1988 PLP 487 (PLC)

‑S.2(xxviii), Exception(b)‑‑"Workman"‑‑Ouster from definition of workman‑‑Conditions‑‑Duties should be supervisory and wages should exceed Rs.800 p. m.‑‑Allowance towards high cost of living given or, account of dearness was not of permanent natures and could be discontinued when dearness ends‑‑Amount of wages to be calculated after deducting such allowance. M. Shamshir lqbal Chughtai for Appellant. Respondent in person. Date of hearing: 8th December, 1987. This is an appeal directed against the decision dated 30‑9‑1987 recorded by learned Presiding Officer, Punjab Labour Court No.8, Bahawalpur whereby the respondent has been directed to be reinstated in service with back benefits.

2. The allegation against the respondent was that he went out of the factory gate without a pass and came back after half an hour. The case of the appellant is that the allegation made against the respondent amounts to misconduct and that he was a supervisor and not a workman, therefore, the Labour Court had no jurisdiction. I do not find any force in the argument of the learned counsel for the appellant that the allegation made against the respondent amounts to misconduct. The respondent remained absent only for half an hour whereas continuous absence of more than ten days amounts to misconduct. If without getting a pass the respondent went out of the factory, he violated the Rules which does not amount to any misconduct. The appellant therefore, wrongly dismissed the respondent from service.

3. No doubt the respondent admitted in cross-examination that one Assistant Mechanic was under him. But according to exception (b) to section 2(xxviii) of Industrial Relations Ordinance, 1969; there are two conditions for ousting a person from the definition of 'workman' one is that his duties should be supervisory and the second is that his wages should exceed to Rs.800 per month. So far as the wages are concerned the appellant produced absolutely no evidence. The respondent in his statement deposed that his wages including dearness allowance Rs:190 were Rs.975 per month. High cost of living allowance is given on account of dearness, which is not permanent. Whenever dearness ends this allowance can be discontinued. Deducting Rs.190 from the pay wages become less than Rs.800 and thus the respondent was not ousted from the definition of 'workman' given in section 2(xxviii) of Industrial Relations Ordinance, 1969.

4. However, full back benefits have been wrongly allowed by the learned lower Court to the respondent. He in cross‑examination said that he took services in Roze Textile Mills Limited with effect from 1‑8‑1987 but before that he was jobless. He therefore, is not entitled to back benefits from the date of dismissal to 31‑7‑1987.

5. As a result the appeal is partly accepted and maintaining the order of reinstatement, back benefits for the period from 1‑8‑1987 to the date when the learned lower Court directed his reinstatement are disallowed. A. E. /473/Lb.P Appeal partly accepted.