2007 PLP 545 (PLC)

Ss. 2(xxx), 46, 47(3) & 48

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15(3)(e)

Termination of service

Grievance petition

`Workman', determination of

Appeal to High Court

Services of employee were terminated after holding inquiry against him on allegation of late coming and unauthorized absence from duty for about six months which amounted to misconduct

Labour Court, accepting grievance petition, reinstated employee in service, but without back -benefits

Employer-Bank had filed appeal against order of reinstatement of employee in service, whereas employee had filed appeal for grant of back-benefits

Bank had challenged findings of the Labour Court on the ground that employee being a Sales Officer was not `workman' as he did not perform manual or clerical work

Contention of Bank was that employee could be doing some manual or clerical work in order to accomplish his functions, but predominant functions and duties of Sales Officer were of specialized nature designed to achieve the end of promoting sales to meet certain target in competitive field with other

Mere designation of an employee, could not be the determining factor as to his status and the nature of job and duty was to be kept in view

Employee was employed as Assistant in the Bank and was assigned the duty of Salesman

Employee by doing such small manual work connected with the sales his status could not be changed nor for that reason alone he could be regarded as `workman'

Such was because his main job was in sales for which ho had to use faculty of his mind and wisdom and not only manual or clerical work

Grievance petition by employee on the ground of his being a salesman against his termination, was not maintainable as he was not `workman' within the meaning of S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

Report submitted by Enquiry Officer had confirmed that employed committed acts of misconduct by unauthorised absence/late coming and not performing his duty

Employee fell within the definition of "Salesman", and as such no ground for interfering with the findings of Enquiry Officer followed by letters of termination, had been-made out

Appeal was allowed and judgment of Labour Court was set aside

Employee having failed to place anything on record to establish that he remained jobless and unemployed till his reinstatement, he would not be entitled to back-benefits

Appeal of employee in that respect, was dismissed. Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and others 2005 SCMR 1049; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and others 2003 PLC 424;. Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal, and others 1984 PLC 1353; Muhammad Shafique v. Messrs Knoll Pharmaceuticals Limited 2003 PLC 226; Naeem Wahid v. Sindh Labour Appellate Tribunal and others 1984 PLC 352; Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2004 PLC 288; Muhammad Farooq v. Messrs Iqbal Silk Mills Ltd., Karachi 1969 PLC 439; Manager, Planning, Formation and Control, Novertis (Pakistan) Ltd. and another v. Muhammad Arif NLR 2005 Lahore 90; Ahmed Ali v. Messrs General Tyre and Rubber Company of Pakistan Ltd., Karachi 1984 PLC 122; M. Arunagiri v. Bata India Ltd. and others W.A. No.7574 of 1987 of India High Court; Riaz Ahmed Malik v. Administrator Municipal Corporation, Bahawalpur and another 2004 TD (Lahore) 442; Pakistan Automobile Corporation Ltd. v. Mansoor-ul-Haque and others 2004 PLC (C.S.) 1151; Bibi Khatoon v. Abdul Jalil PLD 1978 SC 212; National and Grindlays Bank Ltd. v. Homi F. Behrana PLD 1979 Kar. 692; Shahzar Khan v. Labour Court No.4, Karachi and others 1977 SCMR 106; Messrs Pakistan Herald Ltd. Karachi v. Victor Sunny and another 1996 PLC 66; Pakistan Herald Workers' Union v. Sindh Labour Appellate Tribunal and others 1996 SCMR 1827, Dost Muhammad Cotton Mills v. Muhammad Abdul Hani PLJ 1975 Kar. 25; Public Works Department Government of Punjab, Lahore v. National Industrial Relations Commission and another 2004 SCMR 27; Shaheen Air Port Services v. Haider Abbas Rizvi 2006 PLC 169, Ch. Masood Ahmed v. Messrs Pakistan Machine Tool Factory and others 2004 PLC 343; Dilkhusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1982; Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company. Employees Union Dacca and others PLD 1961 SC 403; Matloob Hassan v. Brook Bond 1992 SCMR 227; Mustehkam Cement v. Abdul Rahim 1998 SCMR 644 and Mukarram Shah v. Sindh Labour Appellate Tribunal and others 2005 PLC 14 ref. JU DGMENT ZIA PERWEZ, J.

These arc two labour appeals arise out of the judgment, (dated 14-6-2006 in Grievance Application No.15 of 2005) of the learned Sindh Labour Court No.VII, Sukkur, whereby the appellant in Labour Appeal No.16 United Bank Ltd. (hereinafter referred to as appellant) was ordered to. reinstate the respondent Athar Ali Mangi (hereinafter referred as the respondent) in service within 30 days of the impugned order without back-benefits while Labour Appeal No.17 of 2006 was filed on the ground of non-award of back-benefits to the respondent. Brief facts of the case are that the appellant is the employer of the respondent employed as an Assistant posted at United Back Ltd. Nishtar Road Branch, Sukkur. The appellant served a detailed charge-sheet and statement of allegations on 16-7-2004 wherein the respondent was charged with late coming and absence from duty pertaining to the period of January, 2004 to June, 2004 amounting to misconduct under the conditions of services. Thereafter, enquiry was held by the Enquiry Officer. Enquiry report confirmed that the respondent committed acts of misconduct by unauthorized absence/late coming and not performing his duty, therefore, show-cause notice was issued and after due process the competent authority awarded punishment by way of termination of service of respondent. Respondent submitted departmental appeal which was not disposed of within statutory period, therefore, service appeal was filed which was disposed of by the impugned judgment, hence these appeals. Heard the learned Advocates and perused the record of the case. Learned Advocate for the appellant has challenged the finding of the trial Court that the respondent was a Sales Officer and not a Workman in law as he did not perform the manual or clerical work. He may be doing some manual or clerical work in order to accomplish his functions but the predominant functions and duties of a salesman are of specialized nature designed to achieve the end of promoting sales to meet certain targets in competitive field with other procedures and finding and pursuing best available clients. In support of his contention, he relied upon the case of Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2005 SCMR 1049, Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and others 2003 PLC 424 and Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal and others 1984 PLC 1353; May and Baker (India) Ltd. and their Workmen (Civil Appeals Nos.319 and 320 of 1960 of Indian jurisdiction), J.&J. Deehane Distributors and State of Kerala and others (O.P. No.3502-of 1970) of High Court of Judicature, Kerala); Burmah Shell Oil Storage and Distribution Company of India Ltd. v. The Burmah Shell Management Staff Association and others (Civil Appeals Nos.1477 and 1478 of 1970 of Indian Supreme Court), Muhammad Shafique v. Messrs Knoll Pharmaceuticals Limited 2003 PLC 226, Naeem Wahid v. Sindh Labour Appellate Tribunal and others 1984 PLC 352 and Nasir Jamal Qureshi v. Sindh Labour Appellate Tribunal and another 2004 PLC 288, unreported decisions of Honourable Supreme Court in (Dilshad Khan Lodhi v. Allied Bank of Pakistan and others C.P.L.A. No.452-K of 2005 (Talat Faruq v. Messrs Chloride Pakistan Limited and another) Civil Petition No.K-145 of 1976 and (National Bank of Pakistan v. Punjab Labour Court No.5 and others) Civil Appeal No.206 of 1988. Learned counsel for the appellant went on to argue that charge sheet specifically mentioned that the respondent was absent without leave and the Enquiry Officer rightly found him to be guilty of misconduct. Respondent is guilty of misconduct as he habitually absented himself for the period of about six months. In support of his contentions, he relied upon case of Muhammad Farooq v. Messrs Iqbal Silk Mills Ltd., Karachi 1969 PLC 439, Manager, Planning, Formation and Control, NOVeI't1S (Pakistan) Ltd. and another v. Muhammad Arif NLR 2005 Lahore 90; Ahmad Ali v. Messrs General Tyre &Rubber Company of Pakistan Limited Karachi 1984 PLC 122 and M. Arunagiri v. Bata India Ltd. and others (W.A. No.7574 of 1987 of Indian High Court). That the respondent has failed to place any material on record to establish his assertion that he remained jobless and unemployed till his reinstatemetl, therefore, he would not be entitled to back-benefits as has been held in case of Riaz Ahmad Malik v. Administrator Municipal Corporation, Bahawalpur and another 2004 TD (Lahore) 442, Pakistan Automobile Corporation Ltd. v. Mansoor-ul-Haque and others 2004 PLC (C.S.) 1151. Learned counsel has further contended that the charge-sheet was well within tune. The extent and scope of examination of inquiry proceedings has been subject to judicial pronouncement, the consistent view is that it is not open for the Labour court to re-examine and re- appreciate evidence recorded in domestic inquiry to come to a conclusion contrary to that taken by the Inquiry Officer. In this context, reliance is placed on the cases of Bibi Khatoon v. Abdul Jalil PLD 1978 SC 212 and National and Grindlays Baal: ,Ltd, v. Homi F. Behrana PLD 1979 Kar.

692. It is further contended that the respondent was not performing any manual or clerical duties but performing the work of Salesman hence by virtue of his work, he was not a workman in terms of S.O.O., 1968. In support of his contentious, learned counsel relied on the case of 5hahzar Khan v. Labour Court No.4, Karachi and others 1977 SCMR 1U6, Messrs Pakistan Herald Ltd. Karachi v. Victor Sunny and another 1996 PLC 66, Pakistan Herald Workers' Union v. Sindh Labour Appcelate Tribunal and others 1996 SCMR 1827; Dost Muhammad Cotton Mills v. Muhammad Abdul Hani PLJ 1975 Kar. 25, Public Works Department Government of Punjab, Lahore v. National Industries Relations Commission and another 2004 SCMR 27, Shaheen Air Port Services v. Haider Abbas Rizvi 2006 PLC 169; Ch. Masood Ahmed v. Messrs Pakistan Machine Tool Factory and others 2004 PLC 343, Dilkhusha Enterprises Ltd. v. Abdul Rashid and others 1985 SCMR 1982 and unreported case of Honourable Supreme Court in Messrs Nichimen Corporation Karachi v. Chairman, Sindh Labour Appellate Tribunal and others Civil Petition No.413 of 1992. Learned counsel for the respondent has contended that the alleged misconduct does not fall within the scope of definition of S.O.15(3)(e) of Ordinance, 1968. The respondent was appointed in the year 1987. There was no charge-sheet/allegations of habitual late coming or absence, right from 1987 to 2002 but the Manager of Nishtar Road Branch, Sukkur became jealous and inimical clue to personal, he got issued a belated and time-barred charge-sheet to the respondent. The respondent has neither remained absent nor late. Thus, the action of the appellant was mala fide, illegal and against natural justice. The respondent, therefore, prayed for back-benefits and dismissal of appeal against reinstatement filed by the appellant. The only point involved in this petition is whether the finding of the learned trial court holding that the respondent was a workman was legally sustainable. There is no cavil that mere designation of an employee may not be the determining factor as to his status and the nature of job and duty is to be kept in view. The respondent was employed as Assistant in the Bank and was assigned the duty of Miss page Newspapers Employees (Conditions of Service) Act, 1973 on 19-6-2004 as well as applications for implementation under section 62, I.R.O. 2002. Comments to the said application were submitted by the management. It was mainly contended. that the vires and legality of the 7th Wage Board Award was under challenge before the Sindh High Court in constitutional petitions filed by various. newspaper establishments; It was also contended that a restraining order was issued by a learned Division Bench of the Sindh High Court in Constitutional Petition No.382 of 2003. No specific ground was however, made out on merits against the implementation of the 7th Wage Board Award. .

3. It is not denied by Mr. Muhammad Ali Mazhar, Advocate. for the respondent that the stay order issued in Constitution Petition No.382 of 2003 titled Pakistan Herald Publications (Pvt.) Limited and another v. Federation of Pakistan and. others has "since been vacated as the constitution petition itself was dismissed as not pressed by the learned Division Bench of Sindh High Court vide order dated 11-10-2005. It is also not the case of respondent management that any restraint order has been passed in constitution petitions wherein the vires and legality of the 7th Wage Board Award is stated to be under challenge.

4. Reference at this stage may be made to specific orders passed by this Tribunal wherein the objections of the management of .the implementation of the 7th Wage Board Award were not sustained upon the consideration that despite the pendency of the constitution petitions challenging, the legality of the 7th Wage Board Award, no restraint order has been issued by the Honourable High Court.

5. Out of the initial 43 petitioners, as many as 25 petitioners as per list attached did not press the petition and as a result only 68 petitioners are left in the filed. In view of the pendency of the constitution petition, challenging the 7th Wage Board Award, the petitioners were directed to place undertakings/affidavits on the record to the effect that in case of any adverse order in the said constitution petitions, the petitioners would refund the dues to respondent establishment. All the 68 petitioners now in the field, have furnished the requisite undertakings/affidavits. (a) Period commencing 1st of July; 2000 upto 31st December, 2003. (b) Period commencing 1st of January, 2004 to 31st December, 2005. (c) Prospective payment w.e.f. 1st January, 2006.

7. The learned counsel for the respondent has placed on the record an application for adjournment against upon the same assertion that the validity of the 7th Wage. Board Award is under challenge in two constitution petitions before the Sindh High Court. Reference was also made to Intra-Court Appeal No.859 of 1997 as this I.C.A. has challenged the vires of the 6th Wage Board Award.

8. As earlier observed, there is admittedly no orders restraining proceedings before this Tribunal. It is trite law that mere pendency of proceedings of the nature as submitted by the learned counsel for the respondent shall not operate as an injunctive order. Reliance is placed on Messrs Cowasjee and Sons v. Director Sindh Employees Social Security Institution 2000 PLC (Labour) 26, a Division Bench judgment of Honourable Karachi High Court.

9. Regarding the implementation of the 7th Wage Board Award, Mr. Sadiq Muhammad Warriach, learned counsel for the petitioners has placed reliance upon section 12 of the Newspaper Employees (Conditions of Services) Act, 1973 to submit that a decision of the Wage Board published under section 11 shall be deemed to be an award of the Full Bench of .the NIRC and all the provisions of the Industrial Relations Ordinance, 2002 (previously IRO 1969) shall be applicable to such an award. The learned counsel further made reference to section 13(4) (ibid) to submit that this Tribunal shall have the same power which a Labour Court has under section 62 of the IRO 2002 (formerly section 51(1) of the repealed IRO, 1969) for implementation of a Wage Board Award.

10. It is contended by the learned counsel for the petitioners that any money due from an employer under an award, settlement or decision of the arbitrator, Labour Court or High Court may be recovered as arrears of land revenue and after such recovery to be paid to the employee concerned.

11. Arguments have been heard and record perused. The petitioners have calculated their dues from 1-7-2000 (effective date of the 7th Wage Board Award) upto 31-12-2003: Statement of dues/charts in this respect are marked in case as Mark P/1. The management has not controverted this claim. Correspondingly the management has filed a statement of the dues of as many as 39 petitioners upon the basis of the difference between the salaries being actually paid and the salaries determined for the categories of the petitioners in the 7th Wage Board Award. The respondents have failed to file a similar statement of dues regarding the remaining 29 petitioners although in their comments, the claim of the said 29 petitioners was not denied. The uncontroverted claim of the 29 petitioners as made in their petitions along with the acknowledgment of dues of 39 petitioners as admitted by the management have been consolidated in list marked T/1. According to this consolidated list, the dues of each of 68 petitioners have been worked out as in Column No.5 of Mark T/1.

12. The 7th Wage Board Award came into force on 1-7-2000. It is binding on all the newspaper establishments. The employees of the concerned establishment are under a legal obligation to implement the said award in its letter and spirit. Under section 12 of the Newspaper Employees (Conditions of Service) Act, 1973 the Wage Board award shall be deemed to be an award of the Full Bench of the Commission and all the provisions of the Industrial Relations Ordinance, 1969 (IRO, 2002 presently) shall apply to decision of the Board. Under section 51, IRO, 1969 (now section 62, IRO, 2002) the Labour Court is authorized to recover all money due from an employer under an award, settlement or decision of the arbitrator, Labour Court or High Court as arrears of land revenue or as a public demand. Section 13(4) of the Newspaper Employees (Conditions of Service) Act, 1973 provides that this Tribunal shall have the power to issue a direction which a Labour Court has under section 51(1), IRO 1969 (now section 62, IRO, 2002). This legislation incorporation or reference fully empowers this Tribunal to recover the amount due under the award as arrears of land revenue. According to the showing of the respondents, themselves, they have failed to pay salaries to the petitioners in accordance with the salaries fixed under the 7th Wage Board Award. The arrears of dues have been admitted and acknowledged by the respondents. The due payable by the respondents to the petitioners from 1-7-2000 to 31-12-2003-are accordingly determined as amount due.