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Appeals Nos. KI‑46 and JM‑36 of 1983, decided on 19th March, 1984.

‑‑Ss. 25‑A & 38 (3) read with West Pakistan Industrial and Commer cial Employment (Standing Orders) Ordinance (VI of 1968), S. 1 (4) (b)‑Grievance petition against termination of service accepted by Labour Court‑Orders of Labour Court challenged in appeal on plea that number of workers in employer establishment being less than 20, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable‑Plea based on question of fact not raised in written statement before Labour Court and no evidence thereon led‑Plea, in circumstances, overruled at appellate stage.

‑‑Ss. 25‑A & 38 (3)‑Grievance petition against termination of service‑ Termination stated to be dismissal for misconduct‑No enquiry file produced before Labour Court‑Appellate Tribunal, in circumstances, drawing presumption that no enquiry record came into existence‑Workman (appellant) having been kept out of service not for his fault but due to dismissal without enquiry, in circumstances, held, entitled to back benefits, also.

M. S. Bokhari for Appellants.

Pervez I. Mir for Respondent.

Date of hearing :12th March, 1984.

The two appeals captioned above arise from the decision, dated 22nd December, 1982 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of Nawazish Ali (hereinafter to be called as the respondent) for his reinstatement in service was accepted without back benefits. Dawood Yamaha Limited (hereinafter to be described as the appellant) has challenged the direction of reinstate ment, whereas the respondent in his appeal has claimed back benefits. Since both the appeals arise from the same decision, they are being disposed of together through this single judgment. .

2. Only two points have been argued before me by the learned counsel for the appellant. He says that Standing Orders Ordinance, 1968 is not applicable, as number of workers were 14 only as stated by the respondent. This is a question of fact and as this point was not raised in the written statement, no evidence could be led on it. If the point had been raised in the written statement, the respondent may have proved that the Lahore Branch is not a separate establishment and thus number of all the workers working in the Head Office and all the Branches be considered. The objec tion is overruled.

3. The second point argued by the learned counsel is that the respon dent is not a workman. The respondent gave his duties but not a single word was said by R.W.‑1 on the point. The respondent said that he used to maintain stock card books showing the receipt of delivery parts. He used to prepare cards of the stores, maintain local purchase register, cash memo books and bill books. He also said that he used to send weekly and monthly statement to the Head Office. In the absence of evidence of supervisory powers, the respondent could not be declared as a supervisor. He does not come within the exceptions of section 2 (xxviii) of the Industrial Relations Ordinance, 1969. Since he was doing clerical work, he is workman according to the definition given in section 2 (i) of the Standing Orders Ordinance, 1968 also.

The learned lower Court thus has rightly directed the reinstatement o the respondent in service. The respondent remained out of service not for any fault of his but due to the fact that he was dismissed without holding a proper enquiry. Since no enquiry file was produced before the learned lower Court, it is presumed that no such record came into existence. So the respondent is entitled to back benefits also.

5. As a result, the appeal of the appellant is dismissed and the appeal of the respondent is accepted allowing him back benefits.

A. E. Order accordingly.

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