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Appeal No. RI‑614 of 1980/Pb., decided on 30th November, 1981.

(a)

West Pakistan

--‑‑S. 2 (i) and Industrial Relations Ordinance (XXIII of 1969), Ss. 2 (xxviii), 25‑A & 38 (3)‑"Workman"‑Confidential Stenographer checking attendance of staff' attached to him, recommending their promotions, performing duties of Canteen Manager, doing no clerical or manual work, drawing monthly salary of Rs. 2;000 provided free residence with telephone and three servants‑Duties of managerial and supervisory nature‑Not a workman‑Cannot seek remedy of grievance petition before Labour Court‑Labour Court accepting grievance petition against termination of service awarding re‑instate ment‑Decision of Labour Court, in circumstances, set aside by appellate Tribunal.

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

--‑‑Ss. 25‑A & 37 (3)‑Grievance petition against termination of service accepted by Labour Court awarding re‑instatement with permission to employer to hold inquiry‑Starting inquiry by employer after re instating worker, in circumstances, held, does not debar employer from challenging vires of order of Labour Court‑Contention that having acted upon and accepted decision of Labour Court by making enquiry employer could not turn back and bring appeal‑Rejected.

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

--‑‑Ss. 25‑A & 38 (3)‑Re‑instatement‑Back benefits‑Termination of service without holding inquiry‑Labour Court awarding reinstate ment with permission to employer to hold inquiry‑Order of Labour Court not allowing back benefits and directing that back benefits to follow result of inquiry, in circumstances, held, justified and upheld by Appellate Tribunal.

Naeem Bokhari for Appellant.

Ch. Sadiq Muhammad Warraich for Respondent.

This appeal arises from the decision dated 13th July, 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 whereby 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 for 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 the respondent and dismissed him again be 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 Steno grapher of the Field Manager of Attock Oil Company. On 4th April, 1978 he went on ex‑Pakistan leave to Saudi Arabia for three months. On 1st July, 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 9th September, 1978 he resumed duty. On 22nd October, 1978 his services were terminated for the reason that he hat] remained absent for more than 10' days. The order of termination is Exh. P‑1. After service of grievance notice dated 31st October, 1978 Exh. P‑2; the respondent brought the grievance petition on 13th January, 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 22nd September, 1981.

6. The main question involved in his case is whether the respon dent 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 & 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 Relations 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's 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 his services were 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. He also said that he used to receive and despatch corres pondence 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 Exhs. R‑5 to R‑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 equivalent to senior officers. He admitted that he was provided with a partly furnished one bed accommodation. The evidence of Abdul Aziz (RW‑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 overall 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 sub ordinates of the respondent and their leave applications were sanc tioned 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 31st December, 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 bad offered to depose falsely against the respondent on the consideration of getting extension. He produced leave applications Exhs. 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 or an officer. Exh. 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. Exhs. R‑2 to R‑2/2 are the leave applications bearing the signatures of the respondent and of no other officer. Exh. 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. 1,083 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 memorandum 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. 4,13 per mensem, for the second year Rs. 440 per mensem and for the third year Rs. 468 per mensem. Exhs. R‑5 to R‑13 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 documentary evidence in support of his assertion that he used to maintain files, leave records, attendance register, received and despatched correspondence, 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 of 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, 1968, was excluded from the definition of workman. As he is not covered by the definition of workman given in section 2 (1) of the W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1961,, 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 reinstatement. 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 debarred from challenging the vires of the order in appeal.

9. The other objection taken 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 and 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 jurisdic tion. 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 the cross‑objections and miscellaneous petition brought by the .respondent are rejected.

10. As the respondent is not covered by the definition of workman given in Standing Orders Ordinance, 1968 and the Industrial Relations Ordinance, 1969, there was no right guaranteed to him by any law and tit 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.

A. E. Appeal allowed.

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