1974 PLC 49 (PLP)

(6) In view of the dismissal of the said suit the petitioner is precluded to file the present petition before this Honourable Court. (7) The respondent Mills is being run under the authority of Punjab Government. In matters of service, conduct an discipline, statutory results of Government servants are applicable to the employees of the respondent Mills. So, therefore, petitioner has no locus stands to file the present petition. The parties were given opportunity to produce their evidence. The petitioner examined two witnesses in all including himself. His counsel Syed Shabbir Hussain Shah, produced the copies of reports of the O. S. D. and the Office Superintendent of the respondent Mills and closed his case. The respondent examined Rai Ahmed Khan in rebuttal and closed his case. Now we proceed to determine the preliminary Objection No.

1. The learned counsel for the respondent has drawn my attention to certain admissions made by the petitioner in cross‑examination and contended that the petitioner does not fall in the definition of a workman. It is admitted by the petitioner that he was the Incharge of the Cotton Branch. According to him, the persons incharge of different branches of the Mills are the Sectional Heads of those branches. It is in his statement that the Sectional Heads manage the affairs of their branches but except the Spinning Master, no other Sectional bead bad the authority to appoint or punish any worker. He has further admitted that the bill Exh. R. 4 was put up before him and he had recommended that 90 per cent. advance against the cotton received should be allowed under the contract. It is also in the statement of the petitioner that he used to order payment against cartrage and Palleydari bills prepared by the Assistant Cotton Inspector, Mr. Akhtar Naseem. Relying on the above admissions, the learned counsel for the respondent has vehemently argued that the petitioner falls within the definition of employer and the petition is not maintainable. Rai Ahmad Khan R. W. 1 Incharge Ginning and Pressing Section of the respondent Mills has stated that there are 9 or 10 branches in the respondent industry and each branch has got its own Sectional head. who exercises managerial powers prescribed by under bye law No. 33 of the respondent Mills including the power to appoint, dismiss or take disciplinary action against their subordinates getting Rs. 100 or less per month. Bye‑laws of the respondent Mills are on the file as Exh. R‑

1. Bye‑law No. 33 is as follows :‑

33. The duties of the managers shall be as follows for their respective branches subject to their assignment by the Managing Director‑ (1) to appoint, suspend or dismiss employees drawing Rs. 100 or legs subject to the control of the Managing Director of the committee ; (2) to receive deposits and issue receipts as prescribed by the committee ; (3) to sell manufactured goods and to buy machinery, raw material, equipment and other requirements as directed by the committee or the Managing Director ; (4) to pay money due from the Society ; (5) to incur contingent expenditure subject to the sanction of the committee ; (6) to sign on behalf of the Society and conduct its correspondence and to perform all duties assigned to him by the Managing Director or the committee ; (7) to summon and attend all meetings of the managing committee the sub‑committee and the general meeting and to record the proceedings. It is to be noted that the above duties are to be exercised by the Managers of different branches subject to their assignment by the Managing Director. The respondent has failed to produce any documentary evidence regarding the assignment of these duties to the petitioner by the Managing Director. This bye‑law therefore cannot be relied upon to contend that the petitioner exercised the powers mentioned at Nos. 1 to 7 above. On the other hand, office order Exh. P. 2 shows that the duties assigned to the petitioner were to maintain the record of the cotton stock and cotton purchases with the help of the Cotton Branch running under his supervision. All the cotton purchases were to be made with the consultation of Produc tion Manager and the Administrator. No doubt the petitioner has admitted that the Sectional heads manage the affairs of their branches and that he had been passing orders for the payments against certain bills but these actions do not bring him within the definition of employer. According to section 2(viii), employer in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes the person mentioned in clauses (a) to (e) of the said section. There is no evidence that the petitioner had the power to employ workmen in the respondent Mills. It is admitted by both the parties that respondent Mills is now being run under the authority of the co‑operative department of the Punjab Government. It is also admitted that the Managing Committee of the respondent Mills was superseded and the Administrator appointed by the Registrar, Co‑operative Societies is exercising all the powers of the Managing Committee. The notification regarding the appointment of the Administrator is Exh. P. 3 on the file. In the instant case as the Mills is being run under the authority of the Co‑op. Department of the Punjab Government, therefore, clause (c) of section 2 (xiii) is attracted to it and the Administrator is the employer in this case. The special provision under clause (d) of the above section lays down that for the purposes of distinction from the category of "worker or workmen" officers and employees of a department of Central Government or a Provincial Government or a local authority, who belong to the superior, managerial, secretariat, directional, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers. This special provision is inapplicable to the instant case because the petitioner is not an officer or an employee of a department of the Central or Provincial Government or a local authority and has not been notified in the official Gazette for the purpose mentioned in the said provision. He is an employee of the Mills as is clear from the order of appointment Exh. P.

1. I ‑am aware that according to clause (b) of section 2(viii), any person responsible for the management, supervision and control of the establishment has been included within the definition of employer, but this clause is not attracted because the petitioner was the incharge of the Cotton Branch and not of the establishment, which in the instant case is the Khane wal Co‑operative Textile Mills Ltd., Khanewal. Clause (e) of section 2(viii) too is not attracted to the instant case and is only applicable to the establish ments other than those run by or under the authority of any department of the Central or Provincial Government or a local authority. I am, therefore, of the view that the petitioner does not fall within the definition of employer and is, therefore, a workman within the meaning of section 2, clause (xxviii). The preliminary objection No. 1 is therefore overruled. Preliminary Objection No.

2. As the petitioner has been held to be a workman and the petition is against his employer, therefore, this Court has the jurisdiction to try the petition. Objection No. 2 is also overruled. Preliminary Objections Nos. 3 and

4. The instant petition has been moved by the petitioner against the order of termination of his services and it was not necessary to challenge the order of the abolition of his post passed by the Registrar nor was the Registrar a necessary and proper party in this case. The appointment order of the petitioner Exh. P. 1 shows that he was appointed by the Administrator and the respondent Mills through its Administrator has been properly impleaded as respondent. Both the objections are overruled. Preliminary Objection No.

5. The petitioner had filed a civil suit for a declaration to the effect that the order of the Registrar abolishing his post was illegal and void. In the instant case, the petitioner has challenged the order of termination of his services and not the first mentioned order passed by the Registrar. Moreover, Industrial Relations Ordinance has been promulgated for regulation of relations between employer and workmen and the avoidance and settlement of any differences or disputes arising between them and the Industrial Courts have been established by the Government under section 35 of the said Ordinance for determining and adjudicating the disputes relating to the rights of the employer and workmen and their jurisdiction in such matters is exclusive. The civil Court cannot take cognizance of such matters and in this view of the matters, the suit filed by the petitioner in the civil Court does not B constitute a bar to the instant petition. This objection is also overruled. Preliminary Obiection No.

6. The respondent has not produced any evidence to show that statutory rules applicable to the Government servants are applicable to the employees of the respondent Mills. On the other hand, the order of appointment of the petitioner Exh. P. 1 clearly shows that his appointment was made subject to the rules and regulations governing the employees of the Mills. In this order, it is nowhere stated that the rules applicable to the Government servants will apply to the petitioner. The objection being without any substance is rejected. Now coming to the factual side the case, of the petitioner has contended that in fact he has been punished for the so‑called misconduct but an order of termination simplicitor on the ground of abolition of his post has been passed against him and he has been thrown out of service without an independent enquiry. The contention is well founded. The notice Exh. P. 4 was sent to the petitioner to explain as to why disciplinary action should not be taken against him. This notice was based on the report of O. S D. as is clear from the notice itself. The notice shows that the allegations were that one Mr. Azeem brother of the Assistant Cotton Inspector who was not an employee of the Mills was authorised to take the weighment of cotton bales on behalf of the Mills and on checking, two bales were found 8J seers short. The learned counsel for the petitioner produced the copies of the reports of the O. S. D. and the Office Superintendent duly attested by the Administrator of the Mills, which show that the O. S. D., in view of his report against the petitioner, requested the Administrator to place the Cotton Branch under the direct supervision and control of Rai Ahmed Khan. The Administrator agreed to this prop8sal. The report of the Office Superinten dent is to the effect that before entrusting the supervision to Rai Ahmed Khan, the question of utilisation of the services of the petitioner and the Assistant Cotton Inspector should be considered as according to the new policy of the Government, no worker/employee could be discharged or dismissed before bringing the matter to the notice of the Government. Ultimately, a case for the abolition of the posts of the petitioner and his Assistant was prepared and sent to the Registrar. It is admitted that the post of the petitioner and that of the Assistant Cotton Inspector were abolished by the Registrar on the basis of the reports detailed above. The reports of the Officer on Special Duty, the Office Superintendent and the action of the Registrar amply show that the employer actually punished the petitioner for misconduct without complying with the procedure prescribed in Standing Order

15. I am not convinced that the Cotton Branch of the Mills has been closed indefinitely on account of losses as contended by the respondent because the report of the O.S.D. shows that he had requested that Administrator to place this branch under the direct supervision and control of the Incharge of the Factory and the Administrator had agreed to this proposal. The order of termination of the petitioner being in contraven tion of the procedure prescribed in Standing Order 15 and the principles of natural justice is unsustainable. For the foregoing reasons, I accept this petition, set aside the order of termination of the petitioner and direct the management to re‑instate him with full back benefits within a fortnight from today.