MUHAMMAD TAJ Versus Messrs GENERAL TYRE & RUBBER COMPANY OF PAKISTAN LTD.

ORDER

This is third time the case has come before this Labour Court, where Mr. Muhammad Taj employee of the General Tyre & Rubber Company of Pakistan Limited was reinstated but the Court had also issued the directions, that if the foreman finds that he had not recovered his muscle power, to work, on the machine Press Tyre Operator, the Management can complete his termination and pay the legal dues, or if he had a choice to work as a helper he can work in the company for, this direction was given, that other workmen with disabilities also work there. But the job, on which he was employed as Tyre Press Operator, was difficult for him to do so because both the foreman and the Medical Surgeon Mr. Aftab Ahmed were consistent that he has no capacity to work as Tyre Press Operator.

2. During the pendency of the matter, before the. Labour Court, Ch. Rasheed Ahmad had filed application that the Medical Board to sit to examine the finding of Mr. Aftab whether Mr. Taj is a fit person to work on the machine. What Ch. Rasheed Ahmad has stated, in the arguments, is precisely that Aftab had certified 70% of fitness and therefore he was a fit man. The prayer of Mr. Ch. Rasheed Ahmad was considered but judicially it was examined and found that it was not necessary to constitute the Medical Board. It directed that Mr Aftab should re‑examine Mr. Taj to give the final opinion.

3. The case was also decided, and the Court passed the above observation that the foreman's certificate, in view of what he has said before the Labour Court, should be the basis, for its future continuance. The Court examined the evidence of Mr. Aftab and the evidence of foreman and attached the importance to his evidence being qualified expert to work on the machines. The evidence of Dr. Aftab Ahmad though showed that, he was not a fit man but at the same time desired further examination. To end that uncertainty and to close the litigation, the Court insisted on those two choices, either he should work as a helper, which was of lighter duty or to get the certificate, from the General Foreman after three months working. His services have again been terminated.

4. He has come aggrieved, that in spite of the report of the foreman, he was not given the copy of the report, when the General Foreman had given the assurance in the presence of some officials that his work is, satisfactory and he will continue the job.

5. This petition reveals, that the report of the foreman is after due consultation and his repeated request to send him for the Medical Board were also turned down.

6. Ch. Rasheed Ahmad has produced the copy of the Medical Board's (Finding which reads that as per order dated 29‑6‑1987 from the Secretary, Government of Sind, Health Department to examine Mr. Taj, three members of the Board examined Mr. Mohammad Taj and found him fit to work as Operator.

7. During the course of arguments, Ch. Rasheed Ahmad has made the statement that appeal was fled against the first decision and by consent of the parties, the case of the applicant was referred to Medical Board by the honourable Sind Labour Appellate Tribunal. Amazingly, in paragraph 19 of the written statement of this case it has not touched this aspect of the constitution of Medical Board, under the orders of the honourable Tribunal. But rather, it has been emphasized that there has been no order by this Court to refer the applicant to the Medical Board.

8. If Ch. Rasheed Ahmad has made the statement that by the consent order, the honourable Tribunal directed for the constitution of the Medical Board, why the respondent has not disclosed this fact, before the Labour Court, to examine the case in that perspective. Why this fact has been concealed or ;avoided before the Labour Court when the Medical Board is constituted under the directions of the highest Sind Labour Appellate Tribunal. All that the counsel of the respondent, has been repeating or rather emphasizing is that the report of the Medical Board has no relevancy to the case, because there was no such direction by the Labour Court.

9. This is to point out to the counsel that those directions are given in an appeal against the first decision by the highest Court and therefore that report forms part of the record. And the Court also feels that why the medical finding of the Medical Board is being kept away. Ch. Rasheed Ahmad has rather assisted the Court in the administration of justice by providing the certified copy to the Labour Court from the honourable Tribunal which has made the task of the Court easier. Much can be said on the evidence of the witness of the respondent Mr. Lakhani, what he has said before the Court of law:

"I do not know whether the Medical Board was constituted under the directions of Sind Labour Appellate Tribunal:"

10. If he was the officer concerned, representing the respondent in the judicial matter, of which‑he has shown ignorance rather cautiously, if it is true that he was fully cognizant of the fact that such were the directions, this can be clear contempt under the Contempt of Court Act. For the slightest moment, if the witness feels, that this aspect of the evidence would have been left over what magnitude of damage, could be caused in the dispensation of justice. This reflects on the characteristic ability of the witness, to keep the Court uninformed. On the other hand Ch. Rashecd Ahmad has rather contributed more to assist the Court in the dispensation of justice, what was his legal obligation.

11. However to be precise, the evidence of Mr. Lakhani is before the Court and also of Mr. Mohammad Taj and finally the evidence of the General Foreman who was examined as the last witness and the witness examined late, in the Court.

12. The Court has the benefit of reading the evidence of all these three persons in light of the opinion of the Medical Board which if it is directed by the honourable Tribunal, it forms part of ?he evidence.

13. What is the quality of his evidence, as a whole.

14. Mr. Lakhani's cross‑examination is very brief to which he has given the following mind:

"It is the duty of the foreman to check the performance of the applicant. It is not correct that the report of the General Foreman is forged. It is correct that the services of the applicant were terminated on the basis of the report of Mr. Taj. I do not know whether the Medical Board has given the report. There is no evidence except the report of Mr. Taj."

15. What the foreman has said is as under:

"I have given my general performance report. I have used the word contracture in my report. I speak of the injury. It is not correct that this word contracture used in my report, is written in the office of my Advocate, on his directions. It is not correct that the signature on the report is a forgery. It is not correct that I was forced by the management to go and give the evidence or face the removal. My duty hours are 8.00 hours. When there is overtime, another man is incharge. It is correct that Mr. Taj has worked for 32 hours continuously. I did not take report from my subordinates regarding his assessment of the work."

16. The witness is asked the specific question about the check loading system. He explains that heavy tyres are loaded in the truck through check loaded system and by manual labour. It is not correct that this report of mine is dictated by somebody else. The reference is also made to Exh. 3 and Exh. 4.

17. . The report of 21‑12‑1986 of confidential nature issued by foreman is of this nature that Mr. Taj cannot work as helper due to contracture of his left hand.

18. With this data available, and the finding of the Medical Board of 29‑6‑1987.

19. The evidence of Mr. Lakhani has been seen with all its peculiarities, on certain points of truth. The evidence of foreman is also seen. He has supported the disability, though questioningly, he has been asked, regarding his influence of management to give the report, he has confidently repelled the suggestion, to give the impression of being truthful witness. What the Court has found is that the previous directions of the Court were specific that in view of what the foreman's reliability, is the test, before the Court of law. The Court fully attached importance to his opinion fairly if it finds that Mr. Taj was either fit to work or disabled to work. He has given the opinion, in affirmative that he is unable to do duty on the machine as a helper. In other words, it has been shown that he works but there is no proper working due to disabled hand. But what ‑has been introduced in the course of evidence is a new question, that is the finding of the Medical Board given on 29‑6‑1987. This is also the opinion of three distinguished Medical Surgeons and Physicians basing their opinion on the medical experience to weigh the opinion what was given earlier by Mr. Aftab Ahmad. But at the same time, those medical officers are not examined by either side. Despite that lapse of their own choice, not to examine them, the finding remains confirmed that Mr. Mohammad Taj has now, the normal muscle power in his left hand with residual contracture in his left two middle fingers, grip of his left hand normal and he is a right‑handed person.

20. In the opinion of the Medical Surgeons he can work as an operator being fully fit person, obviously understood to work on the machine. Despite this opinion of the Surgeons if the Court of law has taken the view in the decision prior to the receiving of this opinion of the Board that the evidence of the qualified foreman has been tested to be reliable in their earlier proceedings. Therefore, the Court desired to know its opinion, the intervening opinion of the Medical view as against the legal view, the Court will sum up in these few words. If the opinion of the General Foreman has been given that he cannot work properly is to be placed in contradistinction to the word fitness. The point before the Court was also for the purpose of contest, whether Mr. Taj is a fit person as an operator. The view of the Court remains there but the Medical Board's view is also of the far‑reaching importance that he is a fit man for the particular job. It is now for Mr. Taj to reach that standard of protection and Court fully appreciates that if he can work 32 hours continuously with another check load system, his dismissal now cannot be affirmed. In other words, the finding of the Board has given him a chance to work in the position as operator.

21. Mr. Mahmood Ghani has very ably resisted this contention of the applicant that if the decision of the Court was given and. no appeal is filed it becomes the finality. Indeed no appeal was filed. But the Medical Board constituted under the directions of the honourable Sind Labour Appellate Tribunal, in an appeal against the first decision of which this is a third litigation, the Labour Court cannot overlook. These were the directions of the highest forum and it was the obligation of the parties to have assisted the Labour Court with the facts in the resolution of the Industrial problem. It will be against the notions of natural justice that important piece of evidence which has bearing on the issue of adjudication is being kept away from the Labour Court to keep the problem unsolved leading to complications and litigational tendencies. If those directions of the honourable Tribunal, have been supported by the statement of the Senior Counsel Ch. Rasheed Ahmad in his argument notes, that statement of the Member of the Bar carries the high sanctity when particularly it is said that it was consent order. The conception of the law that rests in the mind of Mr. Mahmood Ghani that those findings have no relevancy with this decision in context of the second decision of the Labour Court, he has taken error of the view. The directions of the honourable Tribunal is like the judicial precedent, as quoted like other precedents to be taken as judicial notice of the highest Tribunal's pronouncement for the Labour Court's guidance.

22. In view of the matter therefore, now remains the fact what back benefits should be awarded . The Court fully agrees with Mr. Mahmood Ghani senior learned counsel, that at the time, when Taj was dismissed about five years ago, his hand was not normal, with failure of muscle power, and also the injury was received outside the employment. The Court is also of the view that it will be in' the spirit of the administration of justice that equity be maintained, what is called the legitimacy of the entitlement, firstly the prosperity of the company depends on; the production and the labour to share that part of benefit legally admissible. Secondly, if the order basically was not illegal or based on malice or to remove him for some other ends, but if the dismissal is being set aside on the finding of the Board which has found him fit now, the fairness of the decision should be that) 25% of the benefits be given to Mr. Taj with further continuation in the job. He is reinstated with the above directions.

23. Ch. Rasheed Ahmad has referred to number of decisions as judicial precedents to show that once the order is set aside due to wrongful dismissal or illegal dismissal, and the employee is kept out of the work the back benefits be granted. Reference has been made to number of decisions namely P L D 1983 Lahore 661, 1983 P L C 721; 1984 P L C 845, 1984 P L C 532, 1986 P L C.519, 1980PLC61,1983PLC723,1977PLC 165.

24. The facts in each decision are distinguishable in the given set of facts. But the principle of granting back benefits is given in the decisions that back benefits can be awarded in the case the dismissal is illegal or wrongful. But what should be the back benefits and the quantum of back benefits? The Court has read every decision, it is given in the context of different facts, what the Labour Court has understood. There is a decision of 1977 P L C 162 in this case, his Lordships has held*that if there is reinstatement, the benefits to follow. The word "and" between the word reinstatement and the consequential benefits as emphasized in section 36(b) (iv) IRO are conjunctive. Ch. Rasheed Ahmad has referred also to the decision of the honourable Division Bench of the Lahore High Court, where also the back benefits were directed. But his Lordship also observed that if the back wages were disallowed there should be specific reason given. By this decision of the honourable Division Bench the quantum or quantity of back benefits is the discretion of the Labour Court, for what the Court has seen that there are cases where the back benefits have been considered whether I he was gainfully employed or were disallowed and again restored because those were disallowed due to negligence. So, each case has got peculiarity of the facts,) with the basic principle that back benefits arise out of wrongful dismissal but what back benefits be awarded is in the different circumstance. For example, as in this case the injury was sustained outside the employment. The medical certificate issued in the first instance was of the unfitness. The Court also declared him unfit with certain directions. Subsequently Medical Board was constituted which certified that he has regained the muscle power and is fit. During this all process the litigation continued till the Court was satisfied that the requirements of justice are fully observed. Sometimes the matter is delayed for adjournments of compelling reason. The employee has not worked in the organization. The existence of the employee contributes to production, to earn the prosperity, to be shared by the worker to his extent of entitlement of wages or other facilities, such as the bonuses or the leaves or other privileges, which go with his physical performance, to maintain the equity of the relationship, in the context of the soundness of the rational approach to the extent of paying the benefits what he can be reasonably entitled to, as long as the order of dismissal is not basically illegal or basically wrongful with malicious consideration. But if there is a concept of the law, of which the error of the view is taken, which otherwise the Court of law declares that in what circumstances, the dismissal has taken place, that dismissal cannot be said to be malicious, and therefore, Court is to consider what back benefits should be awarded as a question of fact. This is what the Labour Court has found the equity, in the given set of facts with reasonable propriety that four years back benefits cannot be granted as absolute but to the extent of 25% because the employee was out of the job by the disability which was the natural disability and not by his own act of volition. Ch. Rasheed Ahmad is also right and Mr. Mahmood A. Ghani is also right. What the Court has judged better, m the given set of facts, the peculiarities of the evidence, ‑the characteristics quality of the medical certificate and the presentation of the parties before the Court, the rational examination of the problem, in the context of the legal application, 25% back benefits will meet the ends of justice. But at the same time what the Court finds in the context of the evidence of Foreman whom the Court has attached the reliability in the earlier decision, Mr. Taj will reach the stage of production to avoid the losing of job, for the basic consideration the Labour Court feels and will be relevant to this case that every employer expects the better production, sound production to go in 'the market with better return for the economic well‑being of the labour as well.

25. The application is allowed. He is reinstated with 25% back benefits.

A.E/1133/Lb. S ?????????????????????????????????????????????????????????????????????????????????? Application allowed.