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(a) Industrial Relations Ordinance (XXIII of 1969)‑--

--‑‑Ss. 2 (xxviii) & 25‑A and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (i)‑‑‑Workman‑Employee designated as Confidential Stenographer‑‑ ,;.fit Checking attendance of subordinates and sanctioning their leaves- Performing no duties of shorthand and type‑Getting salary of Rs. 2,000 p. m.‑‑‑Performing duties of managerial and supervisory nature‑Not a workman either under Industrial Relations Ordinance, 1969 or West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968‑Could not file grievance petition before Labour Court.

(b) Industrial Relations Ordinance (XXIII of 1969)---‑

--‑‑Ss. 25‑A & 37‑Appeal before Appellate Tribunal‑Labour Court awarding re‑instatement of workman but permitting employer to hold fresh inquiry‑ Implementation of order of Labour Court in re instating workman and holding fresh inquiry, held, does not debar employer from challenging vires of order of Labour Court in appeal.

Naeem Bokhari for Appellant..

Ch. Sadiq Muhammad Warraich for Respondent.

Date of hearing : 31st October, 1981.

This appeal arises from the decision dated 13‑7‑1980 passed by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi; whereby the grievance petition of the respondent was accepted and he was directed to be re‑instated in service with permission to the appellant to hold enquiry in the matter. It was further directed that back benefits would follow the result of the enquiry.

2. The respondent has filed cross‑objections challenging that portion of the impugned decision where‑by the appellant was permitted to hold an enquiry and the direction that back benefits would follow the result of the enquiry. He has claimed in the cross‑objections back benefits also.

3. The respondent has made a separate application also praying the dismissal of the appeal on the ground that only an aggrieved party can file appeal under section 37 (3) of the Industrial Relations Ordinance, 1969 and that as the appellant acted upon the impugned decision of the lower Court by making an enquiry against tile respondent and dismissed him again, he could not bring the appeal It is urged that by accepting the impugned decision, the appellant could not turn back and bring the appeal.

4. The facts are that the respondent was a Confidential Stenographer of the Field Manager of Attock Oil Company. On 4‑4‑1978 he went on ex‑Pakistan leave to Saudi Arabia for three months. On 1‑7‑1978 he applied from Saudi Arabia for the extension of leave for three months more vide application Exh R‑20, urging that leave for three months and 19 days was still to his credit. Leave application was, however, rejected on the ground that there was no leave to his credit. Reply could not be sent to the respondent on the plea that he had not given his address at Saudi Arabia. On 9‑9‑1978 he resumed duty. On 22‑10‑1978 his services were terminated for the reason that he had remained absent for more than 10 days. The order of termination is Exh. P‑1. After service of grievance notice dated 31‑10‑1978 Exh. P‑2, the respondent brought the grievance petition on 13‑1‑1979.

5. The appellant under the permission of the lower Court made an enquiry and dismissed the respondent. Thereafter, he brought a petition under section 25‑A challenging the order of his dismissal, which has been dismissed by the Labour Court vide. its order dated 22‑9‑1981.

6. The main question involved in this case is whether the respondent comes within the definition of workman given in section 2 (xxviii) of the Industrial Relations Ordinance, 1969 and section 2 (i) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The case of the appellant is that the respondent was performing the duties of supervisory nature and his emoluments being more than Rs. 800 he was excluded from the definition of workman given in the Industrial Rela tions Ordinance, 1969. It has also been argued that he in view of his duties is not covered by the definition of workman given in section 2 (i) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Admittedly, the monthly pay of the respondent was Rs. 2,000. He had been provided rent free house and three servants at the company expenses. So far as his duties are concerned, reliance has been placed upon various documents, which will be discussed presently. So far as oral evidence is concerned, the respondent appeared as his own witness as P. W. 1 and on behalf of the appellant Mr. Abdul Aziz, Supervisor Clerk‑cum‑typist was examined. The respondent stated that at the time he was terminated he was Stenographer and his duties were to take shorthand notes and to do typing. According to him, he used to maintain files, leave records and attendance register. 13e also said that he used to receive and despatch correspondence and to attend telephone of the Field Manager, being Personal Assistant to him. He also said that he used to do the private work of the Field Manager, such as handling of cheques and cash.' It is strange enough to see that he said that he used to carry the luggage of the Field Manager from the car and to put it back in the car. and bring water and tea for him. He further stated that he did not do any supervisory duties and neither could sanction leaves nor impose any punishment. In cross‑examination he admitted his signatures on Exh. R‑1, but did not admit that the persons named in the said documents were subordinate to him. He admitted that he used to sign attendance register after checking it. He. however, denied that Mr. Abdul Aziz, Supervisor, Mr. Iftikhar Ahmad and Mr. Muhammad Ashraf, Office Boys, and Mr. Muzaffar Khan, Sweeper were his subordinates. He admitted his signatures on leave applications Exs. R‑2/1 and R‑2/2, but denied that he had sanctioned those applications. He admitted that these applications did not bear the signatures of any other officer. He admitted his signatures on his appointment letter Exh. R‑3 and service agreement Exh. R‑4. He admitted his signatures on requisition letters Exs. R‑5 to Ft‑18: He admitted that he had a telephone in the office and residence, but added that the same was on behalf of the Field Manager. He denied that it was his duty to write D. O. Letters to other officers. He also denied that he used to perform only confidential work of the Field Manager, comprising of only two letters in a week. He denied that he was Canteen Manager, but admitted his signatures on Canteen register Exh. R‑19. He added that the General Assistant to the Field Manager was performing the duties of the Canteen Manager and during the period he signed the register the Canteen Manager was away. He admitted that three servants were provided to him, but did not admit that his entitlement was equiva lent to senior officers. He admitted that he was provided with a partly furnished one bed accommodation. The evidence of Abdul Aziz (R. W. 1) is to the effect that the respondent was office incharge ; he used to mark attendance ; sanction leave applications, read five newspapers daily to find out if any news about the company had occurred, to bring it to the notice of the higher authorities, used to pass orders of the Field Manager to other officers and to perform over‑all checking. He further said that the respondent was not doing any despatch work and that he was entitled to receive benefits equal to provincial grade‑1. He also said that the respondent was entitled to travel by air, while on duty or for proceeding on leave. He also said that he (the witness) used to maintain accounts of the Canteen and the respondent used to check it and that he. Mr. Iftikhar, Mr. Muhammad Ashraf, Mr. Muzaffar and Mr. Akbar Javed were subordinates of the respondent and their leave applications were sanctioned by him. He also said that the respondent used to perform confidential typing work of the Field Manager consisting of one or two letters only. He lastly stated that in the capacity of officer, the respondent recommended his promotion, whereupon he was promoted. He also stated that once he was reprimanded verbally on the report of the respondent. In cross -examination he admitted that he was running in 56 years of age and that after the age of 55 years, the employees are medically examined every year and their services are extended. He admitted that on 31‑12‑1979 he was medically examined and granted extension, on the fitness certificate of the company's doctor. He repelled back the suggestion that on the previous date of hearing he had offered to depose falsely against the respondent on the consideration of getting extension. He produced leave applications Exs. R‑2/1 and R‑2/2 sanctioned by the respondent. On re‑examination he deposed that the applications Exhs. R‑2 to R‑2/2 did not bear the signatures of any other officer, except the respondent.

7. Let us examine the documents produced by the appellant to see if the respondent was merely a typist van officer. Ex R‑1 is the copy of the attendance register showing that the respondent had put his signatures on every day by way of checking the attendance of the staff. Exs. R‑2 to R‑2/2 are the leave applications bearing the signatures of the respondent and of no other officer. Ex. R‑3 is the service agreement of the respondent. This service agreement pertains to three years' period from 1st January, 1975 to 31st December, 1977. He is mentioned as Confidential Stenographer. According to condition No. 5, his pay for the first year was Rs. 1,053 per mensem, second year Rs. 1,245 per mensem and for the third year Rs. 1,329 per mensem. At the time of his termination his pay was Rs. 2,000 per mensem, which he admitted in his statement. Exh. R‑4 is the memo randum of the agreement of the service of the respondent for the period from 1st January, 1963 to 31st. December, 1965._ According to this agreement his pay for the first year was Rs. 413 per mensem, for the second year Rs. 440 per mensem and for the third year Rs. 468 per mensem. Exh. R‑5 to R‑18 are the requisition orders for the demand of certain articles for the company and they all bear the signatures of the respondent. Exhs. R‑19 to R‑19/2 are the canteen record, every item of which, bears the signatures of the respondent. The respondent did not produce any docu mentary evidence in support of his assertion that he used to maintain files, leave records and attendance register, receipt and despatch corre spondence and to take shorthand notes and to do typing. Rather Exh. R‑1, copy of the attendance register, shows that he had been checking the attendance and not that he was maintaining the attendance register. If he had been taking shorthand notes, he could have summoned the used books of shorthand in support of his assertion. Likewise, he could summon the files, leave records and correspondence alleged to have been maintained by him. This is not believable that being a Confidential Stenographer or an officer, he used to carry the luggage of the Field Manager from the car to the office and from the office to the car. Likewise, this is not believable that he himself used to serve water and tea to the Field Manager. From the oral and documentary evidence surveyed above, it is apparent that the respondent was not doing clerical or manual work, but in view of his handsome pay of Rs. 2,000 per mensem, facility of telephone at his residence, free residence, three servants and duties of managerial and supervisory nature ; he was not a workman, but a supervisor and thus falling under exceptions (a) and (b) to clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1969, was excluded from the definition of workman. As he is not covered by the definition of workman given in section 2 (i) of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it cannot be said that he had any right guaranteed or secured by the said Ordinance. Not being a workman, he could not bring the grievance petition to the Labour Court.

8. The respondent has filed cross‑objections and a miscellaneous petition, praying for the dismissal of the appeal of the appellant. The objection is that by starting enquiry under the direction of the Labour Court, the appellant accepted the impugned decision and, therefore, could not challenge it in appeal. Considering the re‑instatement of the respondent as without jurisdiction for the reason that he was not covered by the definition of workman, the decision of the lower Court has been challenged in this appeal. The enquiry was started and the dismissal order was passed by the appellant without waiting for the decision of this appeal in order to get rid of the respondent, who under the impugned decision of the lower Court had become entitled to re‑instatement. Since the appellant did not want to retain the respondent in service, they were justified to start enquiry in compliance with the impugned decision of the lower Court even though they were considering that the impugned decision was not maintainable. If no enquiry had been held and dismissal passed thereon, the appellant had to retain the respondent in service. In my view by starting the enquiry under the impugned decision of the Labour Court, the appellant was not debared from challenging the vires of the order in appeal.

9. The other objection taking in the cross‑objections is that the lower Court should have allowed back benefits also. Since without holding enquiry, the previous order of termination had been passed, therefore, the lower Court was justified in not allowing back benefits sad directing that the question of payment of back benefits would follow the result of the enquiry. The other objection is that the enquiry has not been held by Messrs Attock Oil Company but by the appellant, who had no jurisdiction. It is also urged that the appellant is not competent to file the appeal. The appellant is the successor of Messrs Attock Oil Company, therefore, they were entitled to make enquiry in compliance with the order of the lower Court and also to challenge the said order in appeal. With these observations cross‑objections and the miscellaneous petition brought by the respondent are rejected.

10. As the respondent is not covered by the definition of workman given in Standing 6rders Ordinance, 1969, and the Industrial Relations Ordinance, 1969, there was no right guaranteed to him by any law and the lower Court was not a forum to redress his wrong. The appeal of the appellant is accepted and setting aside the impugned decision of the lower Court, I dismiss the grievance petition of the respondent.

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