1993 PLP 1006 (PLC)

‑‑‑‑Workman‑‑‑Employee though was designated as "Electrical Engineer" but was performing manual work as electrician and had no power of hire or fire or any executive or management power‑‑‑Employee was rightly found to be a workman as it was nature of job performed by employee and not the designation which would determine factum of his being workman or otherwise. Abdul Rauf Rohaila for Appellant. Waqar A. Seth for Respondent. The appellant assails the decision of the Presiding Officer, Labour Court dated 27‑6‑1990 whereby the grievance petition moved by the respondent was accepted and it was directed that the respondent be deemed in service of the appellant and entitled to back benefits.

2. The controversy between the parties started when a circular, dated 10th March, 1986 was issued by the appellant for information of all concerned that on account of this decision of Board of Directors, "The Management of the Company has decided to declare temporary closure of the factory w.e.f. 13th March, 1986 till the arrangement of the re‑financing of the project". It was also stated in the circular that the staff of the company will be entitled for every kind of benefits admissible under labour laws and. on the re‑start of the factory they will be called for duty and their absence in the meantime will be treated as leave without pay. The respondent and other workers were aggrieved of this circular and he moved the management through grievance notice but with no success and as a last resort he approached the Labour Court through the instant grievance petition. It was alleged in the grievance petition that the temporary closure is against law and cannot be made without prior permission of the Court; that the petitioner was entitled to receive his wages but the respondent refused him payment of his dues. On factual side the contents of the petition were controverted through the written statement filed by the respondent and on legal side the Labour Court was declared not to be competent to take cognizance of the dispute as the petitioner was not a workman.

3. At the trial petitioner appeared as P.W.1 and supported his averment made in the grievance petition. He also examined Saeedur Rehman Kiayani in support of his stand. On the other hand R.W. 1 Muhammad Salim Afridi appeared for the management and controverted the version of the petitioner. Anis Ahmed Ghauri and Hazrat Diyan, Managing Director also appeared in support of the stand of the respondent.

4. The learned counsel pleading for the appellant submitted that Standing Order 11(A) is not applicable as the establishment of the appellant had less than 50 workers. This argument was opposed by the respondent's counsel on the ground that this objection has not been taken in the written statement and that the appellant himself had resorted to the said order for applying to the Labour Court to close the industry. In this context he also referred to the second proviso to section 1(4) of the Standing Orders Ordinance wherein some of the provisions of the Standing Orders have been excluded to an industrial establishment wherein not more than 49 persons were employed. The plain reading of Standing Order 11(A) indicates that irrespective of whatever is contained in Standing Order 11 no employer would close down the whole of the establishment without prior permission of the Labour Court in this behalf except in the event of fire etc. In the circular the reasons for the closure are not those which render the establishment exempt from obtaining prior permission from the Labour Court. Standing Order 11(A) was, therefore, clearly applicable and in absence of the prior permission of the Labour Court for closure of the industry the issuance of the impugned circular and resultantly the closure of the industry on the basis of it was clearly illegal and without lawful authority. I see no defect in the finding of the trial Judge on this count. It was next submitted that by letter dated 26‑9‑1987 Exh. RW.1/2 the respondent was directed to join the service w.e.f. 1‑10‑1987 but as he failed to join service in response to the said letter, therefore, his services were terminated on 2‑11‑1987 vide Exh. RW.1/2 w.e.f. 1‑10‑1987. It was, therefore, meant that the respondent should have given a fresh grievance notice from this termination order and in case of non‑acceptance of the grievance notice he should have filed a grievance petition challenging the latter termination order. This argument had been advanced before the Labour Court but was repelled on the ground that the said letter and termination order are collusive and fake documents and there is no proof of their having been sent to the respondent. The reasons for discarding this argument given by the Labour Court are correct as in absence of postal receipt or other reliable proof the authenticity of the documents cannot be established and the letter containing the offer to join the service and the order passed on it are fabricated. This is so because Muhammad Salim Afridi deposing as R.W.1 stated in his cross‑examination: "It is correct that the respondents have till present day not reopened the establishment". Similarly R. Mr. Hazrat Diyan, the Managing Director also admitted this fact in his statement in these words: "Me respondent establishment was closed in the year 1985 and the same is closed since then". It is, therefore, not understandable as to how the offer of rejoining the service was made when the factory had not been restarted. Lastly it was argued that the respondent was not qualified as workman under Standing Orders Ordinance and, therefore, the Labour Court had no jurisdiction to take cognizance of the dispute agitated by him. This argument is also without any substance and probably has been advanced merely keeping in view the designation of the respondent as (Electrical Engineer). It is by now well‑settled that it is the nature of the job performed by the employee and not the designation which determines the factum of workman or otherwise. It is an admitted position that the respondent had no degree or diploma in engineering and per Exh. P.W.1/1311 he has applied for the post of Electrical Foreman stating therein "I have passed competency examination of ABCD (in all electrical installation having 18 years practical experience, of industrial unit" and the mere fact that he was designated as Electrical Engineer by the management would not affect the job he performed. The respondent while explaining his duties stated "Basically I am Electrician and the post to which I was employed was designated as Electrical Engineer whereas I am neither diploma holder nor degree‑holder. I used to work as a worker by working for cleaning Electrical Machines personally/manually". This portion of the statement has not been refuted otherwise except by production of the appointment letter wherein t4 respondent has been designated as Electrical Engineer. According to the evidence on record the respondent was performing manual work as electrician and he had no power of hire or fire or any executive or managerial power. The finding of the learned lower Court in this respect is, therefore, perfectly legal and correct. No other point was argued.

5. Resultantly this appeal is found without merit and is accordingly dismissed with no order as to costs. H.B.T./164/Lb.N Appeal dismissed.