2000 PLP 585 (PLC)

4. As regard the first plea, Mr. Humayun submitted that the respondent, by virtue of being employed as Data Processing Manager, was not, substantially, required to do clerical or manual work. He, in fact, used to supervise direct and control the .other workers of the Computer Section. He used to recommend and O.K. the leave applications and also verify the claims of the other workers in regard to various benefits, accrued to the workmen. He used to recommend employment of fresh employees. In support of his submissions, he referred to a number of documents in this behalf.

5. In support of the second plea, referring to section 4 of the Newspaper Employees (Conditions of Services) Act, 1973, as in force, it was argued by him that the services of the respondent/employee was terminated in accordance with section

4. Reference was also made to letter of termination, appearing at page 17 of the file.

6. Regarding the third contention, learned counsel submitted that he filed Miscellaneous Application No.52 of 1999 alleging that the respondent was gainfully employed with M/s. B.O.C. Pakistan Limited (previously Pakistan Oxygen Limited), copy whereof was duly received by the representative 4f the respondent on 1‑3‑1999, as also endorsed by him on the application, in token of receipt. This fact has not been controverted by filing any counter‑affidavit by the respondent.

7. To, rebut the first plea, raised by the learned counsel for the appellant that, the respondent was not a workman, Mr. Khalil‑ur‑Rehman, Representative of the respondent, placed his reliance on the following authorities namely:‑‑ (1) Allied Bank of Pakistan Ltd. v. Muhammad Humayun Khan and others (1988 SCMR 1664). (2) Security Papers Limited v. Sindli Labour Appellate Tribunal and others (PLD 1988 Supreme Court 180). (3) Mustehkum Cement Limited v. Abdul Rashid and others (1998 PLC 172). In the first‑named case, it was, inter alia, observed by the Hon'ble Supreme Court that: "We called upon the learned counsel for the appellant whether the character of duties and functions of the respondent in order to prove the nature of duties at the time the impugned action was taken against him was produced in evidence but the learned counsel frankly stated that no evidence to that effect was produced at any stage of the case. Since the challenge in this appeal is with regard to a finding of fact and we, on the other hand, notice that the said finding of fact is established in evidence, it would not be legitimate for this Court to interfere. The appeal is, therefore, dismissed. The parties are however left to bear their own costs." In the second‑named case, it was, observed by the Hon'ble Supreme Court that. "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well‑settled. It is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work of a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical world as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted. " In the third‑named case, it was also observed by the Hon'ble Supreme Court that. "Nature of duties mainly performed by respondent would definitely bring him within definition of 'workman' as embodied in section 2(i), West Pakistan Industrial, and Commercial Employment (Standing Orders) Ordinance, 1968, High Court was, right in holding respondent to be 'workman' and had rightly set aside findings of Labour forums wherein respondent was not deemed to be workman. High Court's findings to that extent were affirmed by Supreme Court in circumstances."

8. The question whether the respondent is a workman or not is a question of fact or at the most a mixed question of fact and law,, as it involves the interpretation of two enactments wherein the definition of worker and workman has been defined. Admittedly, no job description was given to the respondent at the time of employment or at any time during the course of employment. Furthermore, the appellants have also failed to file any job description with the reply statement or with the affidavit‑in‑evidence. Our superior Courts have expressed their view, time and again, in a number of judgments that neither the designation nor the salary is a factor for the determination of an employee to be a workman or not. The only criterion is the work itself that an employee has to (to As such, the actual nature of work should be a deciding factor to determine the status of an employee regardless of the designation, even by the employer. The designation, some time, decorative, do not enhance the status of an employee. The main and substantial work of the respondent was connected directly, with performing the skilled manual labour in the field relating to computer. His recommending appointment of new entrants or recommending leave applications, was merely incidental to his main job. As such I find myself in agreement with the learned Presiding Officer that the respondent was a workman.

9. Learned counsel for the appellant placed his reliance on an unreported case, decided by me, in Appeal No.KAR‑378 of 1998 (S.M. Iylas v. Reckitt and Colman of Pakistan), but that is distinguishable on facts.

10. As regards the second plea relating to termination of employment, reference may be made to section 4 of the Newspaper Employees (Conditions of Services) Act, which provides that the service of a newspaper employee shall not be terminated by a newspaper establishment without good cause shown, through a notice, in writing, of such termination. It would be beneficial to reproduce section 4, in its entirety as under:‑‑ "

4. Termination of employment ‑‑‑The services of a newspaper employee shall not be terminated by a newspaper establishment without good cause shown, through a notice, in writing, of such termination‑‑ (a) of one month, if the total period of continuous service of the newspaper employee with the newspaper establishment is not less than three months but less than two years; (b) of two months, if ‑the total period of such service is not less than two years but less than three years; and (c) of three months, if the total period of such service is not less than three years: Provided that, if the order of appointment of the newspaper employee provides notice of a longer period, notice shall be given in accordance with the terms of such order: Provided further that the services of a newspaper employee may be terminated at any time on payment of wages in lieu of the requisite notice. "

11. The question is whether any "good cause" has been shown together. The showing of "good cause" is a subjective determination of the employer or the cause being "good" or "bad" is to be interpreted objectively. I am of the view that when the Legislature provided "good cause to be shown", it is open to be interpreted by the Court whether a sufficient good cause has been shown or not. In the instant case, without giving a notice of show cause as to why his employment should not be terminated as his work was below the standard or not up 'to the mark, can only be said to be a subjective determination without giving the employee an opportunity for furnishing of explanation whatsoever. Good cause means a substantial reason; one that affords a legal excuse. In other words, legally sufficient ground or reason. There cannot be a fixed definition of good cause. The phrase "good cause" depends upon circumstances of each case. In Black's Law Dictionary, good cause has been defined as a relative and highly abstract terms, and its meaning must be determined not only by verbal context of statute in which term is employed, but also the context of action and procedures employed.

12. Mr. Khalil‑ul‑Rehman, has placed his reliance on a number of cases reported as:‑ (1) Independent Newspapers Corporation v. Chairman, Sindh Labour Appellate Tribunal (1995 PLC (C.S.) 262). (2) Syed Mumtaz Ahmed v. Federation of Pakistan (1994 PLC (C.S.) 810. (3) M/s. Daily Mashriq v. Nafees Ahmed Bazmi and others (1992 PLC 314). (4) Syed Khalil v. Independent Newspaper Corporation (Pvt.) Ltd and others (1991 PLC 647). (5) Karam Hussain v. Daily Mashriq through Chief Executive and 2 others (1992 PLC 136). In the first‑named case, it was held that, "service of newspaper employee cannot be done away within an unceremonious manner without assigning any reason or giving any show‑cause notice". It was further observed that, "the provision of section 44 of the Act would show that in case of termination of service of a newspaper employee the same could be done subject to showing good cause and giving a notice as contemplated therein. Therefore, the primary consideration is that a good cause has to be shown". In the second named case, it was observed that,"...it is to be seen that the employment of the petitioner was protected and governed inter alia by the Newspaper Employees (Conditions of Services) Act, 1973. Section 4 of the Act provides that the services of Newspaper employee cannot be terminated by newspaper establishment without good cause having been shown through a notice in writing for such termination". In the third‑named case, it was observed that, "the employees of newspaper industry according to the Newspaper Employees (Conditions of Services) Act of 1973 are governed by the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and their services under Section 4 of the aforesaid Act cannot be terminated without a good cause shown in writing". In the fourth‑named case, it was observed that, "an option has been given by the second proviso that instead of giving notice for the requisite period, wages for such period can be paid. However, in such a case also where action is taken under the second proviso, for termination of service of a newspaper employee, good cause has to be shown by the newspaper establishment. Second proviso in section 4 does not dispose with the requirement of the section of good cause being shown for termination of the services of a newspaper employee whether notice of the period is given as provided in the main provision or instead wages are paid in lieu of the requisite notice period". In the fifth‑named case, it was observed that, "services of employee in cafe admittedly were terminated not only without showing good reasons, but were terminated without providing him opportunity of being heard".

13. Learned counsel for the appellant, exercising his right of reply to the submissions, made by the representative of the respondent, submitted that under section 4, without the second proviso, action can be taken for terminating the services of a newspaper employee subject to good cause being shown, but in case the employer exercises power available under the second proviso, services of a newspaper employee can be terminated without good cause being shown by making payment of wages in lieu of notice. To me, the contention seems to be misconceived. In fact, an option has been given by the second proviso that instead of giving notice for requisite period, wages for such period can be paid. However, in such a case also where action is taken under the second proviso, for termination of service of a newspaper employee, good cause has to be show by the newspaper establishment. Second proviso in section 4 does not dispense with the requirement of the section of good cause shown for termination of the services of a newspaper employee whether notice of the period is given as provided in the main provision or instead wages are paid in lieu of requisite notice period. In my humble view, in either case, good cause has to be shown. If an authority is needed, the same be found in the case reported as Syed Khalid v. Independent Newspaper Corporation (Pvt.) Ltd. and others (1991 PLC 647). In the instant case, the respondent's services were terminated without giving him an opportunity of being heard, which is also contrary to the principles of natural justice.

14. Lastly, Mr. Humayun submitted about the back benefits. It is correct that the appellant submitted an application, dated 1‑3‑1999 in this Tribunal, specifically pointing out that the respondent has been gainfully employed in the management cader with M/s. B.O.C. Pakistan Limited (Pakistan Oxygen Ltd.), situated at West Wharf Road, Karachi. Copy of the said application, though received by the representative of the respondent, no counter‑affidavit was filed contradicting the said allegation. On my query Mr. Khalil‑ur‑Rehman, admitted to have received copy of the said application and his failure to file any reply to the said application by way of filing counter‑affidavit or otherwise. He also did not controvert the same even during the course of his arguments.

15. As such, the order, impugned in this appeal, passed by the learned Presiding Officer, Sindh Labour Court No.5 with regard to reinstatement is hereby maintained but without back benefits. H.B.T./329/K/(Lab. Trib.) Order accordingly.