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Appeal No. K AR-385 of 1982, decided on 18th November, 1982.

(a)

West Pakistan

---- Ss. 1 (4), 2 (i) & S. 0. 12 (3) read with Sind Agricultural Sup plies Organisation Ordinance (XXIV of 1972), S. 19-Exemption from application of provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968-Requirements -Establishment to be carried on by or under authority of Government and also to have statutory rules of service, conductor discipline- Law requiring Organisation to frame by Notification Regulations for terms and conditions of service of its employees-Mere decision to adopt Government Servants (Efficiency and Discipline) Rules does not make said rules as statutory rules so as to fulfil requirement for exemption of employees from provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 Assistant Budget Officer of Sind Agricultural Supplies Organisation- Performing himself his duties of clerical nature-Mere designation and emoluments exceeding Rs. 800 would not exclude him from category of workmen for purposes of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for being entitled to grievance petition against termination of service-Status as workman under Industrial Relations Ordinance, 1969-Not relevant for such purpose-Services terminated due to :misconduct simply on basis of show-cause notice under Sind Civil Servants (Efficiency and Discipline) Rules, 1973 stated to have been adopted, in a decision taken by Board of Organisation, in circumstances, held, not sustainable being violative of S. 0. 15 (4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in absence of any domestic enquiry and defence opportunity.

Johnson & Johnson v. Zubair Ahmad 1980 P. L C 622 rel.

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

---- S. 25-A (5)--Scope-Adjudication and determination of grievance petition-Labour Court to pass such order as may be just and proper in circumstances of case-Re-instatement--Back benefits -Termination of service on account of misconduct of absence from duty-Workman applying for leave and proceeding without proper sanction-Termination order held invalid on technical grounds- Fifty per cent. of back benefits allowed.

Ghulam Ally H. Agha for Appellant.

Iqbal Afridi for Respondent.

Date of hearing : 16th November, 1982.

DECISION

The respondent, who was employed as Assistant Budget Officer in Accounts Section, in N. P. S. Grade 16, plus other usual allowances, in the appellant organization, applied for two months' earned leave, with effect from 21st January, 1980 to 21st March, 1980. The ground stated in the said application for leave was that the respondent had urgent work out of Karachi. According to the respondent this leave was duly sanctioned to him but according to the .appellant organization, which is known as SASO, the leave was rejected. On the expiry of the said leave, the respondent did not resume his duties, as according to him his father was seriously ill at Khairpur and hence he had applied for extension of leave in order to be with his ailing father. The extension of leave asked for, however, appears to have been rejected by the appellant organization by letter, dated 9th April, 1980. After resumption by the respondent of his duties on 18th June, 1980, a show-cause notice was served upon him, on 24th July, 1980, under the provisions of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973,. which are said to have been adopted in the appellant organization. The respondent submitted his explanation, dated 2nd August, 1980, to the show-cause notice, but as it was not found satisfactory by the management of SASO his services were terminated vide order, dated 27th August, 1980, on the ground of his unauthorised absence from duties.

2. The respondent challenged the order of termination of his services through a grievance petition filed before the learned Fifth Labour Court. The SASO resisted the grievance petition on three grounds, firstly, that the Standing Orders were not applicable to it as it was an organization carried on by or under the authority of the Provincial Government of Sind, secondly, that the grievance petition of the respondent was not maintainable as he was not a workman for the purposes of the Standing Orders, and that finally the termination of service of the respondent was justified as he was unauthorisedly absent for a period of about 140 days. The learned Labour Court repelled the first two contentions of SASO and in regard to its third contention took the view that the respondent's services were termi nated without holding any domestic enquiry as provided in clause (4) of Standing Order 15. the termination of services of the respondent could not be sustained. It accordingly directed the re-instatement in service of the respondent, but in view of the prolonged absence of the respondent from his duties and the claim of the SASO that the absence was un-authorised it gave an option to SASO to hold a fresh enquiry within two months in accordance with law against the respondent and made that the award of back benefits to the respondent dependent upon the result of that enquiry. It appears that no such enquiry has been held against the respondent. Aggrieved by the decision of the learned Labour Court, SASO has come up in appeal to this Tribunal.

3. Mr. Ghulam Ally H. Agha, the learned counsel for SASO, assailed the impugned de-.ision of the learned Labour Court on three grounds, namely

(i) SASO is a Government run orgnanization and has statutory rules of service and as such the grievance petition of the respondent is not maintainable.

(ii) the grievance petition of the respondent is further not maintainable as the respondent is not a workman for the purposes of -the Stand ing Orders ; and

(iii) the misconduct of the respondent has been duly established.

4. In regard to the first contention of the learned counsel for SASO it may be pointed out that an establishment would be exempted from the application of the provisions of the West Pakistan Industrial and Commercial" Employment (Standing Orders) Ordinance, 1968, only if it met the twin requirements of being carried on by or under the authority of the Govern ment and also having statutory rules of service, conduct or discipline applicable to the workmen employed therein. The second requirement for exemption from the operation of the provisions of the aforesaid Ordinance was clearly not fulfilled by SASO at the relevant time. The SASO has been established under the Sind Agricultural Supplies Organization/Ordi nance, 1972. Section 19 of the said Ordinance empowers the Organization, by a Notification in the Official Gazette, to make regulations; for among other purposes, the determination of the terms and conditions of service of the officers and servants of the Organization. It is an admitted position that at the relevant time no regulations under the aforesaid provisions of law were framed and notified in respect of the terms and conditions of service, conduct. or discipline of the employees of the SASO. It was, however, sought to be argued by the learned counsel for SASO-that the SASO had adopted the Government Servants (Efficiency and Discipline) Rules and since these are statutory rules it should be deemed that statutory rules of service, conduct axed discipline are in force in SASO. In support of his contention, the learned counsel relied upon the extract from the Minutes of the Meeting of .the SASO Board held on 1st October, 1980. According to the extract the SASO Board had adopted the Sind Civil Servants (Efficiency and Discipline), Rules, 1973. Apart from the fact that this adoption and the meeting were after the Office Order, dated 27th August, 1980, by which the services of the respondent were terminated; the mere decision by the SASO Board to adopt the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, did not make the said rules statutory rule for the employees of SASO. The only mode by which the said rules could be deemed to be statutory rules for the employment of SASO, was through a regulation notified in the official Gazette as provided in section 19 of Sind Agricultural Supplies Organization Ordinance)' 1972. This has been subsequently done through it Gazette Notification of 6th April, 1981, which was shed in the Sind Government Gazette Extraordinary, dated 7th April, 1981. However; since at the relevant time no statutory rules were enforced in SASO the contention of the learned counsel for SASO must fail. It may be pointed out that in the case of Saadat Hussain Kazmi v. Deputy Director, Sind Agricultural Supplies Organization, dated 9th April, 1980, 1 had taken a similar view and observed as follows :--

"However, the second requirement for excluding the application of the Standing Order to its employees is that these should be statutory rules of service, conduct or discipline applicable to them. Section 8 of the above Act provides that the procedure for the appointment of officials in the service of the respondent organization and their terms and conditions of service shall be such as may be provided by regu lations. 1 specifically enquired from Mr. Noor Muhammad Bughio, the learned counsel for the respondent organization, whether any rules or regulations under the said Act have been framed regarding the service matters of the respondent organization. He frankly conceded that no such rules or regulation have been framed. The respondent organization also clearly is a "commercial" establishment for the purpose of the Standing Orders. As such the Standing Orders would be applicable to its employees."

5. It next falls to be considered whether the respondent is not a work man for the purposes of the Standing Orders and hence is not entitled to file and maintain a grievance petition against the termination of his services. It may be pointed out that it was held by this Tribunal in the case of Johnson & Johnson. v. Zubair Ahmad (1980 P L C 622) that only a workman as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968, 's entitled to file a grievance petition against the termination of his services and that further such grievance petitions have to be filed under the provisions of clause (3) of Standing Order 12 .read with section 25-A, I. R. O. The sole witness who was examined on behalf of the appellant organization is Mansoor Ali, their Administrative Officer. He has testified that at the time of his dismissal from service the respondent was working as Assistant Budget Officer in Grade 16 on monthly emolu ment of Rs.1,250 and further that he was working in administrative as well as supervisory capacities, controlling the accounts, supervision of stores, etc., and that he had a number of clerks working under him for this purpose The witness, however, did not produce the job description of the respondent though he admitted that such job description did exist nor did he produce any order or document indicating that any clerks or other staff' was working under the respondent. The witness also failed to enumerate or give details of the supervisory or administrative powers vested in or exercised by the respondent. The mere fact that the respondent was designated as Assistant Budget Officer or that he drew total emoluments exceeding Rs. 800 does not" exclude him from the category of workman for the purposes of the Standing Orders. What has to be considered is whether the respondent was employed or was required to perform duties involving manual or clerical work skilled or unskilled. The witness admitted in his cross-examination that the respon dent was working in the Accounts Section and that he was under the control of the Director Finance, who was overall Incharge of the Accounts Section Moreover the witness admitted that he was giving evidence not from personal knowledge but from the record: This record was not produced: The Appointment order of the respondent merely states that he was being appointed as Assistant Budget Officer in N. P. S. Grade 16 plus other allowances admissible. under the rules but does not detail the nature of his duties. The respondent himself in his evidence before the learned Labour Court stated that his duties were to work in the office and also to go to the field for the purposes of the budget. He asserted that his duties were of clerical nature and that he had no staff working under him It further appears that the respondent was a member of SASO Employees' Union, which is a registered union of workers under the I. R. O. Taking all the circumstances into consideration and particularly the circumstance that no staff' is apparently working under the respondent and that he has, therefore, to himself perform the duties assigned to him, it appears that the respondent is a workman for the purposes of the Standing Orders. The learned Labour Court has mis construed the legal position in considering the status of the respondent as a, worker under the I. R. O. and not under the Standing Orders.

6. A workman under the Standing Orders can be discharged from service on ground of misconduct only in the manner prescribed in Standing Order 15, as provided in clause (5) of Standing Order 12. In other words, an independent enquiry as envisaged in clause (4) of Standing Order 15, had to be instituted against the respondent before terminating his services on the ground of long absence from duties. Admittedly no such enquiry was held. As such the order terminating the services of the respondent is invalid as rightly held by the learned Labour Court.

7. As already indicated, the appellant organization has not held fresh enquiry against the respondent though an option was given to it to hold such enquiry within two months. Despite the failure of SASO to hold fresh enquiry against the respondent, it nevertheless has to lie considered whether the respondent is entitled to full back benefits. Subsection (51 of section 25-A)D 1. R. O., provides that in adjudicating and determining a grievance petition, the learned Labour Court shall pass such orders as may be just and proper iii the circumstances of the case. This clearly indicates that award of back benefits is not to be automatic even where termination of services is found to be invalid. In -the instant case, the respondent originally applied for two months leave. In support of his contention that this leave was granted to him, the respondent has filed a photostat copy of his learned application bearing certain endorsements thereon. It has not been explained by the respondent how he obtained this photostat copy. In any case,, there is no reliable evidence to establish that this is the application which he had made for grant of leave and the endorsements thereon are of the officers of the appellant organization and that particularly the endorsement "sanctioned" is of the officer competent to grant leave to him. If in fact leave had been sanctioned to the respondent, such intimation would have been given to him in writing. The fact that he did not produce. the intimation of grant of leave to him indicates that leave was perhaps not granted to him. It might also be pointed out that it is the case of the appellant organization that the leave applied for by the respondent was not granted to him. Even if somehow it be assumed that the original leave for two months applied for by the respondent was sanctioned, the respondent remained absent from hi duties. without leave, from 21st March upto 17th June, 1980. Taking all these circumstances into consideration, I would award the respondent fifty per cent of back benefits. The appeal of the SASO is rejected, save for the modification indicated above. .

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