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Appeal No, 1973 decided on 3rd May 1973.

-- S. 2(xxvili) [as existed prior to amendment vile Industrial Relations (Amendment) Ordinance (XLVIII of 1972) promulgated on 10-11-1972] Supervisor performing duties in supervisory capacity-Falls within definition of "workman".

(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-

--- S. Os. 12 & 15 - Termination of services - Provisions of S. O. 15 - Mandatory. - Termination of service of permanent worker-Failure to comply with requirements of charge-sheet and enquiry, held, not only violative of S. O. 15 but also of principles of natural justice-Termination due to misconduct-S. O. 12 not applicable-Payment of one months' notice pay not sufiicient Workman must be charge-sheeted and afforded opportunity of explana tion-Non-compliance with requirement of S. O. 15, held, would render termination illegal.

Wasi Ahmed for Appellant.

M. A. Khan with Hafiz for Respondent No. 2.

This is an appeal against an order dated 7-4-73 passed by Presiding Officer, Junior Labour Court No. VIII, Karachi whereby he dismissed applica tion under section 25-A, Industrial Relation Ordinance, 1969. 2. The facts giving, rise to this appeal are that the appellant was permanent worker of the respondent-Organisation since 21-6-1971. Initially, the appellant was designated as Purchase Assistant. On 29-6-72, his designa tion was altered as "Store Account Supervisor" on reduced pay. The appellant made a protest against this action. This caused annoyance to the Master who terminated his service on 18-10-72 without complying with the mandatory provisions of S. O. 15 of Standing Orders Ordinance, 1968. Subsequently, the appellant instituted an application under section 25-A of 1. R. O. before Junior Labour Court No. VIII Karachi, praying for re-instatement in service with back benefits. His application was dismissed on 23-1-73. He preferred an appeal against the order of the lower Court before this Court. The case was remanded back with cross direction to allow cross-examination of witness and allow parties to lead evidences. After taking evidence of the parties the learned Presiding Officer of the Junior Labour Court No. VIII, Karachi (Mr. Nayer Bari) finally disposed of the matter and dismissed application under section 25-A of I. R. O., 1969 by his order dated 7-4-73. Against this order the appeal is being preferred.

3. It has been argued by the learned representative for the appellant Mr. Wasi Ahmed that the learned lower Court did not apply its mind to the facts and law of the case and misquoted the facts and decided it in a slip-shod manner. He gets support from the learned representative of the other side who concedes in his argument that the lower Court has given wrong facts and quoted irrelevant law and its order is not sound. He further argued that he supports lower Court order only on the point that the appellant is not a "workman" within the meaning of I. R. O. Continuing his arguments he said that he has no objection if the case i s again remanded back to another Junior Court to re-write the order on the material on record. I do not agree with the suggestion of again remanding back the case as it would cause great hardship on the parties, particularly the appellant, and would protract and delay the proceedings.

4. It would be useful to reproduce a few lines from the order of the learned Presiding Officer Junior Labour Court No. VIII, in order to dispose of the contentions of the learned representatives of the parties. The relevant observations are contained in the para. on page 4 and last para. on page 5 of the order and they read as under:-

"To the contrary the respondents have stressed that the services of the applicant were terminated in April 1972 whereas the amendment to the labour laws came in November, 1972 and in the definition envisag ed in the previous Ordinance the applicant does not qualify to be a workman under section 25 (a) .. .

"Reviewing the contention of both the parties my considered evaluation is that the applicant as such does not fall within the purview of a workman as enun ciated in Industrial Relations Ordinance. He cannot utilize the present I. R. O. as his services were terminated earlier to that. Moreover, he has accepted the full and final settlement of his claim. The arguments of the respondents carry weight as the applicant has been paid compensation and relationship between master and servant remain between the parties and accordingly he has been paid the benefits, which accrued, to him as a servant viz., the salary etc. Thus I dismiss this application moved under section 25-A, I. R. O. for the reasons mentioned above and replying on the argument of the respondents".

5. The learned lower Court has dismissed application under section 25-A of 1. R. O., 1969 on three grounds, viz. (1) that the applicant/appellant is not a "workman" within the meaning of Industrial Relations Ordinance, (2) that his services were terminated earlier, (3) that the appellant has accepted he full and final settlement of his claim or he has been paid compensation as there being relationship of Master and Servant between them.

6. The learned Presiding Officer has misread the record and given wrong date of the termination of the services of the appellant. It is an admitted position that the services of the appellant were terminated on 18-10-72 but not in April, 1972. The evidence on record and termination letter Exh. 1/A as well as the learned representatives in their arguments say that the appellant's services were terminated on 18-10-1972 but not in April 1972. Even the lower Court in his previous order has mentioned the date of his termination of services as 18-10-72.

7. The first main point is whether the appellant is "workman" as defined in Industrial Relations Ordinance, 1969 In order to invoke jurisdic tion of a Labour Court it is necessary to see if the appellant was a "workman" within the definition of S. 2 (1)(xxviii) of Industrial Relations Ordinance, 1969. The definition of "workman" was altered at different stages by framers of law. It is admitted position that the appellant was "Store Accounts Supervisor" from 29-6-72 till the date of his termination of services, viz. 18-10-72. Section 25-A for the first time was introduced by Ordinance IX of 1972 on 13^th April 1972 and it contains five subsections. Later on 10th November 1,472 subsection (6) was added by Industrial Relations (Amendment) Ordinance, 1972. Before introduction of section 25-A in the Ordinance an individual worker for his wrongful termination services had a remedy under SO. 18 (b) of West Pakistan Industrial and Commercial Employment, Standing Order Ordinance, 1968, S. O. 18 (b) was available to an individual worker from 1968 till 12-4-72. S. O. 18 (b) was repealed and the Legislature provided a remedy for an individual worker by inserting S. 25-A by Ordinance IX of 1972 in Industrial Relations Ordinance, 1969 as shown above. It is necessary to discuss further the remedies provided to an individual worker. The point in this case is which definition of workman in I. R. O. 1969 is applicable to the case of appellant. The appellant was removed from service on 18-10-72 and the relevant definition of workman in section 2 (xxviii) appeared from 13-4-1972 till 9-11-1972 as under :-

"Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute include a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-of, or removal has led to that dispute.

Explanation.-"Supervisor" means a worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties but no power to engage or remove, or take any other disciplinary action against another worker by his own authority.

Admittedly designation of the appellant was "supervisor". Evidence in record also establishes that his nature of duties and substantial part of his work was that of a supervisory capacity. Consequently, I hold that the appellant is a "workman" within the meaning and definition of Industrial Relations Ordinance, 1969.

8. As to the observation of the learned lower Court that the appellant has accepted full and final settlement of his claim or he has been paid compensation, it has been argued by the learned representative for the respondent that it is not the case of the respondent that the appellant has accepted full and final payment or he has been paid compensation and as such this observation is untenable.

9. It has been argued by the learned representative for the appellant that the appellant was not dismissed from service but his services were terminated on 18-10-72 and termination letter Exh. 1 /A shows that he was removed on account of his misconduct. I reproduce the termination letter marked Exh. 1/A dated 18-10-72 below:-

Mr. Aziz-ur-Rehman,

Supervisor,

Cost Accounts.

Ever since your transfer from Dandot to Karachi, you have been raising frivolous demands off and on but the Management has always been more than liberal to you and many of your unreasonable demands were also accepted solely with a view to get you settled down in your work. Although you had gone back on your assurance, incorporated in our office order dated 19-8-72, yet to accommodate you on compassionate grounds a subsequent order dated 7-9-72 was issued granting you more benefits. It was mentioned therein that as regards residential accommodation, the same was not available and that it will be considered as and when available but that too on merits alone. You and your father had accepted the same and in token of .you acceptance had signed the office order referred to above.

It is regrettable to note that in spite of this, you continued demanding W1allotment of a quarter whereas you were clearly told that the same was not possible. In order to harass and pressurise the management on 17-10-72 at about 8 p. m. yogi brought your household effect and plied them up at the main gate of the factory and started threatening to bring your wife and children for squatting before Company's gate and also to go on hunger strike. It is therefore established that you are not interested in continuing service with us. At the same time, you are guilty of acts subversive of discipline, as you have been attempting to intimidate the Management through various unfair means.

The Management therefore has no other alternative but to terminate your services with immediate effect.

You will however be entitled to one month's pay in lieu of notice period. You are now advised to call upon our Accounts Deptt. to clear your dues, if any.

(Sd.) S. M. H. Zaidi,

Asstt. Administrative Officer.

Thus the body and contents of the letter shows that his services were terminated on account of his "misconduct". S. O. 12 of West Pakistan Standing Orders Ordinance, 1968 provides that for terminating employment of a permanent workman for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. S. O. 12 does not apply to case of "misconduct'. In the instant matter the termination letter itself shows that the appellant's services were terminated being guilty of "misconduct". No. workman could be removed or dismissed from service without compliance of the mode and procedure as laid down in S. O. 15. In the instant matter the employer did not follow provisions of S. O. 15 and the appellant was not given an opportunity to explain the allegation levelled against him. He was not charge-sheeted nor domestic enquiry was held against him. The mandatory provisions of S. O. 15 were disregarded. The principle of natural justice requires that no one should be condemned without being given an opportunity to be heard. The appellant was condemned unheard. Consequently, I hold that the termination order dated 18-10-72 was illegal and not warranted by law.

10. For these brief reasons, I, therefore, am of the opinion that the learned lower Court has misappreciated and misread the evidence record and the impugned order dated 7-4-73 is clearly illegal and is therefore set aside. I allow appeal and order re-instatement of the appellant in service,- forthwith. I allow him full back benefits subject to the result of fresh enquiry to be held against him by the emplyoer.

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