1988 PLP 342 (PLC)

‑‑‑S.2(xxviii)‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑"Workman"‑‑Foreman in Pakistan Steel Corporation, operating and maintaining equipment physically‑‑Such employee neither incharge of any section nor supervisor, held, was a workman and criteria of emoluments in large establishment was of no importance. Khalid Mansur Alam for Appellant. S.P.Lodhi for Respondent. Date of hearing: 21st July, 1987. This is an appeal filed by the appellant‑Corporation, Messrs Pakistan Steel Corporation Ltd., Karachi against an impugned order dated 8‑12‑1984 passed by the Sind Labour Court No.IV, Karachi, who had allowed the grievance petition of the respondent under section 25‑A, I.R.0.1969, directing his re‑instatement in service with full back benefits.

2. The brief facts of the case are that the respondent claimed, to be a permanent workman in the appellant‑Corporation, appointed on 29‑1‑1981 as Electrical Foreman and according to him was performing the duties of manual nature and was operating electrical assignment and their maintenance with the help of Switch Board Attendant only at Jhampir Dolomite Project. That, all of a sudden, a dispute arose between the Incharge Officer and him on the issues of quantity, quality and supply of material, therefore, the Officer Incharge was annoyed with him and on account of revenge, his services were terminated, without assigning any reason. Being aggrieved of this unlawful action of the appellant‑Corporation, the respondent, after complying with the requirements, had submitted a grievance petition under section 25‑A, I.R.O. 1969, before the learned Labour Court.

3. The appellant‑Corporation resisted the petition, raising two‑fold legal objections firstly, that the grievance petition was time‑barred, and secondly, that as the respondent was appointed as a foreman, therefore, he did not fall within the definition of a workman and that his position was that of supervisor and administrative nature.

4. Both the parties tiled their affidavits‑in‑evidence and they were duly cross‑examined. Thereafter, the learned Labour Court has passed the impugned order, hence the present appeal.

5. I have heard Mr. Kamal Mansur Alam, the learned counsel for the appellant and Mr. S.P.Lodhi, the learned representative for the respondent and have also carefully perused the record and proceedings of the case. S.P.Lodhi has submitted on behalf of the respondent, workman that there is nothing on record to show that any question was asked from the respondent regarding the date of termination or the grievance notice. He submitted that on the other hand, there are documents to show that one is the grievance notice which is dated 28‑1‑1984 and the other is a letter of 8‑2‑1984 rejecting the grievance notice of the respondent. Mr.S.P.Lodhi has further argued that there is no termination letter brought on the record of the learned Labour Court and even the reply of the appellant‑Corporation to the grievance notice of the respondent, excepting a document, dated 3‑11‑1983 in the nature of a Memorandum to show that the services of the respondent were no more required, and if it is presumed that the services of the respondent were terminated on 3‑11‑1983, then, in that case also the respondent had a 3 months mandatory time after the cause of action, therefore, from the record, it is established that the grievance petition of the respondent was well within time. Moreover, it is also established from the record that the respondent had submitted his grievance notice on 28‑1‑1984. On the other hand, the arguments of Mr. Kamal Mansoor Alam, the learned Advocate for the appellant ?Corporation are that the grievance petition was filed on 8‑2‑1984, therefore, it is time‑barred and the delay was not explained under the law. I see no force in the arguments of Mr. Kamal Mansoor Alam. From the documents brought on record. It is crystal clear that the appellant‑Corporation had sent reply to the grievance petition of the respondent on 8‑2‑1984, therefore, the respondent was covered by clause (4) of section 25‑A, I.R.0.1969, and that he was entitled to take the matter to the Labour Court within two months from the date of communication of the employer. Further, the constant view of this Tribunal as well as the superior Court is that by simply mentioning the word no longer required is not a termination unless the reasons are specifically mentioned and that from the evidence it is proved that actually the post was not in existence. In the present case, there is nothing on record with regard to this legal requirement. Therefore, I would hold the termination of the respondent as void and illegal and so also, in such case the limitation was not applicable.

6. As regards the issue that the respondent was not a 'workman' Mr. S.P.Lodhi, the learned representative for the respondent has submitted that the respondent was doing physical work and was working only in one section of Crusher Plant which had a number of other sections and that he was neither an Incharge of the section nor he was a supervisor. Mr. Lodhi further submitted that from the record it is clearly established that the respondent was working under an Officer Incharge, simply by designation as a 'foreman' but actually he was operating the equipments and maintaining them physically. The appellant‑Corporation has not produced the Duty Chart, but, on the other hand, it is an admitted position by the witness of the appellant Corporation himself that the respondent was doing physical work. The criteria of emoluments in a larger establishment like Pakistan Steel Mills Corporation is not of importance. The main issue was whether the respondent was a 'workman' within the meaning of Standing Orders Ordinance, 1968 and or the, Industrial Relations Ordinance, 1969. This fact has been fully established from the record that the respondent was doing physical work and he was not an 'employer'. Mr. S.P. Lodhi, in support of his arguments has relied upon a decision of this Tribunal in an Appeal No.KAR‑263 of 1984, dated 7‑5‑1987, wherein the Assistant Manager in the same appellant ?Corporation was held to be a 'workman' and was entitled to maintain his grievance petition before the learned Labour Court. In this referred case, the termination was also and 'no longer required' and this Tribunal has held that it was not a 'termination' in accordance with law. Mr. Kamal Mansoor Alam, the learned Advocate for the appellant? Corporation has nothing to rebut the factual and legal position of the present case. In view of the circumstances and documentary evidence of the present case. I would hold that the grievance petition of the respondent was quite. with in time limit and the respondent was a 'workman' within the meaning of the Labour Laws and so he was entitled to maintain his grievance petitions before the learned Labour Court setting aside the dismissal and/or termination orders of the services of the respondent and directing his re‑instatement in service with full back benefits, were quite correct, so, I would also maintain the same findings.

7. For the reasons stated by me above, I see no reasons to interfere with the impugned order and would accordingly maintain the same. The appeal is accordingly dismissed. The respondent is directed to be re‑instated in service with full back benefits forthwith. The amount of back benefits, already deposited by the appellant ?Corporation in this Tribunal, is directed to be paid to the respondent, immediately, after proper verification. A.E. /1068/LB.S????????????????????????????????? ??????????????????????????????????? Appeal dismissed.