1993 PLC 78 (PLP)

7. The Labour Court found that the appellant was a workman but being of the opinion that misconduct had been made out dismissed the petition. An appeal was taken and the same came to be allowed by my learned predecessor. This decision of the Tribunal was called in question in a writ petition before the High Court, wherein it was contended that the counsel for the respondent had not been permitted to contest the finding of the Labour Court that the appellant was a workman. This contention prevailed and the matter has been remanded to this Tribunal for disposal in accordance with the observation made in the judgment.

8. Mr. Munib Ahmed learned counsel for the appellant contended that if this Tribunal were to find that the appellant was a workman, then it was the end of the matter, and the order of acquittal by my learned predecessor would hold the field. It was not open to me to examine that aspect of the order. However, he did not choose to tell me as to what would be the situation if I held otherwise. All I need say is that the order of my learned predecessor having been found to be without lawful authority and of no legal effect, I am seized of the entire matter both on facts and law, and there has to be altogether a fresh decision.

9. The first question to be considered would be in regard to the status of the appellant. He describes it in his petition under section 25‑A of the I.R.O. as to be found in paragraphs 3 and 4 thereof. It will be in the fitness of things to reproduce the same: "

3. Although the appellant was posted in the Administration Department but his duties, besides others, were very strange, oftenly he was asked to perform the task which was private and personal of the high ups of the opponent (which detail he will submit in evidence). For these extraordinary work the applicant had to exploit his own resources and of his friends etc. etc.

4. Since beginning the nature of the applicant's duties was fiduciary and he was entrusted with heavy cash amount. The applicant made costly purchases for the opponent as well as its officers and always carried out orders/duties with honesty and devotion and never caused for any complaint. In the chain of fiduciary duties, the applicant alongwith his senior Mr. Rahat Ali was also entrusted in 1984 with the duties of sale of canteen coupons etc. etc."

10. Then he mentions in paragraph 4 of his affidavit‑in‑evidence that he was a member of C.BA and was subjected to check off by the respondent. He has filed a statement but what is noticeable about it, is that it is on a piece of plain paper without the signature of anybody and is without any date and without the name of even the respondent thereon.

11. In paragraph 5 he says that he was provided medical facilities in accordance with the union and management agreement. The contents of the letter are to the effect that the company was providing, medical facilities to its confirmed employees in accordance with the provisions of the management agreement. There is nothing more to it.

12. Lastly he has mentioned that he was a member of the Central Committee of I.C.I. Sports Club which was meant for management staff. In his cross‑examination however he admits that the Chairman of the Club was no less a person than the Chairman of the respondent‑Company.

13. In his cross‑examination he admitted that he was not doing any manual or for that matter typing work either. He admitted that purchasing was included in his duties. He had himself stated at the enquiry that he remained busy from 10 a.m. to 2‑30 p.m. for making purchases on behalf of the company. However, at the end he concluded in his own words by saying that "he used to do the clerical work like the fixation of duties of peons, chowkidar and other staff members. I used to prepare bills sometimes like telephones, gas bill and electric bill and I used to prepare statement of the bills every month".

14. A perusal of his duties does not indicate that he was doing even any clerical job either. On his own showing he was "a man with some potential".

15. Reference was made by Mr. Munib A. Khan to the case of General Manager, Hotel Intercontinental and another v. Bashir A. Malik and others PLD 1986 SC

103. Patently he falls within clause 2 of the employees who were not workmen, within the meaning of the Ordinance as to be found on page 108 of the report that is, they belong to the category bf Supervisors, not doing any manual or clerical work. It was further held in that case only that "if a small and an auxiliary part of his responsibilities is manual on nature and if he is incidentally required to prepare statement, maintain a register or submit a report, he cannot be said to be a workman if otherwise his main and primary duties do not belong to that category". The citation relied upon by Mr. Munib Ahmed Khan, learned counsel for the appellant to my mind hardly comes to his aid.

16. The question next to consider would be as to whether any misconduct can be ascribed to the appellant? Admittedly from 25‑3‑1984, the day that the Mess became operational the sale of coupons had been entrusted to him. As chalice would have it, once the work was entrusted to the appellant he was allowed to continue on, once he had stayed there for some time. It is beyond dispute that the appellant used to keep the coupons in his drawer. Normally the latter would be away from office after 10 a.m. and if any coupons had to be sold during that period, Rahat Ali had the duplicate key and he has stated that he would take out the coupons and put them back later on alongwith the purchase money. Sometimes if he was pre‑occupied with work even one Asif Zafar would open the drawer and sell the coupons but as it is brought on the record, that it was an internal arrangement, and there was never any complaint lodged by the appellant about any missing coupon, or if a coupon had been found removed in that eventuality its sale price had not been left in the drawer.

17. It is also an admitted position that from the period, the appellant had taken the sale of the coupons he had made only 3 deposits. The first was on the 29th of March, 1984, the second was on the 10th of April, 1984 and the third was on the 12th of November, 1984. Thereafter, on his own admission he had never deposited anything at all, and at the enquiry he had candidly admitted that "the outstanding amount which was lying with him was Rs.73,500 which had deposited on 19th September, 1987".

18. In his statement at the domestic enquiry he had the following to say: "I had always performed the official duties as well as personal jobs facilities which involved cash belonging to thousands of rupees. Mostly I have used my personal resource as well as my father's resource who was ex‑Director General of Export Promotion Bureau in getting company's work done without spending company's money." We do not know where the truth lies, and it is not necessary to look in that direction, but it was incumbent upon him to deposit the company's money as enjoined upon him every month. At any rate, he could not hold the money with himself for years together. On his own showing Rs.73,500 were with him which he had deposited once the investigation had begun. The respondent's case is that about double the amount is still outstanding.

19. It might as well be added that the internal audit was not being regularly done, as stated by Muhammad Zafarullah because this item was of hardly any significance for the company. They had only random sample checking and investigation was taken up only when suspicion had been aroused. Anyway there was no justification for the appellant retaining the company's money 'on his person and that too for years. This constituted on offence under the Penal Code and misconduct within the meaning of Standing order 15(3)(b) of the Ordinance.

20. No fault can either be found in the conduct of the enquiry. Every page of the statement recorded bears the signature of the appellant. He had no complaint to make and even the despatch of the enquiry papers, dated 20th April, 1987 is without any challenge.

21. I am, therefore, clearly of the opinion that misconduct had been made out and the order of the dismissal cannot be called in question. I will, therefore, uphold the impugned order of dismissal and dismiss the appeal. H.B.T./2075/Lb.S Appeal dismissed.