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Application No. 23 of 1984, decided on 13th August, 1985.

‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1(4) & S.0.12(3)‑ Termination of service allegedly wrongful‑‑Establishment proved to not having 20 or more employees at any time‑‑Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 not applicable‑‑Grievance application under S.25‑A, in circumstances dismissed as not maintainable.

Mirza M. Kazim for Applicant.

S.M. Yaqoob for Respondents.

The applicant has filed this grievance petition under Standing Order 12(3) read with section 25‑A, I.R.O., 1969 wherein he has prayed for reinstatement in service with back benefits.

2. Briefly stated the facts of the case as disclosed by the applicant are as follows.

3. That he was employed in the respondent establishment as Radio Grapher (X‑Ray Technician) since December, 1981 and continued to perform his work till 30‑6‑1983. However, due to differences with the management over the issues of overtime wages for 4 hours daily extra work, bonus, annual increment and other benefits, his services were terminated orally on July, 1983. The applicant then served the grievance notice and filed the present petition challenging his termination from service is mala fide and illegal.

4. The case of the respondent in the reply statement is that the applicant is not a workman and the provisions of I.R.O., 1969 are also not attracted in his case because establishment of the respondent has been functioning for the treatment and care of sick and infirm persons. The respondent also alleged that the applicant committed misconduct. and they cited the following instances:‑‑

"The applicant tried to cause damage to a very precious X‑Ray Machine while he was working on that machine.

The applicant tried to criminally assault a female patient who complained against him to the management.

The applicant again tried to criminally assault another female patient who also complained against him to the respondent establishment.

That in spite of repeated warnings the applicant did not improve his performance and has always been negligent in the work assigned to him. The applicant was also found committing blunders resulting in heavy loss, to the respondent. That the applicant due to his misconduct, lack of interest in the work let down the reputation and goodwill of the respondent.

That the applicant was caught red‑handed while taking stealthily unsigned reports to some patients for which he felt sorry and promised not to repeat such things again."

The respondent also warned the applicant about his alleged intolerable conduct and performance and ultimately his services were terminated with one month's notice pay.

5. The learned Vth Sind Labour Court levelled the issue on 22‑1‑1984 which reads as under: ‑‑

(1) Whether the application as framed is not maintainable at law

(2) Whether the provisions of I.R.O. are not applicable to the matter hence barred under law

(3) Whether this Court has no jurisdiction in the matter

(4) Whether the applicant has not cause of action to file this application

(5) Whether the applicant is entitled to any relief if so, to what extent

(6) Whether the termination of the applicant is in violation of Standing Order 12(3) hence mala fide, illegal and inoperative in the eye of law

(7) What should the order be

6. The parties filed their respective affidavits and witnesses from both the sides were cross‑examined by the learned Advocates.

7. I have heard learned counsel for the parties at length and have perused the record.

8. Now it is to be considered whether the applicant is a workman for the purpose of the Ordinance since his claim is based on the provisions of Standing Order 12 particularly clause (3), thereof. In order that any employee should be a workman for the purpose of the said Ordinance, the nature of his work must be either manual, whether skilled or unskilled, or clerical. According to this definition "workman" is employed in an industry or commercial establishment to do skilled or unskilled work, which is manual or clerical. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. Both the manual and clerical work in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. Thus, the true test is to look to the direct immediate and substantial part of work for which the applicant was employed and not to the sundry duties incidentally performed by him. The applicant has mainly stated in his application as well as in his affidavit that he was performing skilled manual work at the respondent establishment and used to operate X‑Rays machines. He has not disclosed the details of actual duties that he had performed and mere designation is immaterial. In cross‑examination he admitted that initially his salary was Rs.1,575 which was raised to Rs.2,000 in June, 1982. Thus, in my humble view he is not a workman as defined by law. Even otherwise on merits I have also examined carefully the oral and documentary evidence which has come on record. The payment register correspondence to the attendance register (Exhs. A‑1/4, A‑1/5 and A‑8). The part time workers have also been shown. I see no reason to doubt authenticity of those documents. The applicant admitted his signature on page 10 of the salary register and R.W. Saleem Habib who is the Administrator of the respondent establishment denied the suggestion in cross‑examination that the attendance register produced in the Court were prepared after the filing of this case. Therefore, these documents clearly indicates that the total number of workers was less than 20 at the time when the services of the applicant was terminated. R.W. Saleem Habib in cross‑examination also stated that at that time the total number of whole‑time employees of the respondent was about 16 and only two or three part‑times were working in the respondent clinic. He specifically denied the suggestion that at the relevant time 20 persons used to work in the respondent clinic. The applicant in para. 6 of his affidavit has stated that the number of workmen employed in the respondent establishment during the 12 months period between June, 1982 to June, 1983' was about 25 to 30 and he also produced the list of some of the employees. A.W. Muhammad Nawaz in para. 4 of his affidavit stated that during the course of his employment the total number of workers employed in the respondent establishment always remain about 20 to 30. These statements were challenged in cross‑examination and R.W. Saleem Habib in his affidavit in evidence vehemently denied the above claim of the applicant. In para. 6 of the R.W. Saleem Habib the details have been given to show that either the employees named by the applicant were not in the employment of the respondent or some of them had left the job or were only part‑timers. This evidence was not seriously challenged in cross‑examination. The statement of R.W. Dr. Syed Mehmood also supports the evidence of R.W. Saleem Habib. In these circumstances I find that the Standing Orders Ordinance and the I.R.O. are not applicable in this case. As was rightly contended by the learned counsel for the respondent at best even if for arguments sake it is conceded that the respondent establishment is governed by the West Pakistan Shops and Establishment Ordinance (VIII of 1969) the provisions of section 19 of the said Ordinance would apply in the case of the present applicant for termination of his services. According to the provisions of section 19 it was incumbent upon the respondent to serve the applicant with one month's notice in writing before terminating his services or else to pay one month's wages in lieu of notice. In other words the law provides a compensation in such a case where one month's notice for termination of services was not given. In the instant case admittedly no notice was given but he was given one month's salary and he collected his full and final dues.

9. Therefore, the upshot of the above discussion is that the provisions of I.R.O. , 1969 are not applicable in the facts of the present I case. Likewise the Standing Orders Ordinance is also not applicable due to lack of statutory number of employees working in the respondent establishment. The applicant is also not a workman and this Court has no jurisdiction to grant any relief to him. Accordingly his application is dismissed.

A.E

Application dismissed.

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