1976 PLP 181 (PLC)

A Personnel Officer being an agent of the Management is always supposed to act according to the wishes of the Management but this fact would not change the nature of his duties and would not take him out of the category of the Manager and place him in the lower category of a worker. The assertion that he performed administrative functions under the instructions of the Management is therefore of no help. Muhammad Aqil v. Sind Labour Appellate Tribunal P L J 1974 Kar. 252 ref. Dost Muhammad Cotton Mills Limited v. Muhammad Abdul Ghani P L J 1975 S C 385 distinguished. Shaikh Mir Muhammad for Petitioner. H. A. Jaffari for Respondents. The petitioner has assailed the order dated 27th February 1974, passed by the Labour Court upholding the order of the Junior Labour Court, dated 20th September 1973, whereby the re-instatement of the respon dent No. 1 was ordered.

2. The facts briefly stated in this case are that the petitioner is a public limited company having been incorporated under the Companies Act, 1913. The respondent No. 1 was employed as a Personnel Officer by the petitioner on 7th June 1973. According to the agreement of service of the respondent No. 1 it was to continue for two years of which initial three months were to be treated as probationary period. His salary was fixed at Rs. 750 per month.

3. During the probationary period the respondent No. 1's services were not found satisfactory and he was removed from employment without any notice. The respondent No. 1 challenged the termination of his services in the Junior Labour Court under section 25-A of Industrial Relations Ordinance, 1969, after giving a grievance notice to the petitioner on 11th August 1973. The Junior Labour Court ordered his re-instatement with half back benefits. An appeal was preferred against this order in the Labour Court by the petitioner which was dismissed and the order of the Junior Labour Court was modified to the extent of allowing half back benefits up to the date of order of the Junior Labour Court and full back benefits thereafter. The petitioner has now challenged the orders of the Junior Labour Court and the Labour Court before this Court through this writ petition.

4. The first contention of the learned counsel for the petitioner is that he termination of the services of the first respondent was in violation of standing order 12 (3) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (hereinafter called the Standing Orders 5rdinance, 1968). The Standing Order 12 (3) of the Standing Orders Ordinance, 1968 provides that the services of a workman shall not be terminated nor shall the workman be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state the reasons for the action taken against him. His contention is that in the first respondent's case admittedly no notice was given and therefore this was a case in which the petitioner had violated the provisions of Standing Order 12 (3). He has tried to support his argu ment by making reference to a case decided by Sind Labour Appellate Tribunal; Karachi reported in P L J 1973 Tr. C

40. In this case the Chairman of the Sind Labour Appellate Tribunal had held that the provisions of Standing Order 12 (3) of the Standing Orders Ordinance, 1968 extended to the probationers also, Needless to say that this case is not binding upon this Court, Besides this, the mere perusal of this provision of law makes it glaring that Standing Order 12 (2) does not necessitate the service of notice before the termination of services of a probationer and therefore the argument of the learned counsel in this respect is fallacious. Standing) Order 12 (2) is reproduced below for convenience of reference Standing Order 12 (2).-No temporary workman whether monthly rated, weekly-rated, daily-rated or piece-rated and no probationer or badli shall be entitled to ,inv notice if his services are terminated by the employer nor sail any such workman be required to give any notice or pay wages in lieu thereof to the employer if he leaves employment o; his own accord. It is admitted feature in this case that according to the service contract the first respondent was to remain a probationer for the first three months. His services were terminated before completion of three months and there fore no notice was necessary because Standing Order 12 (P L J 1974 Kar. 252) creates an exception to the general rule laid down in Standing Order 12 (3) that every workman will be served with a notice in writing before his services are terminated. The removal from the service of the first respondent without al notice cannot therefore be challenged as illegal or without lawful authority.

5. The next point raised by the learned counsel for the petitioner is that the first respondent was not a workman and therefore the provisions of Industrial Relations Ordinance, 1969 did not apply to him. His contention is that the first respondent was performing the duties of administrative nature. The Junior Labour Court has in its order-held that the first respondent ad mitted before him that he had signed an agreement with the Workers Union on 12th July, 1973 on behalf of the Management but he has added that he did so on the directions of the Governing Director namely Haji Sualeh Mohammad. He has also admitted in his statement before the Junior Labour Court that he performed several other functions which can unhesitatingly be termed as managerial functions. The portion of the Junior Labour Court's orders which refers to these functions is reproduced below: - He had signed the agreement dated 12-7-1973 between the Management and the Union, under instructions of the Governing Director Haji Sualeh Mohammad, likewise charge-sheet, suspension letters, leave applications were signed by the applicant under advice and in accordance with the wishes of the Management. From the paragraph of the judgment of the Junior Labour Court reproduced above it comes out crystal clear that the functions assigned to the first res pondent were of administrative nature because he signed an agreement with the Union of the workers on behalf of the Management. He charge-sheeted, suspended and allowed and refused leave to the workers as such it cannot be said that he was a workman. According to the definition of the worker given in the Industrial Relations Ordinance, 1969, a person, even if he draws a salary of less than Rs. 800.00 per month, is to be considered an employer if he performs the functions of managerial or administrative nature. The learned counsel for the petitioner has relied upon Mohammad Aqil v. Sind Labour Appellate Tribunal (P L J 1974 Kar. 252). In this case it is held that a person to do any skilled or unskilled, manual or clerical work does not fall within the definition of the workman and such person is not therefore entitled to the benefits ordinarily available to a workman . On the other hand the learned counsel for the first respondent has placed reliance on Dost Mohammad Cotton Mills Limited v. Mohammad Abdul Ghani (P L J 1975 S C 385). In this case it was held that "the definition of a workman given in the Standing Orders Ordinance, 1968 includes a Chief Accountant drawing a monthly salary of Rs. 1,050.00 by virtue of the fact that he has been acting under the instructions of Incharge of Accounts Section of the Company." Placing reliance on this case he has argued that the first respondent was also working under the instructions of Governing Director Haji Sualeh Mohammad and therefore it cannot be said that he signed the agreement with the Union in his capacity of Personnel Officer. The case of the accountant is distinguishable front that of the Personnel Officer. An Accounts Officer does not directly deal with the workers and he in a way performs the duties which are more or less of clerical nature. On the other hand a Personnel Officer is Management's Representative and directly deals with the workers on behalf of the Management and performs such duties and functions which a Managing Director or Manager normally performs. In this case also the first respondent was appointed as a Personnel Officer and by merely saying that he signed the agreement with the Union on behalf of the Management under the directions of the Governing Director Haji Sualeh Mohammad he cannot be believed to have been functioning in any such capacity in which the workers were not directly responsible towards him. He himself admits that he used to used barge-sheets suspension letters and grant or refuse leaves. However, he says that he used to do all these things according to the wishes of the Management. A Personnel Officer being, an agent of the Management is always supposed to act according to the wishes of the Management but this fact would not change the nature of hiss duties and would not take him out of the category of the Manager and place him in the lower category of a worker. The assertion that he performed administrative functions under the instructions of the Management is therefore of no help to the first respondent.

6. The upshot of the above discussion is that the first respondent had been performing the functions of managerial nature and therefore he was not covered by the definition of a "workman" given in Industrial Relations Ordinance, 1969. Consequently, his application under section 25-A of the said Ordinance was incompetent and untenable in law.

7. For the reasons given above I find that the orders of the Junior Labour Court and Labour Court impugned in this petition are illegal and. without jurisdiction. The petition is accordingly allowed and the impugned orders are set aside. The parties are however, left to bear their own costs. Petition allowed.