2020 PLP 214 (PLC)

JUSTICE (RTD.) SYED IFTIKHAR HUSSAIN SHAH, CHAIRMAN

The present appeal has been preferred against the judgment dated 09.04.2014 passed by the learned Presiding Officer, Punjab Labour Court No. XI, D.G. Khan whereby a grievance petition made by the respondent was accepted.

2. The respondent Muhammad Nazeer was appointed as Apprentice in the year 1986 by the appellant establishment at stipend of Rs. 1000/ per month. D.G. Khan Cement Company was an Estate Enterprises when he was appointed. It was disinvested and it started functioning from January 1993. The services, terms and condition of the respondent were not changed by the new administration because of devotion, hardworking, honesty. The respondent was gradually up graded with same terms, condition and nature of work rather responsibilities were increased to the extent of supervision of dispatch department. He was serving as Manager Excise when his services were terminated vide order dated 05.04.2010 (Ex.P.2) informing him that his services are no more required by company. The respondent being aggrieved by the said order made grievance petition before the learned trial court.

3. The grievance petition was contested by the respondents/ appellants and it was alleged that the respondent was serving in the appellant establishment as Manager Excise and drawing monthly salary of Rs. 79100/-. He had been writing annual confidential reports of his subordinates and also recommended confirmation, extension of contract period of workers of his sections and had been recommending leave applications, therefore he was not a worker / workman and as such the grievance petition was not maintainable before the labour court.

4. The learned trial court after recording the evidence and hearing the parties accepted the grievance petition, hence the present appeal.

5. The learned counsel for the appellant has contended that the respondent was performing the duty of Manager Excise at the time of his services were terminated, therefore he was not a worker/ workman and as such labour court has got no jurisdiction to adjudicate the matter in dispute but the learned trial court ignoring this aspect of the matter has accepted the grievance petition erroneously. Learned counsel for the appellants has placed reliance on 2018 SCMR 376, 2018 PLC 28 and 2005 SCMR 1049.

6. On the other hand learned counsel for the respondent has contended that the respondent was performing his duty in cement dispatch department of the marketing division and has been maintaining record of the cement stock receipt its dispatch and balance in stock for audit and reconciliation. He had been performing manual work, therefore the learned trial court has rightly held him to be a workman and the impugned judgment is in accordance with law. Learned counsel for the respondent has also contended that the appeal has not been properly filed. Learned counsel for the respondent has placed reliance on 2001 CLC 1337 and 2009 YLR 32.

7. I have heard learned counsel for the appellant as well as learned counsel for the respondent and has perused the available records.

8. Admittedly, the respondent is an employee of the D.G.Khan Cement Factory and was serving under the appellant establishment, therefore the appellant establishment has rightly assailed the legality of the judgment passed against it through its Managing Director.

9. It is an admitted fact that the respondent was appointed apprentice in the year 1986. At the time of termination of his services vide impugned order dated 05.04.2010 (Ex.P.2) he was performing the duty of Manager Excise. According to the Ex.P.2 the respondent was informed that his services were no more required by company, terminating his services with immediate effect in accordance with the service rules applicable on him in lieu of notice.

10. The respondent while appearing as PW-1 in his cross-examination has admitted that he was serving as Manager in D.G. Khan Cement Factory, however he has stated that no person was working under him. He has denied that he has been signing ACRs and had been recommending for promotion of the employees . He has further denied that he used to recommend for the confirmation of the persons serving in dispatch branch. He has also denied that the contact period of the employees was extended on his recommendations. Khawar Saeed Rw-1 appeared in rebuttal who has stated that the respondent was performing the duty of Manager Excise and it was in his duty to recommend the leave applications of his subordinates and to initiate ACRs of the subordinates as well. The appellant had also produced in evidence, the copy of ACR of Haseeb Raza AJO in the sales and dispatch department Ex.R.1, copy of ACR of Muhammad Miraj AJO of sales and dispatch department Ex.R.2, copy of ACR of Muhammad Aamir Iqbal AJO Ex.R.3 which were initiated by the present respondent. The appellant has placed on record copy of letter containing request for confirmation of Muhammad Usman Akmal Junior Officer initiated by the present respondent Ex.R.4, the request for confirmation of Talib Hussain Dispatch Assistant Ex.R.5, request for confirmation of Muhammad Haleem Dispatch Assistant Ex.R.6, request for extension of period of Muhammad Sajid Ex.R.7, request for the appointment of the office boy Muhammad Sajid Ex.R.8, request for confirmation of Usman Akmal working in the sales and dispatch department Ex.R.9 initiated and recommended by the respondent. The appellant has placed on record the leave applications of Muhammad Ashfaq J.A.M Ex.R.11, Muhammad Aamir lqbal AJO Ex.R.12, Rana Muhammad Ramzan A.M Ex.R.13, Muhammad Shahid AJO Ex.R.14, Muhammad Adeel AJO Ex.R.15, Awais Mazhar AJO Ex.R.16, recommended by the respondent being head of the department. All the aforementioned documents have revealed that the respondent was not serving in the establishment as worker/workman. He was incharge of section Manager Excise and this fact has also been mentioned by the respondent himself in paragraph No. 3 of the grievance petition in the following manner:- "Because of devotion, hardworking, honesty. The respondent was gradually up graded with same terms, condition and nature of work rather responsibilities were increased to the extent of supervision of dispatch department."

11. The respondent was serving as Manager Excise and drawing the monthly salary of Rs. 79100/- at the time of his termination from service. From the above mentioned documentary evidence it is crystal clear that he was incharge of section and was performing the supervisory duty. He has initiated ACRs, made the recommendation for promotion and extension of period of service and has also recommended leave applications of his subordinates, therefore he was not a workman. The learned trial court has failed to properly appreciate the evidence on record and has wrongly held that the respondent was a worker / workman, therefore the impugned judgment is not sustainable in the eyes of law. The case law produced by the learned counsel for the respondent is not directly applicable to the facts and circumstances of the present case. The impugned judgment is hereby set-aside and the appeal is allowed and in consequence the grievance petition of the respondent is deemed to be dismissed. File be consigned to the records room after due completion. The trial court's records be sent back immediately. ZC/2/PLT Appeal allowed.