1971 PLP 557 (PLC(CS))

(1) is the petitioner a. "worker" and is the application of the petitioner maintainable? (2) Is the order of dismissal of the petitioner from service legal and valid? (3) To what relief, if, any, the petitioner is entitled in this case? Points 1, 2 and 3.‑For the sake of convenience of discussion I take‑up all the points together. There is no dispute that the petitioner was a Tanner under the second party and that he worked as such for a considerable period of time. The petitioner says in his deposition that he used to work personally by his own hand and that he had no control over the labourers who used to work in his section. In his cross‑examination he says that there were 40 to 50 labourers who worked under his directions. But the petitioner adds that they were under the administrative control of the Manager. The witness for the second party Abdul Quayyum Siddiqui is the Manager of the Madina Tannery. He gives the designation of the petitioner as Chief Tanner. He says that tanning was done by the workers and not by the Tanner himself. In his cross- examination this witness has admitted that the petitioner was the only Tanner in the Tannery. This shows that the designation of Chief Tanner is a misnomer. In other place of his deposition the witness says that Wong used to look after the tanning of cows' skin and there was another Tanner for tanning of goats' skin. Tanning should be the normal and usual work of the Tanner. So, when the petitioner says that he does the tanning business by his own hands we may take it that he is telling the truth. There is nothing before us that the petitioner had administrative control over the labourers who used to help him in the matter of tanning by doing various works in the section. As a matter of fact the petitioner has categorically said in his deposition that the adminis trative control over the labourers who worked under his direction is with the Manager. On the materials before us we have nothing to find that the petitioner had any managerial or administrative power, nor he had any supervising capacity connected with administrative powers. He did business of tanning work and there were labourers to work under his direction just for help in the matter of tanning which is personally done by the petitioner. Such being the nature of work the petitioner used to do, we are constrained to find that the petitioner is a "worker" as defined in the Standing Orders Act, .1965. He is, of course, a skilled worker and the nature of his work may be taken to be technical as well as manual. The application under section 25 (1) (b) of the Standing Orders Act, in view of my findings as above, regard ing the status, of the petitioner, is maintainable. Now, we pass on to the consideration of the question whether the dismissal of the petitioner is legal and valid. The petitioner was charge‑sheeted on 27‑12‑69 and he was called upon to explain his conduct in 3 days' time. This charge dated 27‑12‑69 refers to a previous charge and order of dismissed which was withdrawn on compassionate ground by a letter date 30‑10‑

69. The previous charge was also for habitual negligence The charge dated 27‑12‑69 is also for habitual negligence in work The charge says that there has been no improvement in tanning There is, however, nothing before us as to what was the quality of tanning in between 30‑10‑69 and 27‑12‑

69. The second part has filed some papers which are mostly of the middle of 196 and they reveal that there were some objections from some quarters regarding the standard of tanning. It appears that previously there was a charge‑sheet on 26‑9‑69 or habitual negligence to which the petitioner, P. W. 1 gave a reply. There was then an order of dismissal with effect from 30‑10‑69 passes on 8‑10‑

69. On that very day the petitioner, Mr. Wong sub milted a written representation controverting the allegations made against him a appealing for withdrawal of the order of dismissal. On. 30‑10‑69 he order of dismissal was withdrawn. In the meantime there were various correspondences between the peti tioner and the second party over the remuneration of the petitioner, increment in the same and other alleged legitimate dues. It is the contention of the petitioner that to avoid pay ment to the petitioner his legitimate dues the second party is resorting to various devices and that with an ulterior motive falsely charged the petitioner for negligence of duty for tile second time and illegally dismissed him without giving him any chance of being heard, 18‑1‑70 was fixed for personal hearing of the petitioner. The petitioner says on oath that he asked for an enquiry but no enquiry was held. The residence of the petitioner' is within the factory and it has been suggested to the witness who deposed for the second party that on the alleged date of enquiry the office vitas clod and that there was no enquiry. Of course, the witness has denied the suggestion, but there is, however, no reason why the petitioner should not be present on the alleges date of his personal hearing as his residence is within the factory. There is no discernible act of negligence on the part of the peti tioner in between 30‑10‑69 and 27‑12‑

69. The second party admits that no written warning is there before the Court to show that the petitioner has been warned previously for bad tanning. The petitioner in his evidence says that the company purchased skins from other Tannery and exports the same and for the quality of the same the petitioner is not to be blamed. The petitioner has been serving under the second party for a pretty long time. It does not appear that there was ever any allegation of bad quality in tanning. The allegation, if any, is shown to have cropped up recently. The reasons for the same according to the petitioner is that of some ill‑feeling between the petitioner and the second party because of some demands of the petitioner regarding his emoluments. That may be true. On a considera tion of every material I have reasons to find that the charge of habitual negligence of work has not been established against the petitioner. On the other hand, there are reasons to hold that the charges have been brought with some ulterior motive to do away with the services of the petitioner. The petitioner in my view has been deprived of a personal hearing and the manner in which the alleged enquiry is said to have been conducted against the petitioner warrants a belief that natural justice hag not bee fully made in the matter. So, in my finding the order of dismissal of the petitioner from service is not legal and valid. The petitioner has prayed for re‑instatement in service, but as the second party is not willing to accept the petitioner and as it appears that they are trying to oust the petitioner, it is not desirable that the petitioner should be thrust upon the second party by way of re‑instatement. Alternatively the petitioner teas prayed for termination benefits. I propose to give the petitioner termination benefits in this case. In the schedule of claims the petitioner has included various items. With regard to some of them we have got scanty materials to come at a decision. The petitioner has claimed overtime salary and his claim amounts to Rs. 8.000.00 on that account. This is a vague claim. Again the petitioner has claimed salary for Earned. Leave as well as for unavailed leave. This double claim is not tenable. We are not also aware of whether any bonus is due to the petitioner. These claims we are not in a position to consider favourably for the petitioner. I have considered fully the claims of the petitioner' as contained in the schedule and in my view the petitioner should the normal and usual benefits as provided in section 19 (1) of the Standing Orders Act, 1965. In consideration of the facts and circumstances I order that the petitioner do get the following benefits from the second party:‑ (1) 90 days' pay at the rate of Rs. 1,200.00 per month in lieu of notice; (2) Wages for 154 days as compensation; (3) Arrear wages for 24 days for the month of January 1970; and (4) Wages for earned leave if any, due. The second party is directed to pay up tile amounts indicated above to the first party petitioner within one month from today. In arriving at the above decision I have considered the opinions of the learned Members.