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Appeal No. ED‑307 of 1986, decided on 22nd June, 1986.
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑--
‑‑‑S. 2(1)(e)‑‑Factories Act (XXV of 1934), S. 9(1)(c) Employer classification of‑‑Only such person, held, could be employer who was declared as such under S. 9(1)(e) of Factories Act as provided by S 2 of Ordinance VI of 1968.
‑‑‑S.9‑‑Factory Manager, status of‑‑When a factory starts, a Factory Manager has toy be declared‑‑Such Factory Manager, held, would be deemed to be employer after such declaration and could take action for any misconduct.
‑‑‑S. 25‑A‑‑‑Grievance petition‑‑Fresh inquiry after filing off appeal‑ Effect‑‑By merely starting an enquiry, appellant, held, would not be debarred from exercising right of appeal‑‑However; if Establishment takes any action against employee as result ' of fresh inquiry, appeal filed by such person would become infructuous.
Naeem Bukhari for Appellant.
Munswar Ahmad Javaid for Respondent.
Date of hearing: 21st June, 1986.
The decision dated 12‑4‑1986, recorded by learned Court No.4, Faisalabad has been challenged whereby the grievance petition of the respondent for his re‑instatement in service was allowed on a technical ground allowing fresh enquiry. It was directed that question of past benefits would depend upon the result of fresh enquiry. The technical defect according to the learned lower Court was that the dismissal order was passed by the Technical Director of the Mills whereas Mr. Rauf had been declared as Factory Manager and was thus, employer according to section 2(c) of the Standing Orders Ordinance. It has been argued by the learned counsel for the appellant that learned lower Court has wrongly held that sub‑clauses (i), (ii) and (iii) of sub‑clause (c) of section 2 Standing Orders Ordinance is independent of each other. He has also argued that the learned lower Court wrongly relied upon P L D 1981 Kar. 35. The line of argument of the learned counsel is that as according to the definition of industrial establishment a factory is industrial establishment, every factory would be an industrial establishment and thus, any person responsible to the owner for the supervision and control of industrial establishment would come within the definition of employer and since the Technical Director as such is included in the definition the action taken by him was legal and thus, there was no occasion to say that action had been taken by a person without authority. A factory may be called an industrial establishment but since factory and industrial establishment have been separately dealt with in the definition of employer every clause manifestly is independent of the other. Where a factory is concerned any person armed under clause (c) section 9 of the factories Act as a Manager of the Factory would be employer but where there is no factory but an industrial establishment then if it is under the control of the Central or Provincial Government or of its any department the authority appointed by such Government or the Head of the Department would be the employer. In case of any other industrial or commercial establishment any person responsible to the owner for the supervision and control of such establishment can be classified as an employer. It has also been argued that the appellant is in reality an industrial establishment and owns p factory. This is against the very name and style of the respondent. The respondent is described as Hussain Sugar Mills Limited and not otherwise. Needless to say that a sugar Mills is a factory where sugar is manufactured, therefore, when question of employer arises only that person can be the employer who has been declared as such under subsection (1) clause (c) of section 9 of the Factories Act as provided in sub‑clause (i) of clause (c) of section 2 of Standing Orders Ordinance, 1968.
2. It has further been argued by the learned counsel for the appellant that since Mr. Rauf was declared as Manager by the Technical Director of the Mills the later too was competent to take action himself and was not divested of the powers which he had transferred to Mr. Rauf. No question of delegation or transfer of powers arises. The requirement of section 9 is that when the factory starts a Factory Manager is to be declared. So, only he can be the employer who has been declared as the Factory Manager and after it is done only he can take action for any misconduct.
3. However, this argument of learned counsel for the respondent has no much force that the appeal has become infructuous inasmuch as the appellant has in compliance with the permission given by the learned lower Court started the fresh enquiry. By merely starting the enquiry the appellant is not debarred from continuing exercise right of appeal. However, if the appellant had finally taken any action as a result of the fresh enquiry of course the appeal may have become infructuous.
4. As a result of the observations made above, the appeal fails and is dismissed.
A. A.
Appeal dismissed.
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