2000 PLP 119 (PLC)

This appeal is directed against the order, dated 17‑6‑1996 of the Learned Presiding Officer, Labour Court, Peshawar, whereby grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969 (hereinafter to be called the Ordinance) filed by the respondent was accepted and he was reinstated in service with full back wages and benefits.

2. The facts at the background of this appeal in brief are that the respondent was employed as Medical Information Officer in the appellant Company. His services were terminated on 27‑11‑1993 vide Exh.PW‑1/2. He served a grievance notice on the appellant vide Exh.PW‑1/3 which was accepted and he was reinstated in service with full back wages and benefits with direction to report for duty within 48 hours at Head Office, Lahore vide Exh.PW‑1/4. The respondent reported for duty at Lahore within the prescribed time, where from, he was transferred to Hyderabad vide Exh.PW‑1/5. The respondent served a grievance notice against transfer order on the employer but it went futile. Therefore, he approached the Labour Court through grievance petition under section 25‑A of the Ordinance along with stay application praying for the suspension of the operation of the impugned transfer order but he could not succeed to get transfer order suspended from the Labour Court. However, he did not report for duty at Hyderabad Station of his posting, and resultantly, his services were terminated with effect from 2‑3‑1994 vide Exh.PW‑1/6. The respondent being aggrieved of the aforesaid order of termination served a grievance notice on the employer under section 25‑A (1) of the Ordinance but his efforts did not yield any result. Therefore, he again invoked the jurisdiction of Labour Court by filing a grievance petition under section 25‑A of the Ordinance, for his reinstatement in his service with full back wages and benefits. The appellant Company resisted the petition both on legal and factual premises. The learned Trial Court, after scanning the record accepted their grievance petition and reinstated the respondent in service with full back wages and benefits vide order, dated 17‑6‑1996, which is impugned herein.

3. Both the learned counsel for the parties were heard and record was also perused in the light of their submissions.

4. It was argued by the learned counsel for the appellant that respondent was not a workman within the meaning of section 2 (i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969, being a "Medical Information Officer" and as such he could not seek remedy before the Labour Court against his termination order. He submitted that respondent was transferred to Hyderabad but he failed to comply with the lawful order of his superior by not joining duty at the place of posting. Therefore his services were rightly terminated by the appellant and no notice was required to be served on him prior to the termination order. On the other hand, learned counsel for the respondent vehemently opposed the contentions of the learned counsel for the appellant and submitted that respondent was doing manual and clerical work. Therefore, he was a workman and the learned Labour Court has rightly accepted his grievance petition. It was argued by the learned counsel that the services of the respondent were terminated without any notice and no enquiry was held against him. Therefore, the appellant has committed flagrant violation of law.

5. It is evident from the record that respondent was performing manual and clerical function by supplying samples of medicines, literatures and other information regarding the products of the company to the Registered Medical Practioners to promote sales of the products of the appellant Company The respondent had also to prepare and convey daily progress report and tour programme to the appellant. The respondent had no power to hire and fire nor he was supervising the work and conduct of other employees. He was also not employed in mainly managerial or administrative capacity or supervisory capacity. Therefore, mere designation is not sufficient to exclude a person from the definition of a workman. It is well‑settled law that mere designation is neither essential nor fundamental factor for determination of the status of an employee as workman and the only criterion to determine the status of a workman is the nature of duties assigned to him.

6. It is also manifest from the record that neither any charge‑sheet was served on the respondent within a month of the alleged misconduct nor any enquiry was constituted against him as required under the law, as such the appellant has failed to comply with the mandatory provision of section 15 (4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. ,

7. Since the impugned order of termination was set aside by the learned Trial Court on technical ground, therefore, mere technical propriety would not entitle the respondent to be paid back wages and benefits because he himself failed to comply with the lawful order of transfer by not Joining duty at Hyderabad which constitutes indiscipline on his part. The upshot of the above discussion is that the appeal is partially I accepted and the impugned order of the learned Trial Court to the extent of payment of back wages and benefits is set aside and the remaining portion of the order regarding reinstatement is maintained. Parties are left to bear their own costs. H.B.T./223/Lab.(N.W.F.P.) Order accordingly.