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Appeal No. HYD-570 of 1982, decided on 12th June, 1984.

-- S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2 (1)---Re-instatement-Head jobber in Textile Mill dismissed for mis conduct-Orders challenged on ground of victimization due to being Union office-bearer-Labour Court directed re-instatement with back benefits-Services terminated immediately after re-instatement on ground of post having been abolished - Was again ordered to be re-instated in service-On appeared by employers, Tribunal accepted their plea that duties of Head jobber being supervisory in nature, he was not workman and his grievance petition was not maintainable-Further held, that in circumstances of case appellant could not be compelled to accept employee against posts which stood abolished much earlier.

Chairman, Brook Bond (Pakistan) Ltd. v. General Secretary, Union of Karkunane Brook Bond (Pak.) Ltd., Rawalpindi P L D 1969 Lah. 717; Shah Hussain v. Kotri Textile Mills 1981 P L C 871 and Islamabad Club v. Punjab Labour Court No. II etc. P L D 1980 S C 307 ref.

Ghulam Hassan for Appellants.

Nemo for Respondent.

Date of hearing : 8th December, 1983.

This appeal is directed against the order, dated 19th October, 1982, passed by the Labour Court No. VI at Hyderabad directing reinstate ment of the respondent with back benefits with effect from 17th October, 1981.

2. The facts leading up to the appeal briefly stated are that the respondent was originally appointed as winder in the winding department of the appellant mills in January, 1972. Subsequently, he was promoted to the post of a checker and after about a few months he was promoted to the post of Head-jobber in the same Department. He was elected as a president of the peoples Union formed in 1972 which subsequently became Collective Bargaining Agent since 12th August, 1975. 1t is alleged that in the year 1972 as a measure of victimization, the appellants dismissed all the office -bearers of union including the respondent for misconduct on a charge of absence from duty for more that 10 days. The respondent challenged the action of the appellant in a grievance application under section 25-A, I.R.O. 1969. The litigation arising out of it lingered on in appeals and Constitutional peti tions, ultimately resulting into an order, dated 22nd August, 1978, passed by the Labour Court in appeal, directing re-instatement of the respondent with full back benefits. Constitutional petition was filed against that order by the appellants but it was dismissed on 29th September, 1981. In comp liance with the order of re-instatement the appellants reinstated the respon dent vide order, dated 17th October, 1981 but under the same order, he was informed about the termination of his services with effect from 18th October, 1981 on account of abolition of his post with effect from 17th April, 1976, vide order of the same date. He was advised to collect his legal dues as a result of the order of termination of his services. He alleged that his services could not be terminated without offering him a lower post and he also alleged that the post of Head Jobber after the re-start of the mills in January, 1977, was re-designated as Shift Jobber, Head Winder and Checker, Winding Jobber and Finishing Jobber etc., and was in fact in existence and there respondent could be re-instated in those posts. He served a grievance notice on the appellants and his grievance having not been redressed he filed an application under section 25-A, I. R. O., 1969, in the VIth Labour Court at Hyderabad as stated above resulting in his reinstatement with back benefits with effect from 17th October, 1981. Aggrieved by this order, the appellants have come in this appeal.

3. I have perused all the evidence recorded before the learned Labour Court and have also heard the learned counsel for the appellants Mr. Ghulam Hussain, whereas the respondent and his counsel Mr. Wasiullah Qureshi remained absent. The respondent's application was resisted in the Labour Court mainly on the pleas that the respondent was not a workman within the meaning of section 2 (i) of the Standing Orders Ordinance, 1968, and that the post of the respondent having been abolished as a result of re-organization on account of financial crises, adverse market condition and continuous losses, the respondent could not be appointed in the post as it did not exist. In view of the pleadings of the parties and the evidence they examined before the learned Labour Court as well as the arguments that were addressed on behalf of the appellants, the questions that would arise for determination for the disposal of this appeal would be firstly, as to whether the respondent was a workman within the meaning of Standing Orders Ordinance or not and secondly, as to whether on reinstatement in service by the order of the learned Labour Court he could be thrusted upon the appel lants regardless of the fact that his post stood abolished during the interven ing period with effect from 17th April, 1976.

4. As regards the question as to whether the respondent is a workman or not within the meaning of Standing Orders, the burden of proof could admittedly lie on the respondent himself. To determine that question, the true test would be to look to the direct, immediate and the substantial part of the work for which he was employed at the relevant time and not to the sundry duties incidentally performed by him. The true answer to this question, therefore, will depend upon the proved facts of the case. Reference in that respect is invited to the decision in the case of Chairman, Brook Bond (Pakistan) Ltd. v. General Secretary, Union of Karkunane Brook Bond (Pak.) Ltd., Rawalpindi (P L D 1969 Lah. 717). It would, therefore, be appropriate that this question may be examined in the light of the evidence adduced by the parties before the learned Labour Court. In that respect, there is only a solitary word of the respondent that the nature of the duties that he was performing as Head Jobber were manual and clerical, by handling machines, checking the qualities of the products and helping the workers in the perfor mance of their duties. According to him he was allowed attendance card like other workers of the mills when the supervising and other staff members were not allotted any ticket or card. In his cross-examination, he admitted that as a Head Jobber Winding, he was incharge of all the production by the winders and his responsibility was to see that the production was according to the target. He had also to see if the winders were working properly. He has further admitted that fitters used to remove defects from the machines. It was the duty of the foreman to ask them to remove the defects. He has further admitted that as Head Jobber, it was his duty to see the general position, cleanliness and the size of the Cones of Winding Department. He has further admitted that if any winder did not perform his duties properly, he used to report against him to the Shift Incharge. According to him he was also to see and examine the weight of the Cones. On the basis of all these admissions in his evidence the nature of the duties that he was performing as a Head Jobber were predominently supervisory in nature rather than manual or clerical. As regards the evidence adduced by appellants in that regard, Mr. Muzaffar Hussain Shah, the Manager of the appellant mills has deposed that the respondent was working as a Head Jobber in all the three shifts and used to supervise the production work of all the three Head-Winders. According to him his work was not manual or clerical, skilled or unskilled. He has further deposed that the Head Winder in the Winding Department as well as the winders used to be supervised in their work so far the volume of the production is concerned, by the Head-Jobber. These assertions have not at all been challenged in his: cross-examination on behalf of the respondent by his learned counsel. Muhammad lqbal, the Technical Manager of the appellants mill has also deposed that the respondent who was the Head-Jobber winding, used only to check and supervise the work of Head Winder and Winders of the three shifts and in case of any defect in machine, he used to call fitters or head fitters through foreman to remove defects of machines. According to him further, its Head Jobber Winding, he performed no work with hands and his duties were not manual or clerical. According to him further, his work was to make good shortage of winders and see that the production and quality is according to target. According to him, it was he who used to sanction leave applications of the winders when he was present in the mills and in case any winder did not perform his duty properly, he used to recommend action against him. His version has not been substantially challenged in his cross-examination. He has only stated therein that the Head Jobber has to check tare quality and the production given by the winders and that he bad to maintain the record of the production in respect of each winder. The next witness Niaz Ahmad who is a Technical Manager of the Indus Textile Mills, Hyderabad, the adjoining mills, has also stated that the duty of the Head Jobber in the textile mills is mainly supervisory and is not at all manual or clerical in nature. His disinterested version has also not been substantially challenged in the cross-examination. All this evidence produced on behalf of the appellants would clearly show that the duties performed by the respondent as Head Jobber were mainly supervisory in nature and not at all manual or clerical. If incidentally, he was maintaining the record of production in respect of each winder, that alone would not affect his status as that may be only incidental to his main duties he was performing as ahead-jobber. This over-whelming evidence coupled with admissions that the respondent has made as discussed by me above, would clearly establish that the nature of the duties the respondent was performing were supervisory in nature and not at all manual or clerical. It was also held by this Tribunal in the case of Shah Hussain v. Kotri Textile Mills (1981 P L C 871) that a jobber in textile mills having duty to train workers and supervise their work besides signing production register was not a workman. I fail to understand as to how Head-Jobber performing almost the same type of duties would be considered as a workman in the face of the evidence that has been discussed by me above. Accordingly, I have no doubt that the respondent has failed to establish that he is a workman within the meaning of Standing Orders Ordinance.

5. It has been contended by the learned counsel appearing on behalf of the appellants that there is no estoppel against Law and that the present grievance application arises out of new and fresh cause of action on account of abolition of the post. He has, therefore, contended that if the status of the respondent to the effect that he was not a workman was not challenged in an earlier litigation that factor alone would not determine that he was a workman. It is clear to me that the present grievance application arises out of new and fresh cause of action on account of abolition of the post and it does not seem to have any concern with the earlier litigation so far this issue is concerned and that the respondent cannot be said to be a workman on that score alone when he is proved otherwise on the basis of the positive evidence adduced by the parties. Accordingly, considering all the evidence and the circumstances in the case, I find that the respondent is not a workman within the meaning of. Standing Orders and his grievance, application is not maintainable on that account alone.

6. As regards the second question as to whether the respondent on his reinstatement in service could be thrusted upon the employer regardless of the fact that his post stood abolished during the intervening period, there is no dispute that it was a right of the employer to reorganize the establishment on account of financial crises and even abolish the posts. The only question that would arise for determination is as to whether the action of the employer was bona fide or not. In the instant case, it is an admitted position that the respondent remained out of the job on account of his dismissal during the period 22nd June, 1975 to 22nd August, 1978. His post alongwith 6 others was abolished on account of general retrenchment due to financial crises, whereby even 45% of the working force was also retrenched from service. Office order, dated 17th April, 1976 and a letter on the subject of retrenchment, dated 17th April, 1976 produced on behalf of the appellants support their contention in that regard. These orders and letters have not been challenged. The posts including that of the respondent were abolished on 17th April, 1976 when order of his reinstate ment was finally upheld by the High Court on 29th September, 1981 when the Constitutional Petition of the appellants was dismissed. It would hardly be fair to say that the appellants could foresee the result of the litigation with the respondent in the year 1976, so that they carried on re-organization resulting in abolition of the post of the respondent alongwith 6 others and retrenchment of the working force to the extent of 45%. It is admitted by the respondent that the work in the mills was suspended in the year 1976 and was again revived in the year 1977. In view of this evidence on the record, there is no doubt that the re-organization by the appellants which resulted in the abolition of the posts including that of the respondent and the retrenchment of the working force to the extent of 45% was bona fide I find no evidence or circumstance at all to indicate that their action was mala fide. Confronted with this situation, the respondent has contended that the post of Head Jobber and that of a Checker were re-designated and given different names and they actually existed and he could be provided either in the post of a Head Jobber or the lower post of a Checker. The allegations have been denied on behalf of the appellants. Muzaffar Hussain Shah the Factory Manager as well as Muhammad Iqbal, Technical Manager have deposed that the post of Head Jobber and Checker were abolished and they no more existed and they were not re-designated and given different name. Their assertions have not been challenged in their cross-examination. In view of this evidence on the record, I find that neither the action of the appellants in abolishing the post as a result of reorganizations was mala fide nor they re-designated the posts and changed their names and that in fact they did not exist. There is also no force in the contention that the order of re-instatement of the respondent revived the abolished post of a Head Jobber. Reference in that respect is invited to the authority of the Supreme Court of Pakistan in the case of Islamabad Club v. Punjab Labour Court No. II etc. (P L D 1980 S C 307). The contention that the respondent could be provided in the lowest post of winder in which he had originally joined, has also no force, for the simple reason that no such assertion was made either in the grievance application or any where else. The respondent and his counsel have not contested this appeal and no such assertion has been made even in these appeal proceedings. The respondent was asked to collect his dues and was sent cheque of Rs. 32,268.66 but it appears he has returned the same on the plea that the calculations are not correct. However, it has been offered that whatever legal and correct dues the appellants would be ready and willing to pay. Accordingly, there appears no force in the' contention to the effect that the post of the respondent abolished on account of a bona fide re-organisation would be revived by an order of re-instatement passed by the learned Labour Court. In this view of the matter, the appel lants cannot be compelled to accept the respondent in the post of Head' Jobber as well as the-lower post of Checker, as both the posts stood abolished on 17th April, 1976.

7. The result is that the impugned order, dated 19th October, 1982 passed by the learned Labour Court is set aside and the appeal is allowed.

M. I.

Appeal accepted.

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