2019 PLP 72 (PLC)

IRFAN SAADAT KHAN, J.

The instant petition has been filed challenging the decision dated 26.5.2011 passed by the Sindh Labour Appellate Tribunal (SLAT).

2. Briefly stated the facts of the case are that the petitioner was an employee of Respondent No.2 and stated to had performing the clerical and manual job. The petitioner was appointed on 1.4.1996 and was working as Sales Coordinator. That the Respondent No.2 through termination letter dated July 8, 2002, delivered to the petitioner on 6.8.2002, terminated his services on account of misappropriation and gross negligence. The petitioner then sent a grievance notice dated 27.8.2002 to the Respondent No.2 but when no reply was furnished by the Respondent No.2, the petitioner approached the Respondent No.3 by filing an application under section 25A of the Industrial Relation Ordinance, 1969 (the Ordinance). The matter proceeded before the learned Judge who thereafter allowed the appeal vide order dated 30.3.2004 by reinstating the petitioner into the service with full back benefits. Being aggrieved with the said order the Respondent No.2 filed labour appeal bearing Appeal No.KAR-704 of 2010 before the Respondent 1, who vide judgment dated 26.5.2011 decided the mater in favour of Respondent No.2, against which the present petition has been filed.

3. Mr. Shahenshah Hussain Advocate appeared on behalf of the petitioner and submitted that previously matter was heard at length by a learned Division Bench of this Court who vide order dated 20.9.2012 referred the matter to the Hon'ble Chief Justice for formation of a Full Bench on the following issue:- "If a company or business entity has more than one office or branches at different places whether for the purposes of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the West Pakistan Shops and Establishments Ordinance, 1969, they are to be treated as one establishment or as separate establishment." Thereafter the Full Bench of this Court vide its short order dated 26.5.2013 answered the above quoted question that "they are to be treated as one establishment" and thereafter gave its detailed reasonings on 28.1.2015. Against the Full Bench's decision the Respondent No.2 preferred a Leave to Appeal before the Hon'ble Supreme Court of Pakistan and the Hon'ble Apex Court granted leave vide order dated 27.7.2015 and converted the same into Civil Appeal No.144-K of 2015. The Hon'ble Apex Court after hearing the Civil Appeal vide its decision dated 4.7.2017 affirmed the order of the Full Bench of this Court. Mr. Shahenshah Hussain, learned counsel for the petitioner, stated that the legal issue with regard to treatment of one establishment or separate establishments since has been resolved by the Hon'ble Supreme Court of Pakistan, hence this petition may now be heard on merits.

4. While arguing the case on merits the learned counsel stated that before issuance of termination letter dated July 8, 2002, neither any enquiry nor any show-cause notice, which was mandatory under the law, was issued to the petitioner, therefore, according to him the action taken by the Respondent No.2 was wholly illegal, without jurisdiction and not sustainable under the law. The learned counsel then read out Standing Orders 12 and 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and stated that the above referred provisions are mandatory in nature and since these have not been followed and complied with, hence the entire proceedings of the termination adopted by the Respondent No.2 was illegal and uncalled for. He stated that if a procedure is provided under the law the same has to be compulsorily followed and since the provisions of the law, which in his view are mandatory, have not been complied with by the Respondent No.2, therefore the entire proceedings adopted with regard to the termination of the petitioner were ab initio void and illegal. He further stated that this issue was very much agitated before the Labour Court who appreciated the same but the SLAT has not dilated upon this issue and, thus, the decision of the SLAT is illegal so far as merits of the case are concerned. The learned counsel then read out affidavit-in-evidence filed by the Respondent No.2 before the Respondent No.3 and the deposition of the witnesses to substantiate that no legal procedure before issuance of termination letter to the petitioner was adopted. He stated that in view of the submissions made above the instant petition may, therefore, be allowed. In support of his contention the learned counsel has relied upon the decision of Messrs Kohinoor Marble Industries Limited v. Mirza Zamir Baig and another (1991 PLC 408).

5. Syed Ali Ahmed Tariq Advocate has appeared on behalf of Respondent No.2 and at the very outset stated that the instant petition is not maintainable as the petitioner does not fall under the ambit of a "workman", hence this petition is liable to be dismissed in limine. He further stated that if the contention of learned counsel for the petitioner is accepted that the SLAT has not passed its decision on merits of the case the safest course is to remand this case to the SLAT with the directions to decide the matter within a stipulated period in accordance with law.

6. Barrister Shahrayar Mehar, the AAG has appeared for Respondents Nos.1 and 3 and has adopted the arguments of Syed Ali Ahmed Tariq, Advocate for the Respondent No.2.

7. Mr. Shahenshah Hussain, learned counsel for the petitioner, while giving a rebuttal stated that, though, the petitioner has been assigned the status of a Sales Coordinator but, in fact, he was performing duties clerical and manual in nature and, hence, the petitioner falls under the definition of a "workman" as given under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, section 2(i). According to him it is not the designation which is important but it is the nature of job assigned to a person which has to be seen. He further stated that so far as remanding of the matter is concerned that no purpose would be served since the matter is being lingering on since 2002, when the petitioner was terminated and who has been running from pillar to post for redressal of his grievance; and if the matter is remanded once again a series of litigation would start and petitioner would be seriously prejudiced. He, therefore, prayed that in the interest of justice the matter may finally be disposed of on one way or the other through the instant constitution petition. In support of his above contention the learned counsel has placed reliance on the following decisions:- A) Abdul Razzaq v. Messrs Ihsan Sons Limited and others (1992 SCMR 505) B) Muslim Commercial Bank Limited v. Chairman, Sindh Labour Appellate Tribunal and others (1992 PLC 1023).

8. We have heard all the learned counsel at considerable length and have perused the record and the decisions relied upon by the learned counsel for the petitioner.

9. From the pleadings of the parties it is evident that the counsel for the petitioner has stated that, firstly, the petitioner is a workman falling under section 2(i) of the Ordinance, 1968. The term workman has been defined under section 2(i) which reads as under:- "S. 2(i) "Workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward". The term "workman" has come-up in many cases and the test for determination whether a person is a workman or not depends upon the nature and the work assigned to him and not the designation and if from the nature of the duties assigned to him it manifestly appears to be clerical and manual in nature for all practical purposes the said person has to be considered as "workman". Reference in this regard may be made to the decisions given by the Hon'ble Supreme Court of Pakistan (1) Managing Director, Shahi Bottlers (Pvt.) Limited v. The Punjab Labour Appellate Tribunal, Lahore and others (1993 SCMR 488), (2) General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others (PLD 1986 SC 103) and (3) Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited (2009 SCMR 857).

10. No doubt, the onus in this regard is upon the person to show that he is a workman within the Labour Laws and neither the designation nor the amount of salary is of any relevance in this behalf and each case has to be seen upon the facts of that case. In the instant case if the facts are examined it is seen that the petitioner was appointed as Store Incharge in the year 1996 and at the time of termination also he was holding the post as that of Store Incharge. From the appointment letter of the petitioner it is evident that the job of the petitioner was to work under the Sales Manager and his duty includes Maintenance of Bin Cards and feeding them in Computer, Maintenance of Parts (Textile Machines), Counting the parts in Stores, Issuing Receipts for the issue of parts for the machineries on the directions of Sales Manager and feeding them in the Computer, hence from the above it could easily be inferred that the petitioner was engaged in clerical and manual job, therefore, for all practical purposes he is to be considered as a "workman". Hence, we do not find any substance in the contention raised by the learned counsel for Respondent No.2 that the petitioner is not a "workman" and repel the same.

11. So far as the issue of non-compliance of Standing Orders 12 and 15 are concerned before proceeding any further we deem it expedient to firstly reproduce hereinbelow these two Standing Orders:- "

12. Termination of employment. - (1) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. (2) . . . . . . . . . . . (3) . . . . . . . . . . . (4) . . . . . . . . . . . (5) The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15." "

15. Punishment.

(1) . . . . . . . . . . . (i) . . . . . . . . . . . (ii) . . . . . . . . . . . (a) . . . . . . . . . . . (b) . . . . . . . . . . . (c) . . . . . . . . . . . (d) . . . . . . . . . . . (e) . . . . . . . . . . . (2) . . . . . . . . . . . (i) . . . . . . . . . . . (ii) . . . . . . . . . . . (iii) . . . . . . . . . . . (3) . . . . . . . . . . . (a) . . . . . . . . . . . (b) . . . . . . . . . . . (c) . . . . . . . . . . . (d) . . . . . . . . . . . (e) . . . . . . . . . . . (f) . . . . . . . . . . . (g) . . . . . . . . . . . (h) . . . . . . . . . . . (i) . . . . . . . . . . . (j) . . . . . . . . . . . (k) . . . . . . . . . . . (l) . . . . . . . . . . . (4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer is required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman. [Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.]

12. Perusal of the above referred standing orders would reveal that the lawmakers have used the word "shall", in the Standing Order 12(1) as well as in Standing Order 15(4), which in our view are mandatory in nature and before taking any disciplinary action against a workman adherence to the above referred two Standing Orders is a compulsory requirement of law. It has categorically been provided under Clause (5) of the Standing Order 12 that services of a workman shall not be terminated otherwise the manner prescribed under Standing Order 15 wherein it has categorically been mentioned that before the order of dismissal/termination an enquiry has to be made in accordance with law by giving a fair opportunity of hearing to a person facing enquiry. In the instant case it is evident that before issuance of the termination letter to the petitioner the provisions as provided under Standing Orders 12 and 15 apparently have not been complied with as neither any enquiry was held in the instant case nor any show cause notice was issued. The decision relied upon by the learned counsel for the petitioner in the case of KOHINOOR MARBLE LINDUSTRIES LIMITED, in our view, is fully applicable to the facts of instant case wherein a Division Bench of this Court observed as under:- "

5. It was obligatory upon the employer to institute independent enquiries against the respondents pursuant to these notices and to give an opportunity to the respondents to explain the circumstances alleged against them. Having admittedly, not done so, the petitioners have failed to perform statutory duties imposed upon them by subsection (4) of section 15 of the said Ordinance. Hence even in the eyes of law no valid order of dispensing with the services of the respondents exists. Hence it was rightly held by the Labour Appellate Tribunal that the period of limitation had not started running against them and it, therefore, rightly set aside the order of the Labour Court." We, thus, under the circumstances, are of the view that since legal requirements before terminating the petitioner have not been fulfilled the proceedings initiated against the petitioner could not be termed to be validly initiated and, thus, the termination letter issued by the Respondent No.2 to the petitioner stands vacated.

13. Though, a plea was raised by the learned counsel for the respondent No.2 for remanding the case to the SLAT but since the position in the instant petition is quite apparent it would not have been in the interest of justice to send the matter to the SLAT again on this issue as from the facts obtaining from the record it is evident that the petitioner is pursuing his matter since 2002 and remanding of the case to the SLAT, in our view, would add miseries to the petitioner's legal cause, which again would consume sufficient time to give a substantial relief of which he is entitled to in accordance with law.

14. The instant petition thus, in the above terms, stands allowed with no order as to costs. However, the Respondent No.2 would be at liberty, if deem necessary, to initiate denovo disciplinary proceedings against the petitioner strictly in accordance with law. ZC/F-22/Sindh Petition allowed.