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Appeal No. LHR‑172 of 1985, decided on 29th May, 1985.

‑‑‑Ss. 2(XXVIII) & 25‑A‑‑Workman‑‑Requirements‑‑Grievance petition against termination of service‑‑Maintainability‑‑Employee as gateman checking passes and marking attendance of workers, held, would be deemed to be performing manual as Well as clerical duties‑‑ Such employee would be within ambit of 'workman'.

‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12(3)‑‑Termination order Validity--Requirements‑‑‑ Ground for termination being, "service era more required", held, could not be ground for termination‑‑Order terminating services of employee should be self‑sufficient and explicit‑ -Order of termination not stating grounds on which same was being issued would violate mandatory provisions of S.O. 12(3) of Ordinance VI of 1968.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Termination of service‑‑Mere fact that employee had applied for leave, held, would not be sufficient to terminate service of such employee‑‑Order of termination of service would not be justifiable in circumstances.

‑‑‑S. 25‑A‑‑Termination of service‑‑Employee accepting dues in full and final settlement, held, would be estopped from challenging order of termination.

1975 P L C 318 ref.

Ch. Bashir Ahmad for Appellant. Ch.

Imtiaz Ahmad for Respondent.

Date of hearing: 14th May, 1985.

The decision, dated 11‑3‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 2. Lahore has been challenged in this appeal whereby the grievance petition of the appellant for his re‑instatement in service was dismissed.

2. The services of the appellant were terminated vide order copy of which is Exh. P.‑6. No sufficient reason for his termination is given. It is mentioned in Exh. P. 6 "Your services are no more required w.e.f. 1‑1‑1984." The facts are that an accident took place on 19‑11‑1983 in which the appellant was injured. His leave up to 26‑11‑1983 was sanctioned. He worked from 27‑11‑1983 to 30‑11‑1983 and applied for leave again from 1‑12‑1983 to 10‑12‑1983. This was allowed. He applied for further leave for five weeks from 11‑12‑1983 but it was refused and the refusal was followed by the order of termination.

3. The learned lower Court has held that the appellant is not a workman, that the order of termination was legal, just and proper and that the appellant on account of receiving dues in full and final settlement was estopped from challenging the order of termination from service.

4. The reasons given by the learned lower Court for holding the appellant as not a workman are not sufficient. The learned Presiding Officer has been influenced by the fact that the appellant did not work as Store‑keeper and that Store Keeper was R.W. 2. This fact was not sufficient when by other evidence it was proved that the appellant performed manual and clerical duties. The appellant checked and made measurement of the materials brought to the factory at night as admitted by R.W. 2. The learned lower Court has treated this duty as incidental. Learned counsel for the respondent has said that this duty was casual. The evidence is that on every night three or four trucks carrying the materials used to come to the factory, which were checked by the appellant and he by means of a rod took measurements. Needless to say that hands are used for taking the measurement. Since the duty of the appellant used to be at night so it was one of his duties to take measurement of the materials brought to the factory during for duty hours. The measuring was made by some other employee on duty. So when that person was on duty it was one of main duties and not merely ancillary to the main duty. The statement of the appellant that he used to check and search the workers going out of the factory was not rebutted. This is the normal duty of a gatekeeper. Obviously in effecting search hands are used. Signing of the gate passes is ancillary to the checking of the passes. The appellant did not explain how he checked the passes. So merely signing the passes was not clerical duty and it was rightly not considered by the learned lower Court. But' marking the attendance of the workers in the attendance register amounts to clerical duty. The appellant said that he marked the attendance of the workers at the gate. This piece of evidence was not rebutted. So the appellant was performing clerical duty as well. It appears that the learned lower Court was misled by the word "Chowkidar". Chowkidars, are of two kinds. Chowkidars acting merely as Security Guards are different from the Chowkidars working as Gatemen. The duties of the Gate‑man like the appellant are manual as well as clerical whereas the duty of the Chowkidar guarding the factory against trespasser and to look after the property are quite different in nature and they are not manual or clerical. I, therefore, disagree with the finding of the learned lower Court on the point and hold the appellant a workman.

5. So far as the termination order is concerned the reason "service no more required" could not be a ground for termination. Reason given should be self‑sufficient and should not require further reasons. If it is, said the services are no more required, still question arises why the services are no more required. So the ground given in the order of termination of service is not sufficient and explicit reason. The order violates the mandatory provisions of Order 12(3), which says that explicit reasons should be given. The learned lower Court has said that P.W. 1 explained the reason in his statement. Firstly, reason should be given in the order of termination and secondly, the reason given by R.W.l is not sufficient. He said that the appellant applied for leave for five weeks which the management could not afford to sanction. If the management could not afford to sanction the leave and rejected it, this could not be a ground to terminate the service of the appellant. If the appellant had remained absent for more than 10 days after the rejection of leave action could have been taken against him under Order 15(3) of the Standing Orders Ordinance, 1968. When law gives a right to get leave and the worker applies for leave on sufficient ground the leave cannot be refused. This is proved by the evidence that the appellant's leg was under plaster and he had been giving duty by lying, on the cot. This shows that due to the accident the appellant required 'leave so the application was not without any reason. This is not the case of the respondent that the appellant had expired leave account. Since the appellant had a right to get leave and there were sufficient grounds, even the leave has wrongly refused. If the respondent could not afford to keep the post vacant by sanctioning the leave of the appellant it could manage to engage some other person as a badli. So the mere fact that the appellant had applied for leave for five weeks was not sufficient ground for terminating the service. The order of termination of service, therefore, was not justified.

6. However, the finding of the learned, lower Court is correct that on account of accepting dues in full and final settlement the‑appellant was estopped from challenging the order of termination. The appellant is an educated person, which is apparent from his signature appearing on writing in Exh.R.I. The break‑up of the dues is also given. The dues include one month pay in lieu of notice also. The appellant had the knowledge that one month's pay was being given to him in lieu of termination of service, therefore, if he was not willing to lose his service he should have recorded a note of protest. Since he did not do, so he gave an impression that he was not interested in challenging the order of termination and that he was inclined to accept it. He could not afterwards take a somersault and come forward with the request that the order of termination be set aside. Learned counsel for the appellant has cited 1975 P L C 318 and copy of the decision dated 11‑1‑1984 in appeal No.RI‑753/82‑Punjab titled as Muhammad Yasin versus P.U. T.C. , but they are distinguishable from the facts of the case. In the ruling cited by the learned counsel only this was said that merely collection of dues was no bar and in spite of it the grievance continued. In the present case there is no material on the record to show that the grievance existed even after the appellant had received the amount of benefits. Grievance notice is of 28‑12‑1983 and Exh.R.‑1 receipt under which the appellant received the dues is, dated 29‑12‑1983. Just on the following day of sending the grievance notice the appellant had received the dues without making any protest. Since the leg of the appellant was under plaster he may have realised that he would not be able to render service any more, therefore, when the dues were offered to him he received them. So no grievance after he received dues had remained.

9. As a result of the observations made above, the appeal fails and is dismissed.

A.A.

Appeal dismissed.

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