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Petitioner: EMPLOYEES UNION (REGD.) VS Respondent: MANAGEMENT, UNITED CHRISTIAN HOSPITAL, JUDGMENT
Court Name: Labour Court Judge(s): Malik Lehrasap Khan Title:EMPLOYEES UNION (REGD.) vs MANAGEMENT, UNITED CHRISTIAN HOSPITAL,
JUDGMENT
Reported As: 1978 PLC 7 Result: Application is dismissed. Judgment JUDGMENT ' The under consideration application under section 25-A of the Industrial Relations Ordinance, 1969 read with Standing Order 12 of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has been brought by the United Christian Hospital Employees' Union (Regd.) hereto after referred as the petitioner-Union against the Management of the United Christian Hospital, Lahore seeking the re-instatement of eight workers who were members and office-bearers of the petitioner-Union and whose particulars are given in para. 1 of the application and who were dismissed from service by the Management on the charges of misconduct. 2. It is alleged in the petition that in the first week of January, 1972 a delegation of the employees of the hospital called upon the Medical Director of the Hospital and requested him to redress the grievances of the employees of the hospital. He however disregarded the request altogether. Subsequently the employees of the hospital brought certain allegations of corruption through an application against three officers namely Samson Mohoahe, Director Administration, Edger B. Ram, Assistant Administrator and J. D. Gill, Stores Supervisor requesting the initiation of disciplinary action against the said officers. The Medical Director instead of taking action against the officers threatened the employees with dire consequences. The employees of hospital therefore reported to the Chairman of the Board of Directors who constituted an Enquiry Committee to investigate into the charges of corruption against the aforesaid officers. Subsequently the petitioner-Union made a report to the then Health Minister of the Punjab who constituted another Committee to investigate the allegations of corruption. On 17th April 1972, two permanent employees of the hospital, namely
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Mukhtar Masih, the Head Cleaner and James, the Head Mali who were executive members of the Union were demoted by the Medical Director for their Trade Union activities. On 8th June 1972 the Medical Director was informed through a notice that Union would lodge a token protest on 9th June 1972 against his unjust and unreasonable attitude. No reply was sent to this notice. On 9th/lO th June 1972, a token protest was conducted by the Union against the attitude of Medical Director. On 10th June 1972 at about 5-30 p.m. The supporters of Medical Director numbering about 60 armed with lathis and brick-bats, etc., attacked the members of the Union, caused injuries to many of them and turned them out of hospital premises forcibly. In this manner 200 employees remained illegally locked-out for about thirteen days. Ultimately the then Special Assistant to the Governor and Dr. Ghulam Hussain, M. N. A. Who was also Chairman of Enquiry Committee constituted by the Health Minister intervened and on 23rd June 1972 locked-out employees were allowed to resume their duties. On the same day the Medical Director charge-sheeted the aforementioned 8 employees for misconduct on the allegations that they illegally struck the work, took away the keys of their departments with them, instigated and incited several other employees of the hospital to go on illegal strike and that on 10th June 1972 at about 6 p.m. During working hours and visiting hours of the hospital they along with others indulged in brick-batting which resulted in injuries to several employees of the hospital and jeopardized lives of several patients and visitors. The concerned employees were required to give their explanations in writing within three days of the receipt of the charge-sheet. They were also placed under suspension. On 28th June 1972, the said employees submitted individual explanation to the Medical Director denying the allegations levelled against them. The Medical Director hurriedly appointed an Enquiry Officer who was an outsider to hold an enquiry against the said employees. The employees concerned made various representations to the Medical Director that the Enquiry Officer was biased and partial against the employees and that he should be substituted by an impartial Enquiry Committee. Their protest was not considered at all, enquiry was held ex parte against them and on the basis of the report of the Enquiry Officer the said employees were dismissed by the Medical Director wrongfully. According to the petitioner-Union the orders of dismissal of the aforesaid 8 employees were illegal, void and wrongful on the following grounds :- (a) Industrial Dispute was pending between the Management and the petitioner-Union. The employees concerned were mostly, the office-bearers of the petitioner-Union and therefore, their dismissal without the permission of the Court was violative of section 47 of the Industrial Relations Ordinance, 1969. (b) The charge of going on illegal strike was not at all borne out by the facts. The employees were merely on a token protest. They were forcibly turned out of the hospital by the Medical Director with the help of the Police and his partymen. In spite of the intervention by Dr. Ghulam Hussain, M. N. A. And Javaid-ur-Rehman the then Special Assistant to the Governor, the 8 employees concerned were not allowed to resume their duties. (c) The charge of the employees being disorderly and riotous was baseless not borne out by the facts. (d)That the Enquiry Officer was partial and biased against the employees and the enquiry proceedings were thus vitiated. (e) The employees concerned were not afforded an opportunity to explain the charges levelled against them and to produce their defence. The enquiry was conducted ex parte against them. 3. The Management of United Christian Hospital i. e. The respondent resisted the application vehemently and besides resulting the allegations on merits raised the following preliminary objections :- (1)The petitioner-Union had no locus standi to file the present petition as it was illegally constituted, inasmuch as, its constitution was in violation of the provisions of section 7(d) of the Industrial
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Relations Ordinance. (2)Application under section 25-A was not also maintainable for the reason that the provisions of section 25-A (1) regarding the service of the grievance notice were not complied with. (3)The United Christian Hospital was not an industry within the meaning of the Industrial Relations Ordinance or an Industrial and Commercial Establishment within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, this Court had no jurisdiction to entertain the present petition nor the same was legally maintainable. 4. As regards the respondent's objection that the pet boner had no locus stand' to file the present petition, inasmuch as, it was not legally constituted, it appears that the respondent has based this objection on the provisions of section 7 (i) (d) which provides that the number of persons forming the executive shall not exceed the prescribed limit and shall include not less than seventy-five per cent. From amongst the workmen actually engaged and employed in the establishment or establishments of the industry for which the Trade Union has been formed. It is contended in this behalf that most of the petitioners who have since been dismissed still continued to be the office- bearers of the petitioner-Union. They being no more workmen actually employed in the United Christian Hospital, the percentage increased the authorized strength as provided in clause (d) of section 7 (1) ibid. P. W. 10 Amanul Dass one of the dismissed employees stated that the office- bearers of the Union were the same who were office-bearers at the time of trouble. He could not tell as to how many officer-bearers were still in the employment of the hospital. He, however, admitted that the President, General Secretary, Treasurer and a few members of the executive committee were dismissed. P.W. 12 Mr. Wilson Rahim Bakhsh who is also one of the dismissed employees and is the General Secretary of the petitioner-Union has stated that Mr. Robert Dass was the President of the Union, the witness was the General Secretary, Mr. Naimat Sher was the Treasurer, Mr. Stiphen Paul was the Propaganda Secretary, M/s. Maqbool, Albert, Mukhtara, Victor Denial, Sarfraz Manual, Rashid, Kanwal, Manzoor and Ghulam Masih were the members of the executive committee. He further stated that these persons continued upto date to be the office holders of the Union. He stated that after January, 1972 no election of office-bearers was held. Mr. Mohammad Amin Alvi a senior clerk of the office of the Registrar, Trade Unions, Lahore has been examined as P. W. 13. He stated that according to the record maintained in the office of the Registrar, Trade Unions there were 9 office-bearers and 19 members of the executive committee, in all totalling 28 officer-bearers of the petitioner-Union. He produced Exh. P. 60 the copy of the list of officer-bearers including the members of the executive committee. The contents of the list Exh. P. 60 indicate that in all there are 28 office-bearers of the petitioner-Union including 19 members of the Executive Committee. 8 employees in respect of whose dismissal the present application has been brought are included in this list. They are Robert Dass, President, Wilson Rahi Bukhsh, General Secretary, Naimat other Treasurer, Stiphen Paul Propaganda Secretary and Albert Maqbool, Lawrance Lazrus and Amanual Dass members of the executive committee. These dismissed employees still continued to be the-office bearers of the petitioner-Union. It thus transpires from the evidence produced by the petitioner-Union itself that on 28-8-72 when the present petition was filed by the petitioner-Union, the executive of the petitioner-Union included 8 persons who were the dismissed employees of the U. C. H. If these persons are not to be deemed as workmen actually engaged or employed in the establishment as envisaged in section 7 (i) (d) the result would be that the executive of the petitioner-Union would be having more percentage of non- workers than what is permitted by law. Brooke Bond Workers' Union v. MI s. Brooke Bond (Pak.) Ltd., Karachi it was held that where more than 25% of the total number of the officers of the Union were persons who were not for the time being employed or engaged in the respondent's industry with which the Union was concerned, a strike notice given by such Union and conciliation proceedings founded on such a strike notice were null and void and the industrial dispute was liable to be1
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dismissed. As a matter of fact the above authority cited by the learned counsel for the respondent does not deal with the point that if the dismissed or discharged workers are to be treated as outsiders and not actually engaged this authority is, therefore, distinguishable on facts. On behalf of the petitioner-Union, reliance has been placed on Standard Printing Press, Karachi v. Workers' Union. In this case the honourable Appellate Tribunal of Sind has held that the words "actually engaged" have been used in contrast to an outsider and not a person dismissed or discharged or retrenched as mentioned in the definition of worker in section 2 (xxviii) of the I. R.0. Most respectfully following the afore-mentioned judicial precedent we find that the petitioner-Union cannot be treated as invalidy constituted merely because that at the time of filing of the under-consideration petition its executive included 8 workers who were by that time dismissed. The objection is therefore, overruled. ' So far as the second objection of the respondent before instituting the present petition the petitioner to serve the grievance notice as required, it is observed that P. W. 1 Mr. Robert Dass has stated that on 18-8-72 he and other dismissed employees gave notice under section 25-A to the Medical Director by hand. His peon received the notice and gave signature. The receipt Exh. P. 2 has been produced in this behalf, according to Mr. Robert Dass, Yousef Masih had signed the receipt in his presence. The witness repudiated the suggestion that no notice under section 25-A was given and that the story of giving of notice had been concocted after the respondent took objection in the reply statement in that respect. It is noteworthy, there is, mention of the service of grievance notice in the present petition. Surprisingly Mr. Robert Dass in the examination-in-chief stated that notice was given to the Medical Director by hand by obtaining the signatures of his peon on receipt Exh. P. 2 but in the cross-examination, he stated that notice was given by him to the Chairman, Board of Directors. P. W. 12 Mr. Wilson Rabim Bakhsh who is the General Secretary of the petitioner- Union has given a different account of the matter. He has stated that the Union gave single notice in respect of the dismissed employees. The grievance notice was given by this witness (Wilson Rahim Bakhsh, General Secretary) in person and he obtained the receipt in diary. In the cross- examination he stated that he had delivered the grievance notice to Bishop Anayat Masih Chairman, Board of Directors. He further admitted that the employer of all the dismissed persons was the Medical Director but the notice was delivered by this witness to the private servant of Bishop Anayat Masih whose name the witness had forgotten. Exh. P. 59 has been produced as copy of the notice. Exh. P. 2 purports to be type written acknowledgment which reads:- "ACKNOWLEDGMENT ' Bishop Anayat Masih. ' Received a letter under section 25-A (3), I. R. 0. From the U. C. H. Employees' Union, Gulberg-III, Lahore. (Sd.) Yousaf Masih ' Dated 19th August 1972." ' Under the word 'acknowledgment' and above the words received a letter the words "Bishop Anayat Masih are written in manuscript in blue-black ink. Against the word signatures the name of Yousaf Masih in Urdu in red pencil is written. Between the words dated 1972, the figures 19th August, 1972 in red are inserted. This receipt is pasted on the peon book purporting to be of U. C. H. Employees' Union. The first entry in this book is dated 21st September, 1970 and the last entry other than the Acknowledgement in question is No, 209, dated 18th August, 1972, vide this last entry a communication addressed to Rev. J. S. Q. Bakhsh was received by somebody whose signatures are not legible on 19th August, 1972. It is also noteworthy that all the entries in this peon book are duly entered in the appropriate columns. The last column is in respect of Acknowledgment and in this column the persons who received the letters communications have fixed their signatures. The only exception is acknowledgment, Exh. P. 2 which is pasted on the peon book and otherwise finds no2
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mention in the appropriate column of the peon book. Yousaf Masih who is alleged to have received the grievance notice,-vide this acknowledgment has not been examined to acknowledge the signature on Exh. P. 2. Bishop Anayat Masih has also not been produced to state that he actully received the grievance notice. Exh. P. 59 purports to be copy of the grievance notice. It is however titled as an application under section 25-A (3) of the Industrial Relations Ordinance, 1969 read with Standing Order 12 framed under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, against the dismissal orders passed by Medical Director against 8 members of the Union. This application purports to have been addressed to Board of Directors, U. C. H. Gulberg- III, Lahore. This is a type-written application consisting of 7 pages typed on one side of such leaf. On this so-called office copy of the notice there are no signatures of the person who received the notice and there is no indication to the effect as to when and to whom this application notice was delivered, From the aforesaid evidence produced by the petitioner-Union about the service of the grievance notice, we arrive at the following conclusions :- (1) There is no mention about the alleged service of the grievance notice in the application filed in the Court. (2) Mr. Robert Dass President of the Union who appeared as P. W. 1 in the examination-in-chief stated that the notice was delivered by him by hand to the Medical Director, Dr. Benjamin and the receipt was signed by Yousaf Masih the peon of the Medical Director. In the cross-examination he has given a different version by deposing that the notice was sent to the Chairman. (3) Mr. Wilson Rahim Bakhsh, the General Secretary of the employees' Union contradicting Mr. Robert Dass stated that the union gave notice to Bishop Anayat Masih, Chairman, Board of Directors. The notice was given to some private servant of Bishop Anayat Masih whose name the witness had forgotten. (4) The acknowledgment Exh. P. 2 is quite unusual unlike all other entries in the peon book in which it is pasted. It is typed written. The names of Bishop Anayat Masih and of one Yousaf Masih are written in black ink and read pencil. (5) Bishop Anayat Masih and Yousaf Masih who allegedly signed in token of having received the notice have not been produced to prove the service of the notice. (6) The contents of Exh. P. 59 the copy of the alleged grievance notice do not in any manner indicate that the original was served on the Board of Directors to which the notice purports to have been addressed. 6. It clearly follows that the petitioner-Union has utterly failed to prove the service of grievance notice on the respondent before institution of the present application. Section 25-A (1) of the I. R.0. (as it was at the relevant time) provides that a worker may bring his grievance in respect of any right guaranteed or secured to it by or under any law or award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or Trade Union, within three months of the day on which the cause of such grievance arises. In Saleem Sons' case it was held that the provisions of Standing Order 18 (b) in respect of service of grievance notice are mandatory. In Nasim Silk Industries' case his Lordship Mr. Justice Dorab Patel of Sind Baluchistan High Court held that the provisions of section 25-A are pari materia with Standing Order 18(b), therefore non-compliance of the provisions of section 25-A (1) was fatal to any proceedings under the said section. Similar view has been taken by the Sind Labour Appellate Tribunal in Buwani Industries Ltd. v. Abdullah. 7. In the light of what has been said above it is concluded that in the circumstances of the under consideration case the petitioner-Union failed to comply with the mandatory requirements of service of grievance notice on the employer before the institution of the under consideration application under B section 25-A and such non-compliance is fatal to the present petition which is3 4 5
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thus, liable to be dismissed on this short ground. This preliminary objection raised by the respondent is accordingly upheld. 8. Third legal preliminary objection, which has been raised by the respondent in the crude reply statement as an additional preliminary objection is to the effect that the U. C. H. Was not an industry within the meaning of the I. R. 0. Or an Industrial and Commercial Establishment within the meaning of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and therefore the Labour Court had no jurisdiction to entertain the present petition and the same was thus not legally maintainable. The expression "Industry" according to clause (xiv) of section 2 of the I. R. O., 1969 means any business, trade, manufacture, calling, service, employment or occupation. This definition is wide enough and embraces within its purview calling, service, employment and occupation which may have no similarity with business, trade and manufacture. In A. F. Ferguson & Co. v. 5th Sind Labour Court, Karachi and another the Sind & Baluchistan High Court has held that the definition of the expression "industry" as contained in section 2(xiv) of the I. R.0. Is wide enough to include all the professions including the learned profession of chartered accountants. In this case their Lordships of the Sind-Baluchistan High Court in their detailed judgment traced the history of this definition right from the time of the enforcement of the Industrial Disputes Act, 1947. In the said Act in section 2(j) it was provided that "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation for avocation of workmen. This definition of the expression `industry' was retained both in the Industrial Disputes Ordinance, 1959 and the West Pakistan Industrial Disputes Ordinance, 1968 and even in the Industrial Relations Ordinance, 1969 as originally enacted the definition was the same. It is therefore very clear that the definition as it so stands marks a complete break with the past. 9. It is noteworthy that in this case the Sind & Baluchistan High Court further held that it was true that a line would have to be drawn in fair and just manner so as to exclude some callings, trader or undertakings. If all the words used are given their widest meanings, all services and all callings would come within the purview of the definition ; even services rendered by servant purely in a personal or domestic matter or even in a general way should fall within the definition. It is not and cannot be suggested that in its wide sweep the word service is intended to include services howsoever rendered, in whatever capacity and for whatever reason. A line has therefore to be drawn somewhere in every definition, but the question where that line has to be drawn must depend on the definition and the statute in which the definition occurs. 10. In the circumstances of the under consideration case the respondent is the United Christian Hospital Lahore. This hospital is being run by a society registered under the Societies Registration Act, 1860. The objects of the society according to the constitution of U. C. H. Inter alia are to establish and maintain a hospital for the care of the sick and for prevention of diseases with equal benefits to all without reference to race, class or creed ; to provide educational facilities as far as resources permit for those preparing to serve by the care of the sick, of the prevention of the disease or the promotion of health ; and to promote enquiry and research as far as resources permit into matters concerning health and disease and whatever may contribute thereto. It is also provided that no member of the Board of Directors shall receive any payment in return for his service as a member of the Board of the Directors except that he may be decompensated for out of pocket expenses incurred in connection with the attendance at meetings of the Board provided further that the employees of the Board of Directors who are by virtue of office or election made members of the Board shall not be considered to be drawing their regular salaries as members of the Board of Directors.6
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11. There is sufficient oral as well as documentary evidence on the record to suggest that in this hospital fees are charged from patients who receive treatment from this hospital. The charges of this hospital are certainly higher than other government and charitable hospitals in the country. In July, 1969 Air Marshal Noor Khan the then member of council of administration submitted a Labour Policy to the Government of Pakistan on 5-7-1969. In this Policy in its para. 6 it was recommended that for the growth of Trade Unions the restriction on the rights of association of employees of hospital be removed. It was further pointed out in para. 14 of the Policy that the Legislative restriction placed on the personnel of hospital in joining Trade Unions retarded the growth of Trade Unions and it needed to be done away with. This policy appears to have been incorporated in the legislative changes in the law dealing with Industrial Relations as contained in the Industrial Relations Ordinance, 1969. The wide embracing definition of "industry" as contained in section 2(xiv) of the I. R.0. Would appear to be the result of the aforesaid Labour policy. 12. Seen in this perspective and keeping in view the fact that in the U. C. H. Pretty high fees and other expenses are charged for treatment given in this hospital it is an industry within the meaning of section 2(xiv) ibid. Reliance on behalf of the respondent is placed on the judgment of the Indian Supreme Court in the well known case of the…
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