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(a) Industrial Relations Ordinance (XXII of 1969)---

--‑‑Ss. 2 (xxviii) & . 25‑A‑"Workman" ‑ Security Inspector -Supervising Security guards‑Wages more than Rs. 800 p. m.‑Not a workman ‑Not entitled to grievance petition before Labour Court.

1977 P 1, C 283 ; Muhammad Usman v. Sind Labour Courts etc. 1977 P L C 445 and Abdul Sattar v. Sind Labour Court P L J 1979 Kar. 236 rel.

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

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---S. 25‑A‑‑Grievance notice to employer‑ Must be served in writing on employer ‑ Application addressed to Labour Depart ment‑Not a grievance notice‑‑Grievance petition pursuant to such application ‑Not maintainable.

Abdul Qadir Khan, a retired Sub‑Inspector of Police, was appointed as a Security Inspector on 25th November, 1968 by the Management of T. J. V. His services were. terminated with effect from 30th September, 1976 on account of reduction of work and retrenchment of post vide letter Exh. P. W. 2/1. He filed present petition under section 25‑A of Indus trial Relations Ordinance, 1969 challenging the order of termination of services against Chief Security Officer, Tarbela and T. J. V. It is averred that after his appointment as Security Inspector, he did his job honestly and efficiently to the best of his ability. On 7th March, 1974 Mr. B. C. Hooper suddenly sacked him without any prior notice. The Central Labour Commissioner, set aside the order of termination and directed re instatement with all back benefits. The Management once again started victimising him and ultimately on 30th September, 1976 respondent No. 1, delivered him the letter terminating his services. He approached Labour Department for relief but with no result. He then filed petition under section 5‑A of Pakistan Essential Services Act, 1952 on 2nd November, 1976 before Chairman, National Industrial Relations Commission. The Commis sion relying on a judgment of Lahore High Court, in case of "General Manager, Heavy Mechanical Complex v. Senior Member" and N. I. R. C., decided on 22nd December, 1976 held that the Commission had no jurisdic tion and ordered the return of petition for presentation before proper forum. This order was passed on 30th March, 1977.

The case of petitioner, in short is that order of termination was mala fide and was also against law. The respondents . contested by filing joint written statement. Their case is that petitioner was removed with effect from 30th September, 1976. Preliminary objection was raised that petitioner was not workman and as such this Court had no jurisdiction. Non‑service of grievance notice was also pleaded. Sardar Muhiud Din, appeared as P. W. I. and petitioner also gave statement as P. W. 2 in support of his case Mr. C. K. Riggs and Muhammad Afzal Shah, were examined as R. W.

It has to be decided whether petitioner is a workman within the meaning of section 2, clause (xxviii) of Industrial Relations Ordinance, 1969. The pica of the respondent is That petitioner was employed in supervisory capacity and his wages exceeded Rs. 800. Workman. has been defined as a 't person not falling within meaning of employer and he is the person employee in the establishment or industry for hire either directly or through contractor but sub‑clauses (a) and (b) of clauses (xxviii) exclude the following persons from the definition of workman :‑

(a) Who is employed mainly in a managerial or. Administrative capacity, or

(b) Who being employed in a supervisory capacity draws wages exceed ing Rs. 800 per month, or performs either because of the nature of duties attached to the office or by reasons of powers vested to the office or by reasons of powers vested in him or functions mainly of managerial nature.

In the light of above definition let me examine the case of petitioner. According to petitioner, Security Inspector is designated as Security Officer for day and Inspector for the night. The Security. Sargeant has to seek instruction from Security Inspector for posting of guards at various places. He did not admit that Security Sargeants were to check the work of Security Inspector. In his words Security Inspectors were to check the work of Security Sargeant. While petitioner was being cross‑examined my learned predecessor observed demeanour of the petitioner and remarked that he was refuse to answering the questions and was also not willing to give proper replies. The petitioner was warned as well. In the tale end of his statement, he conceded that Security Inspector supervises the work of Security Guards and also of Security Sargeants. The nature of his duty was to supervise the work of Security Guards. Petitioner was extremely reluctant to answer the question. Anyhow one thing he had to concede that he was to supervise the work of‑Security Guards. His designation as Security Inspector is also indicative of the nature of his duties. Major C. K. Riggs while appearing as R. W. 1. clarified the position in following words : ‑

"The duties of the Security Inspectors were purely of a supervisory nature. His. functions were to supervise Security Sargeants. The work of petitioner was not manual or of clerical nature."

Once again in the cross‑examination he stated that nature of job of Security Inspector ; and the other Security Staff was quite different from the work of other categories of persons shown in Exh. R. W. 1/1. No suggestion was put that petitioner was engaged in manual or other type of work as would bring him within meaning of workman. One question was put by petitioner about the nature of job of Security Inspectors and that of other persons shown in Exh. .R. W. 1/1. No question was put about the statement which R. W. 1 made, in the examination‑in‑chief regarding the nature of the duties of petitioner. In other words petitioner accepted the version of respondent that his job was supervisory in nature. Petitioner tried his best to suppress the quantum of wages that the received. Pay envelopes were exhibited but he insisted that his pay was Rs. 583. When questioned as to what pay he received ill 1976 he stated that he did not remember. Anyhow respondents placed on record the documents showing wages of petitioner. Petitioner received Rs. 1,699.62 per Exh. R. W. 2/1. His details of wages are as following :‑

Similarly according to Exh. R. W. 2/3 he received the wages for month of February, 1976:‑‑ .

If payment of week days overtime, Sunday overtime and public holidays is excluded even then his wages exceeded Rs. 800 per month, Cost of Living Allowance,, New Cost of Living Allowance Cost of Living Relief Allowance and Special Programme Allowance are permanent in nature. In 1977 P L C 283 petitioner who was maintenance supervisor‑ was held to be not workman as he drew Rs. 1,400 per month. In case of Muhammad Usman v. Sind Labour Courts, etc." (1) petitioner was a Sales Manager and it was held that he was not covered by definition of the term "workman". In case of Abdul Sattar v. Sind Labour Court (2) petitioner was serving as Assistant Security Officer, in a certain hotel. His services were terminated and the Labour Court dismissed his petition. The Appellate Tribunal after considering the material‑and affidavits of the parties held that he was not a workman. I am satisfied after going through their record that petitioner was employed in a supervisory capacity drawing wages exceeding Rs. 800 and as such he is hot a workman. The N: I. R. C., never held that the case of petitioner fell within the domain of Labour Court.

Petition is liable to be dismissed yet for another reason. No proper notice as required under section 25‑A had been given. Petition is silent as to whether grievance notice was served on the respondent or not. Respon dents .did raise objection that present petition entailed dismissal for want of grievance notice. Once again, petitioner observed complete silence about the service of grievance notice. R. W. 1 did state that petitioner never served any grievance notice. During course of arguments, Qazi Abdur Rashid, learned counsel for petitioner tried to overcome the difficulty by saying that Exh. P. W. 1 /6 served purpose of grievance notice. He contended that it was not necessary for his client to send the notice directly. Exh. R. W. 1/6 is a. letter addressed to Labour Secretary Central Government of Pakistan, Islamabad by petitioner complaining of his illegal termination. This is dated 7th October, 176. There appears certain writing in the band writing of some one directing Director Labour, North‑West Frontier Province, Peshawar and Labour Officer, Tarbela to help the petitioner. The grievance notice must be served by a worker in writing on the employer. Notice maybe given either directly or through his shop steward or collective bargaining agents. Notice was not given to the employer and also petitioner did no give notice either himself or through his shop steward or collective bargaining agent. In this instant case petitioner made an application to the Labour Secretary, Central Government. Exh. P. W. 1 /6 was brought on record and exhibited by P. W. 1. Sardar Muhammad Din, Joint Secretary. Ministry of Labour, Islamabad. In other words the said application was also not sent to the respondents.

In consequence of the above discussion petition is without any merit and the same is dismissed.

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