Find a Lawyer

Appeals Nos. RI‑488 and 489 of 1983. decided on 25th July, 1984.

‑‑ Residential quarter‑Allotment of‑Workman allotted residential quarter within mills area‑A licence‑Licence can be revoked at any time or its terms can be altered‑Order of employer not to keep cattle and to remove same from quarters, held, not unreasonable Workman, held, cannot keep cattle as of right‑Disobedience of such order by workman ‑‑Misconduct‑Workman instead of obeying order resorting to civil suit and not succeeding‑Punishment of dis missal, in circumstances, held, though harsh but proper due to con tumacious attitude of workman‑West Pakistan Industrial and Com mercial Employment (Standing Orders) Ordinance (VI of 1968) S. O. 15 (3) (a).

‑‑S. 47‑Dismissal of office‑bearer of trade union during pendency of industrial dispute‑industrial dispute‑‑Mere raising of demands‑

‑‑ S. 10 (2)‑Factory Manager‑Appointment of‑Copy of appoint ment order endorsed to Chief Inspector of Factories exercising powers of Inspector‑Appointment, held, legal.

(d) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑S. 2 (i) and Industrial Relations Ordinance (XXIII of 1959), S. 2 (xxviii) ‑"Workman"‑Head Production Mechanic‑In-charge of production unit with 3 Production Mechanics 15 Head Doffers, 15 Assistant Head Doffers and 40 workers as subordinates‑Not doing any 'work himself but supervising work of subordinates‑Basic Pay Rs. 875 P.M.‑Not a workman under both Ordinances.

Farooq Zaman Qureshi for Appellant.

Naeem Bokhari for Respondents.

Date of hearing : 17th July, 1984.

The two appeals captioned above arise from the decisions, dated 15th August, 1983 recorded by the learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, dismissing the grievance petitions of the appel lants for their reinstatement in service. As facts and law points involved in the two appeals are the same, except the point of workman in the case of Banaras Khan, both the appeals are being disposed of together through this single judgment.

2. The facts are that the appellants are keeping buffaloes in the quarters allotted to them. The Cantonment Board asked the respondent to direct the workers to control their livestock, so that they may not damage the plants planted on the road side. The respondent, thereafter, affixed a notice on the notice board on 21st August, 1982 asking all the workers who were keeping livestock in the quarters to remove the same outside the Mills area. Second notice was followed on 25th August, 1982 and last Exh. R‑13 on 9th September, 1982. The date upto which the cattle were to be removed was notified in the notice as 22nd September, 1982. Since the appellants did not remove their cattle, they were charge‑sheeted on 99th October, 1982. Enquiry was held, against the appellants, which ultimately culminated in their dismissal from service.

It has been argued by the learned counsel for the appellants that the charge‑sheets are time‑barred even from the last notice, dated 9th Sep tember, 1982. This is not so. The period of 30 days for charge sheeting did not start from the dates of any of the notices. The appellants were to be charge‑sheeted after they had violated the orders of removal of their cattle from the Mills area. Last date for removal of the cattle being 22md September, 1982 the appellants could not be charge‑sheeted before that because they committed violation of the orders after 22nd September, 1982. The period of 30 days, therefore, started from 23rd September, 1982. So the charge‑sheets, dated 9th October, 1982 well in time.

4. The other point argued is that this is a case of victimization and discrimination, inasmuch as no action was taken against the other workers who too were keeping liverstock and did not remove it in com pliance with the notices. No doubt, the appellants did say so in their statements but this evidence was rebutted by R. W‑1. He said that 30 to 60 persons were keeping cattle and that except the appellants and two others the remaining had removed the cattle. So, it does not stand established that the appellants have been victimized.

5. It has been argued that the order directing to remove the cattle was not reasonable as the keeping of cattle in the Mills area is not pro hibited by any law and that the letter received from the Cantonment Board was not for removal of the cattle but suggested that the cattle be prevented from going to the roads and damaging the plantation. No doubt, the Cantonment authorities did not demand the removal of the cattle, but it cannot be said that the order issued by the respondent was not reasonable. The appellants are merely licensees. A licence can be revoked at any time or its terms altered. If the worker of the mills does allow the keeping of cattle within the Mill's area, it cannot be said that he has no right to pass such an order. Quarters have been allotted for residence and not for being used as a cattleshed also. Keeping of cattle has no connec tion with the duties of the appellants, so they cannot keep them as of right. So, the order for removing the cattle was reasonable. About two months time was given, which was sufficient, if had been availed of.

6. The other point raised is that an industrial dispute was pending but no permission was taken to dismiss Banaras Khan, appellant, who was an office holder of the union. No copy of any strike notice or proceedings pending before the conciliator was produced. P.W‑1 speaks of only the pendency of demands. He does not say before whom the demands are pending. Mere raising of demands does not amount to pendency of an industrial dispute. An industrial dispute comes into being legally when the matter comes before the conciliator. If strike notice is given, its copy is to be sent to the conciliator, who may take up the matter and thus an industrial dispute may be said to have come into existence. Since no such evidence can be found, it cannot be said that an industrial dispute was pending when the dismissal order was passed. So, taking of permission was not necessary.

7. The other point raised is that the order of dismissal was passed by the Secretary who was not competent. The line of argument is that his appointment as Factory Manager was not legal, inasmuch as copy of the order was not sent to the Labour Department, as required by section 9 of the Factories Act. The argument has no force. The appointment of then Secretary as a Factory Manager is Exh. R‑16. It shows that copy was endorsed to Chief Inspector of Factories. According to section 10 (2), Chief Inspector has in addition to other powers the power of the Inspector. So, the Secretary was competent to pass the dismissal orders.

8. The only difference in the case of Banaras Khan and Sahib Din is that the question of non‑workman has been raised against the former. For the purposes of section 2 (i) of Standing Orders Ordinance, 1968, it was necessary for Banaras Khan, appellant, to show that his duties were either skilled manual or clerical. He stated that no person was working under him, that he had no power of hire and fire, that he worked with his own hands and that it was a skilled work. No doubt, he said that he worked with his own hands, but did not disclose the nature of his work. His post was Head Production Mechanic. R. W.‑1 said that three Production Mechanics, 15 Head Doffers, 15 Assistant Head Doffers and 40 workers were subordinate to him and that he was In-charge of Production of all the three sections. He also said that Banaras Khan did not do work with his own hands and only supervised the work of his subordinates. If he had been only a Production Mechanic, it could be said that he had to work with his own hands. Since be was a Head Production Mechanic, the statement of R. W.‑1 appears to be correct that his duty was to supervise the work of his subordinates and he himself did not do work with his own hands. The statement of Banaras Khan, therefore, stands controverted, Heads may also occasionally work with their own hands when the mechanics are in difficulty but P.W.‑1 did not say so, therefore, in the absence of evidence to the contrary the statement of R.W.‑1 cannot be belied and discredited: Even he is not covered by the definition of workman given in section 2(xxviii) of the Industrial Relations Ordinance, 1969. His duties as stated by R.W.‑1 were supervisory and basic pay Rs. 875. So, he comes under the exception (b) and stands ousted from the definition of workman.

9. Punishment of dismissal for not removing cattle was, no doubt, harsh but the appellants were dismissed on account of their contumacious. attitude. They instead of obeying the orders brought civil suits but could) not succeed.

10. As, a result, the appeals are without force and thus are hereby dismissed.

A. E.

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.