicate that persons whose employment is governed by the provisions of the said Act can or are entitled to approach the Labour Courts against their dismissal from service. However, the aforesaid decision of their Lordships of the Supreme Court was considered by a Division Bench of the Karachi High Court in the case of Aqil ‑Ahmed Ansari v. P. I. A. C., being C. P. No. D ‑ 215/78, decided on 23‑2‑1982. In that case, their Lordships of the High Court have held that the appellant‑workman, whose employment was admittedly governed by the provisions of the said Act, was entitled to approach the Labour Courts against the service of a charge‑sheet for remaining absent without leave. Apart from the fact that the issue before their Lordships of the High Court did not relate to termination of services or dismissal from service, the matter appears to have been decided at least partly on account of the learned counsel for the P. I. A. C. _(respondent) conceding the position that the Labour Court retained jurisdiction in the matter in the absence of any other forum being provided in addition to penal action under the said Act. In these circumstances, I do not consider it necessary to decide this issue, specially in view of my findings on the other issues raised by the learned counsel for the parties"

5. The controversy with regard to the issue whether an employee, to whom the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, are applicable, is entitled to approach the Labour Court for redress against the termination of his services appears to have been concluded by the decision of a Division Bench of the High Court of Karachi in the case of Khuda Baksh v. Pakistan Steel Mills Corporation (C. P. Nos. 626 and 755 of 1980). In that case, their Lordships of the Division Bench referred to their earlier decision in the case of Aqil Ahmed Ansari v. p. 1. A. C. (C. P. No. 115 of 1.978) and while dissenting from the view taken therein observed that it was based on the learned counsel for the P.I.A.C. conceding that the Labour Court has jurisdiction. This Tribunal, in the case of Shah Jawaid v. P:I.A.C , decided on 24‑5‑1982, has respectfully followed the latest view taken by the High Court in the case of Khuda Baksh v. Pakistan Steel Mills Corporation.

6, In support of his second contention that the Pakistan Railways Hassan Hospital is neither an industrial nor commercial establishment and hence the respondent is not entitled to file a grievance petition under the provisions of clause (3) of Standing Order 12 read with section 25‑A, I. R. O., against his removal from service, Mr. A. Rashid relied upon the following passage from the judgment of this Tribunal in the case o Divisional Superintendent v. Mrs. Nasim Sadiq :‑

"11. It finally falls to be considered whether the Hasan Hospital, Karachi where the respondent was admittedly employed at the time of termination of her services, is a commercial or industrial establishment, and the respondent was entitled to file a grievance petition against the termination of her services under clause (3) of Standing Order 12 read with section 25‑A, I. R. O. It is not disputed that the Railway Hasan Hospital is not an industrial establishment. However, it was contended by Mr. Mohammad Ahmed, the learned counsel for the respondent, that it is a commercial establishment for the purposes of the Standing Orders, as private patients are admitted to and treated in the hospital on payment of prescribed charges. Paragraph 38 of Chapter II, entitled "medical attendance" in the N. W. Railway Medical Manual, 1952, as revised, provides that "all Railway servants and their families shall be entitled to gratuitous medical attendance when seeking it at .the Railway hospital or dispensary, as outdoor patients, and also to the extent of accommodation available, as indoor patients." It will thus appear that the Railway hospitals are primarily meant to provide free treatment to the Railway servants and their families, and also to the persons who may be involved in accidents either while traveling on Railway trains or while they are on Railway premises as testified by the Divisional Medical Superintendent, Karachi. Mr. Mohammad Ahmed, however, relied upon paragraph 63‑A of the above chapter containing rules for the attendance on members of the public. These rules provide for the admission for treatment at the Railway hospitals of private persons and the charging of fees from them, except in case of victims of Railway accidents. The fees chargeable from these private patients, the scale whereof is to be prescribed by the ,General Manager of the Railway, are to be :hared in the proportion of 1/3 and 2/3 between ‑the‑ Railway administration and the Medical Officer rendering the service respectively. It has been explained by Dr. Abdul Salam, the Divisional Medical Officer, that the fees received from private patients by the Railway hospital would constitute about 5% of the expenditure on the railway hospitals and that such fees just suffice for the expenditure incurred by the Railway hospitals on the private patients, while the rest of the expenditure for the running of the hospitals and the treatment of the Patients is borne by the Government. It would thus appear that the Railway hospitals and dispensaries are not commercial establishments and are not being run for the profit of any person or organization. In the case of Medical Educational Uplift Funds of Association of Seventh Day Adventists of Pakistan v. Vth Sind Labour Court (P L D 1978 Kar. 539), a learned single Judge of the Karachi High Court, relying upon the decision of my learned predecessor in the case of Youngmen's Christian Association, Karachi (1975 P L C 222), and the unrepor ted decisions of the Punjab Labour Appellate Tribunal in the case of United Christian Hospital, Lahore v. United Christian Hospital Employees' Union, decided on 19‑6‑1976, held that a hospital run on no profit basis does not fall within the scope of either a commer cial or an industrial establishment under section 3(p) and (h) of Ordinance VI of 1968 and that the employees of the Seventh Day Adventists Hospital are not workmen for the purposes of the Standing Orders, although fees may be charged from persons taking treatment in the hospital, since the organization running the hospital was a non‑profit organization and the income received from running the hospital was to be applied for meeting the expenditure of the hospital and the surplus, if any, was to be used for a charitable object. In the instant case also, although the Hasan Hospital is not a charitable hospital and is not running for charitable purposes, but it is being run mainly for Railway Employees and their dependents, who are treated free and it is not being run for the profit of any person or organization.'.'

7. It may finally be pointed out that clause (f ) of subsection (3) of S. I. I. R. O., excludes the application of the Industrial Relations Ordinance to establishments maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons. The employees of Pakistan Railways Hasan Hospital, which hospital is admittedly maintained for the treatment o sick and infirm .persons, are thus excluded from the Operation of the provi sions of the I. R. O.

8. For all these reasons I am of the view that the grievance petition of the respondent was not maintainable, I would accordingly, set aside the impugned decision of the learned Labour Court and allow the appeal: The back benefits deposited by the‑ appellant are, accordingly, ordered to be refunded.

Revision dismissed.

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