' SARMAD JALAL OSMANY, The facts and law are common to both these appeals and hence they are being disposed of through this judgment.
2. Briefly stated the facts of the matter per the appellant/employee in L.A. No,18 of 2003 are that he was employed on a permanent basis by the Company as a Quality Checker since 1992 and had a clean record of service. As he had to his account annual leave of 30 days with full pay he applied for the same with effect from 22-2-1997 to 23-3-1997 since he wanted to take his ailing wife to his native town for treatment but the same was declined by the Company. He again applied for such leave w,e,f, 5-4-1997 to 3-5-1997 and handed over such application to his immediate superior Mr. Muhammad Farid who after keeping the same with him for some time returned it to the Employee.
Thereafter the Employee decided to proceed to his native town for the treatment of his wife, as her condition had become critical. Simultaneously, he sent his leave application by registered post to the Company, which was also rejected without assigning any reason. The Company issued a show-cause notice to the Employee dated 5-5-1997 which was received by him on 9-5-1997 and to which he submitted an explanation. Thereafter, as the same was not acceptable to the Company a letter dated 13-5-1997 was issued to the Employee regarding the domestic enquiry against him which was received by him on 27-5-1997 and which directed him to appear for the purpose of enquiry on 20-5-1997. As the date of enquiry was over the Employee did not attend the same. However, the enquiry against the Employees was completed by the Company on 20-5-1997 ex parte as a result of which he was dismissed from service vide letter, dated 4-10-1997, whereupon he sent a grievance notice to the Company which was not accepted and hence he was constrained to file an application before the learned Labour Court for reinstatement with back- benefit etc. The learned Labour Court vide impugned order 15-3-2002, partially granted the prayer of the Employee viz. Reinstatement with 50% back-benefits and hence this appeal praying for full back- benefits.
3. L.A. No,7 of 2003 has been filed by the Company against the Employee impugning the same order passed by the learned Labour Court wherein the facts per the Company are different. In this appeal the Company has maintained that in the First Leave Application the reason given by the Employee was urgent work which was declined due to exigencies of work. Thereafter, in the second leave application the same reason was given, however, without even waiting for the grant of leave, the Employee ceased to report for duty. As a result he was informed on 21-4-1997 that his leave application had been rejected and he should resume his duty immediately whereupon the Employee vide letter 29-4-1997 replied that he was unwell and would report for duty upon recovery.
The Company did not accept this excuse and issue him with a show-cause notice on 5-5-1997 and thereafter on 13-5-1997 the notice of enquiry was issued to him whereby he was directed to appear before the Enquiry Officer along with his witnesses on 20-5-1997. As the Employee failed to participate in the enquiry the same was conducted exparte and as the charges levelled against him were established he was issued a letter of dismissal on 4-10-1997. Thereafter the Employee addressed a grievance notice to the Company and subsequently filed the application before the learned Labour Court. The Company has prayed that the impugned order reinstating the employee with 50% back-benefits be set aside.
4. Mr. Mehmood A. Ghani learned counsel for the Company has firstly submitted that the Employee was not a workman as he has admitted under cross-examination that Abdul Aziz weaver and Afzal Cooli used to assist him in checking of the both and he was not ,zonally working as a weaver since his main duty was to supervise and check the quality of the cloth. Similarly, he has also admitted that he was not a member of any trade union etc. The Company also led cogent evidence through its witnesses and produced Exhs.R/5, R/6 and R/7 to their affidavits in evidence which establishes the supervisory nature of the employee's duty but the' same were ignored by the learned Labour Court. Furthermore, learned counsel has submitted that the burden of proving that an employee was a workman lay upon him. Consequently, per learned counsel, as the employee had failed to do so and on the contrary had admitted that his duties were supervisory in nature it is clear that he was not a workman and hence could not move the learned Labour Court for his remedy. In support of his submission he has relied upon Zubair Ahmed v. Sindh Labour Appellate Tribunal PLD 1985 Kar.
760, National Bank of Pakistan v. Punjab Labour Court No,V 1993 SCMR 672, Security Papers Limited v. Sindh Labour Appellate Tribunal PLD 1988 SC 180, Zahid Hussain v. Hoechst Pakistan Limited 1989 PLC 309, Bashir Ahmed v Amin Textile Mills Ltd. 2003 PLC 1; Itehad Chemical v. Punjab Labour Appellate Tribunal 1990 PLC 227, Hotel Intercontinental v. Bashir A. Malik PLD 1986 SC 103 and Central Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal 1985 PC 511. Learned counsel has also submitted that merely because the employee was charged-sheeted and an inquiry was conducted against him under the Labour Laws does not mean that he automatically becomes a employee for which he has cited Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal 1984 PLC 1353 and General Manager, Packages Ltd. v. Punjab Labour Appellate Tribunal 1998 SCMR 1250.
5. Next learned counsel has submitted that oral arguments were submitted before the learned Labour Court by. Both the counsel on 7-11-2000 and the matter was reserved for orders on the same day. However, the learned Labour Court delivered the judgment on 15-3-2002 after a passage of more than 15 months which is contrary to the specific directions of the Honourable Supreme Court viz. That judgment is to be announced within a reasonable time after it had been reserved for this purpose. He has relied upon Muhammad Bakhsh v. The State 1989 SCMR 1473, Syed Iftikhar Din Haider Gardezi v. Central Bank of India Ltd. 1996 SCMR 669 and unreported judgment in H.C.A, No,331 of 1999 where a Division Bench of this Court set aside the impugned order inter alia on the ground that judgment had been pronounced after a delay of 9 months. Learned counsel has therefore, prayed accordingly.
6. Next, learned counsel has submitted that the grievance application filed before the learned Labour Court on 19-1-1998 is time-barred as it is beyond the period of 60 days from the service of the first grievance notice dated 6-8-1997 as prescribed under section 25-A(4) proviso of the IRO, 1969. In this respect, learned counsel has submitted that the cause of action to file the grievance application accrued to the employee on 6-8-1997 when he claimed reinstatement and hence he could not enhance limitation by sending his second grievance notice dated 10-12-1997. In support of this submission, he relied upon S.W.H. Jafri v. Muhammad Salim Shaikh 1979 PLC 431 and Messrs Pakistan Machine Tool Factory v. Sindh Labour Appellate Tribunal and others 1992 PLC 650.
7. Finally as regards the legal objections learned counsel has submitted that the employee never took any plea either in his grievance notice or the application before the learned Labour Court that his dismissal was in connection with any industrial dispute and nor did he examine any witness in this regard hence the learned Labour Court could not entertain the employee's application under section 25-A of the IRO. Learned counsel has relied upon Trustees of the Port of Karachi v.
Muhammad Saleem 1994 SCMR 2213; Messrs Wah Industries Ltd. v. Punjab Labour Appellate Tribunal 1998 PLC I and Messrs Associated Consulting Engineers Ltd., Karachi v. Razi Ahmed Farooqui 1975 PLC 147.
8. On merits, learned counsel has submitted that the disciplinary action initiated against the employee was proper and in accordance with law as admittedly he remained absent from his duty without grant of any leave which is an act of misconduct in terms of Standing Order 15(3)(e) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. For this proposition, he has relied upon Aijaz Ahmed Memon v. Muslim Commercial Bank 1985 PLC 994, Tariq Hussain v. Messrs Pakistan Railways 1997 PLC 736, Peetumal v. Messrs Thatta Cement Company Ltd. Makli 1991 PLC 853.
9. Learned counsel has also submitted that the employee has taken contradictory pleas regarding the compulsion which prompted him to proceed on leave without permission i,e, in his leave application form the reason cited by him is urgent work whereas in para.2 of his grievance application before the learned Labour Court the plea taken by him was the illness of his wife. Again when he was directed to report for duty by the Company, the employee took an altogether different plea that he himself was unwell. Consequently, per learned counsel, the employee having approached the learned Court with unclean hands does not deserve any relief. Again the employee has taken different positions as regards receipt of the letter of enquiry i,e,, in his grievance notice he claims that it was received by him on 27-5-1997 but in his cross-examination he says that this was on 28-5-1997. Per learned counsel once this plea was taken that the letter of enquiry dated 13-5-1997 was received by the employee on 27-5-1997 or 28-5-1997, the onus was upon him to establish late delivery viz., within Karachi which he has failed to discharge as no postman was examined for this purpose. Per learned counsel under the General Clauses. Act there is a presumption that a document sent through registered post is deemed to be delivered at the other end in the normal course of events and this could be at the . Maximum within two or three days. Learned counsel has relied upon Dawood Cotton Mills Ltd. v. Guftar Shah PLD 1981 SC 225 and Rashid Ahmad v. Messrs Friends Match Work PLD '1989 SC 503. Consequently, per learned counsel where the employee remains absent despite notice of the enquiry he only has himself to blame for which proposition he has relied upon: Jubilee Spinning and Weaving Mills Ltd. Karachi v. Bladar Khan 1975 PLC 24 and Syed Niaz Ali Nasri v. Mushtaq Textile Mills Ltd. 1980 PLC 610.
10. Next learned counsel has submitted that it is the consistent view of the superior Courts that the findings of the Enquiry Officer could not be ignored or set aside merely on the ground that a view contrary to the one taken by him was possible based upon the available evidence and material. He has relied upon Messrs Crescent Pak Industries Ltd. v. Sindh Labour Appellate Tribunal 2000 PLC 274 and Messrs National Cement Industries Limited v. National Industries Relations Commission 1986 PLC 105.
11. Next per learned counsel for employee has admitted under cross-examination that after being dismissed from service he was engaged gainfully i,e, repair of motor vehicles etc. Which was the source of his livelihood and hence there could not be any question of back-benefits being granted to the employee. For this proposition learned counsel has relied upon:-- National Bank of Pakistan, Hyderabad v. The Sindh Labour Appellate Tribunal 1993 PLC 625, Syed Anwar Ali Shah v. The Agricultural Development Bank of Pakistan NLR 1999 Lah. 127, Muhammad Bashir v. Chairman, Punjab Labour Appellate Tribunal 1991 SCMR 2087, Pakistan Automobile. Corporation Ltd. v.
Mansoorul Haq 2004 SCMR 1308, Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation 2002 PLC (C.S.) 1083 and Civil Applications Nos.59 to 70-Q of 2006, decided by the Honourable Supreme Court of Pakistan.
12. Next learned counsel has submitted that the quantum of punishment is the sole discretion of the employer, which is to be exercised keeping in view the facts and circumstances of the case. In the present matter, it has been established that the employee remained absent without leave and also willfully failed to participate in the enquiry which is an act of gross misconduct and hence the punishment of dismissal is justified. For this proposition learned counsel has relied upon: Pakistan Tobacco Co. Ltd. v. Channa Khan and others 1980 PLC 981. At the most, if the conclusion was reached that the employee did not receive the letter of enquiry in time to participate in the same, he would only be entitled to a fresh enquiry and not reinstatement along with back-benefits as has been ordered by the learned Labour Court. For this proposition he has relied upon Islamabad Club v. Punjab Labour Court No,2 PLD 1980 SC 307, Muslim Commercial Bank Ltd. v. Mahmood Ahmed Butt 1997 PLC 550, Mahmood Shah v. Dawood Cotton Mills Ltd. And Sindh Labour Appellate Tribunal 1982 PLC 365 and The Punjab Provincial Cooperative Bank v. Muhammad Salim Butt PLD 1996 SC 596.
13. Finally, per learned counsel, during the pendency of this appeal the employee has moved an application that upon' reaching the age of superannuation he stood retired from service on 3-1- 2003. Hence, there cannot be any question of reinstatement and if at all only back-benefits can be granted to the employee.
14. For all the foregoing reasons learned counsel has prayed that the appeal of the Company be allowed and that of the employee dismissed.
15. In reply Mr. Muhammad Shafiq Qureshi has firstly submitted regarding the issue whether or not the employee was a workman that per settled law it is the nature of the duties performed by the employee which is to be considered and not his designation. In para.3 of his affidavit in evidence the employee has stated that he was doing manual job viz. Checking the quality of the cloth produced by other workmen and pointing out defects if any to his supervisor. Per learned counsel under cross-examination the employee has not been shaken. His only admission was that he used to check/supervise the quality of the cloth, which does not mean that he was supervising any worker. In fact no question was asked of the employee whether he was supervising the work of others. Similarly, in the affidavit in evidence filed on behalf of the Company it has been stated in para.7 thereof that the employee was responsible to check the quality of the cloth and weavers working under him and also that he used to report directly to the weaving master. Under cross- examination the Company's witness has admitted that the employee's duties were to point out defects in the cloth to the 'weaving master who thereafter got them rectified. Hence per learned counsel it cannot be said that the emplotheyee was working in any supervisory capacity.
Additionally, per the judgment of the learned Labour Court in Appeal No,1 of 1999 (from the orders of the Payment of Wages Authority) the employee has been declared to be a workman. Hence this issue cannot be reopened as it has attained finality being a judgment in personem. Learned counsel relied upon Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani PLJ 1975 Kar. 25, Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani 1979 SCMR 304, Abdul Rasheed v. Chairman Labour Appellate' Tribunal 1997 PLC 34, Central Cotton Mills v. Abdul Aziz 1983 PLC 1010, Bashir Ahmed v. Amin Textile Mills Ltd. 2003 PLC 1, Abdul Razzaque v. Messrs Ihsan Sons Ltd, 1992 SCMR 505, Pir Bakhsh v.. Chairman Allotment Committee PLD 1987 SC 145 and Shahzar Khan v. Sindh Labour Court No,IV 1977 SCMR 103.
16. Regarding the next objection taken by Mr. Mehmood Abdul Ghani, as to the belated delivery of the judgment, Mr. Muhammad Shafiq Qureshi has submitted that, according to the diary sheet of the learned Labour Court, arguments were firstly heard on 4-11-2000 and 7-11-2000 on which date the matter was reserved for judgment to the announced on 30-11-2000. Thereafter, on that date the matter was again adjourned to 14-12-2000 for the same purpose. On 14-12-2000 the matter was posted to 4-1-2001 for announcement of judgment but oft that day it was ordered that fresh arguments should be addressed by both learned counsel. Finally, these arguments were heard on 23-1-2002 and the judgment delivered on 15-3-2002. In view of these circumstances, learned counsel has submitted that judgment was delivered within two months of the date when arguments were heard, which is a reasonable time and in accordance with the directions of the Honourable Supreme Court.
17. Regarding the grievance application being time-barred, learned counsel has submitted that the first grievance notice was served on 6-8-1997 upon the Company by the employee on the basis that he was not being allowed to join his duty and not against his removal from service which was done later on i,e, vide letter dated 9-10-1997. Per learned counsel the Company itself has admitted as much since in para.9 of its reply to the employee's application before the Labour Court where the stand taken was that no reply was sent to this grievance notice, as it was premature.
Accordingly, when the employee was dismissed on 4-10-1997 the second notice was sent on 10-12- d997 and as this also was not responded to by the Company the learned Labour Court was moved on 19-1-1998. Hence per learned counsel since under section 25-A of the IRO notice is to be given within three months of the cause of action it was within time and so also the Labour Court was moved within two and a half months of service of the dismissal notice dated 4-10-1997 which was done by the employee. Consequently, the application before the learned Labour Court was within time.
18. On merits, learned counsel has submitted that admittedly the employee was entitled to 30 days annual leave and hence had applied for the same on 13-2-1997 which was refused by the weaving master who was his immediate superior. Again, in April, 1997 he had applied for such leave but no action was taken upon the same accordingly he went to his native town on 5-4-1997. Thereafter he received a letter on 21-4-1997 from the Company asking him to rejoin his duty to which he replied on 29-4-1997 that he would do so when he became well. However, then a show-cause notice dated 5-5-1997 was received by the employee to which he replied by letter dated 10-5-1997 explaining that he had remained absent due to his medical condition as per attached certificate.
Then he received a letter dated 13-5-1997 on 27-5-1997 asking him to appear before the domestic enquiry on 20-5-1997. Hence, as the enquiry was already over the employee did not appear before the Enquiry Officer and finally he reported for duty on 23-6-1997 when he was not allowed to do so by the Company. Thereafter, he received the letter of dismissal against which he sent a grievance notice to the Company, which remained unresponded and hence he had no remedy except to move the learned Labour Court. Per learned counsel therefore, in the first instance the charge- sheet itself is time-barred as the cause of action for issuance of the same arose to the Company on 5-4-1997 from which date the employee remained absent and the charge was issued on 5-5- 1997 beyond the period of one month prescribed under Order 15(4) of the Standing Orders Ordinance. Secondly, learned counsel has submitted that annual leave is the right of the employee and in case of refusal then the reasons are to be given in writing within the prescribed period vide Standing Order No,8(2). Admittedly, the Company gave no reason to refuse such leave to the employee. Next learned counsel has submitted that the alleged offence does not fall within Standing Order 15(3)(e) of the Ordinance which defines misconduct as there is no allegation that the employee remained absent without leave on any other occasion. In support of this submission, learned counsel has relied upon Obaidullah v. Messrs Ulbrights (Pakistan) Ltd. 1985 PLC 665.
19. Next, learned counsel has submitted that per Standing Order 15(4) of the Ordinance an enquiry is to be held prior to the dismissal however, as per the record it has been established that the letter regarding holding of such enquiry which was fixed on 20-5-1997 was itself posted on 24-5-1997 per the envelope produced by the employee as Exh.A/9. As opposed to this piece of evidence nothing was produced by the Company to establish as to when the said letter was posted although its witness undertook to produce the Registered A.D. Slip etc. In support of this submission, he relied upon Hafeez Shah v. U.B.L. 2001 SCMR 931 and Crescent Jute Products Ltd. v. Muhammad Yaqub PLD 1978 SC 207.
20. As regards the issue of back-benefits, learned counsel has submitted that per the worker he remained unemployed throughout which stand could not be shattered by the Company through cross-examination. In fact it also did not lead any cogent evidence to prove that the employee was gainfully employed the burden of which per settled law was upon the Company where once the worker came out with the plea that he was unemployed. In support of this submission, learned counsel has relied upon National Bank of Pakistan v. Sindh Labour Appellate Tribunal Karachi 1992 PLC 94 and National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1992 PLC 415.
21. As regards the pendency of an industrial dispute, learned counsel has submitted that Standing Order 12(3) of the Ordinance itself clothes the learned Labour Court with jurisdiction to adjudicate a grievance application filed by the workman. In this regard, learned counsel has relied upon Messrs Miliat Tractors Ltd. v. Punjab Labour Court No,3 1996 PLC 300, Qayyum Nawaz v. N.-W.F.P. Small industries Development Board, Peshawar 2000 PLC 215, Crescent Jute Products Ltd. Jaranwala v.
Muhammad Yaqub PLD 1978 SC 207 and Messrs Fauji Sugar Mills Khoski District Badin v. Ali Nawaz 1997 PLC 451.
22. I have heard both the learned counsel and my conclusions are as follows:
23. Regarding the first legal objection taken by Mr. Mehmood Abdul Ghani as to the status of the employee, it would be seen that per Standing Order 2(i) of the Ordinance a workman has been defined to mean any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. In this connection, the law is very well- settled viz. The test for determining the question whether an employee is a workman or not would be the nature of the work being performed by him. If it is manual or clerical (whether, skill or unskilled) then the employee would come within the definition of the term "workman" per Standing Order 2(i). Additionally, it would also have to be examined whether manual or clerical work is incidental to the main work or a substantial part of it is being performed by the employee. Hence, where a person employed in a supervisory capacity does some manual or clerical work incidentally, he would not come within the definition of a worker and vice versa. In this respect reference can be made to General Manager, Hotel Intercontinental, Lahore v. Bashir A. Malik PLD 1986 SC 103, Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar 1993 SCMR 511 and Granulars (Pvt.) Limited v. Muhammad Afzal 2002 PLC 1. Upon examination of the affidavit in evidence filed by the employee it would be seen that in para.3 of the same he has asserted that the duties being performed by him were manual in nature viz. He used to open the cloth in the running machine and check its quality in accordance with specifications. If any defects were found in the same he would bring it to the attention of the Fitter/Incharge whereafter such defects were removed. He has further stated that he was not supervising any other worker but he himself was working under the supervision and control of Weaving Incharge namely Muhammad Farid. Further in para.4 of his affidavit the employee has submitted that he was employed in the workmen category and always treated as such by the Company which would be reflected from his pay, leave, bonus and Eid clothes etc. As admissible to other workmen of the Company. Under cross- examination he has admitted that he was initially appointed a quality checker of the clothe manufactured by the Company, per his appointment letter Exh.3/A. So also Abdul Aziz Weaver and Afzal Coolie used to assist him during the checking of the cloth. In the affidavit in evidence filed by one Muhammad Fayyaz on behalf of the Company it is stated that the employee was in fact as supervisor and hence was responsible for supervising the quality of the cloth produced by the Company and consequently could not come within the definition of a "workman" within the meaning of Standing Order 2(I) as well as the Industrial Relations Ordinance, 1969. Further that Abdul Aziz. Weaver, Sajawal Khan Weaver and Afzal (trainee weaver) were working under him who used to open the cloth on the running machines and the employees used to check the quality of the same in accordance with specifications and record the same in the defect report which is produced as Exh.R/4. The Company's witness also deposed that the employee used to report directly to Farid Weaving Master. He has further deposed that the former used to take his food in the Officers Mess and not in the Canteen meant for the workers for which a monthly deduction was made from his salary, in support of which he has produced the lists of the staff mess denoting such deductions. The Company's witness has also deposed that the employee not being covered in the Workman category therefore, he was not registered under the Social Security Scheme and hence he and his family were being reimbursed for their medical bills by the Company. Under cross- examination this witness has admitted that Fariduddin the Weaving Master was incharge of the employee as well as -- the Weaving Department and in fact he is the Production Manager of the Weaving Department. He has further admitted that at least 150 workers are working in the Weaving Department and 5 to 6 supervisors are checking the quality of the cloth produced by them and that it was the duty of the employee to point out the defects in the cloth to the Weaving Master. He has also admitted that the persons working under the employee viz. Afzal, Sajawal and Aziz have not been examined by the Company before the learned Labour Court. Further that the employee comes in the category of staff and hence was not a member of any trade union, which entitle him to the benefits of any settlement including bonus etc. However, the employee received the bonus through the Court, which. Was not challenged by the Company.
24. In view of the foregoing evidence on the record, it would be seen that the Employee's duty was to check the quality of the cloth produced by the Company and in this regard he was assisted by two others viz. Abdul Aziz and Afzal who were the Weavers. He has admitted as much under cross- examination. Furthermore, the deposition of the Company's witness to the effect that another person viz. Sajawal Khan, Weaver, who was assisting him as well has gone unrebutted during cross-examination. It has also come on the record that in fact they were at least 150 workers in the Weaving Department who were supervised by 5 to 6 Supervisors and all of them ultimately reported to the Weaving Master. Hence, it can safely be said that he was not involved in any clerical work but doing skilled work as he had the capacity to check the quality of the' cloth being produced by the Company. Consequently, it would not have to be determined whether the work performed by the employee could be categorized as skilled manual work within the definition of the terms "Workman" per section 2(i) of the Standing Order Ordinance. In the case of Hotel Intercontinental v. Bashir A. Malik (supra) the Honourable Supreme Court held that the employee of an industrial or commercial establishment could be broadly divided in to following two categories:--
(i) those who are workmen within the meaning of the terms as per Standing Order 2(i).
(ii) those who are not such workmen as for instance the manager of a -factory or a person responsible to the owner for the supervision and control of such establishment etc. This category was further divided into those who are the officers who have got directional and controlling power and those who may not possess any such power but yet not be workmen because the nature of duties required to be performed by them does not involve manual or clerical work.
25. Dilating further the Honourable Supreme Court also held that it is the essential nature of the work done by the employee that would be the fundamental consideration for determining the question and not his designation. In the said case, it was further held that manual work entails physical exertion to distinguish it from mental or intellectual exertion involved in clerical work. But both manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction control and supervision in discharging the same. Hence the Honourable Supreme Court in the instant case came to the conclusion that the employee in question who was a Shift Engineer and his duties involved maintenance and repair of air-conditioning plants, boilers, laundry equipment and Kitchen equipment, was a skilled engineer whose duties were to be performed by application of his expert technical knowledge of sophisticated machinery. This could hardly be called manual labour.
26. In the case of Abdul Razzaq v. Ihsan Sons Limited (supra) the aforementioned case was relied upon as also the case of Rehmat Ali v. Security Paper Ltd. PLD 1982 Kar. 913 wherein it was held that the Standing Order Ordinance being a beneficial enactment is to be construed liberally in favour of the labour class and hence 110 restriction could be placed on the scope of the definition of workman in section 2(i) of the Ordinance.
27. In view of the aforementioned discussion, it can be safely concluded that the employee's duty was to check the weaving pattern in the cloth produced by the Company which in my opinion, does not involve any specialized or expert technical knowledge. So also it would be seen that he along with others was being supervised in his work by the Weaving Master.. Therefore, he can be categorized as a workman and hence all the labour laws including the Standing Order Ordinance would apply with full force in his case.
28. Mr. Mehmood Abdul Ghani's next contention is that arguments were heard by the learned Labour Court on 7-11-2000 but judgment was delivered on 15-3-2002. However, upon examination of the R&P it has transpired that in fact, the matter was reserved for judgment on 7-11-2000 for the purpose of pronouncing the same on 18-11-2000 whereafter it was posted for the same purpose on 30-11-2000 and 14-12-2000. On 4-1-2001 the matter was listed for re-hearing and thereafter adjourned from time to time for the same purpose till finally it was reserved for judgment on 23-1- 2002 and thereafter judgment delivered on 15-3-2002 which is within three months of the last date and hence in accordance with the directions given by the Honourable Supreme Court in a number of cases.
29. Mr. Ghani's next argument is that the application filed before learned Labour Court on 19-1-1998 was time-barred being beyond 60 days from the date on which the cause of action accrued for this purpose viz. Service of the first grievance notice upon the Company dated 6-8-1997 when the employee claimed reinstatement. In this regard, it would be seen that as per the affidavit in evidence filed by the employee before the learned Labour Court he had sent the first grievance notice on 6-8-1997 against the Company's refusal to take him back in their employment and secondly on 10-12-1997 after receipt of dismissal letter, dated 4-10-1997. He was not asked any question under cross-examination on this assertion and so also there is nothing in the affidavit of the Company's officer vis-a-vis the grievance notices sent by the employee to the Company. In the application before the learned Labour Court the employee has also stated that upon returning from his native town on 23-6-1997, the Company refused to take him on duty whereafter he served a grievance notice on '6-8-1997. Then he received a dismissal letter, dated 4-10-1997 to which he sent a grievance notice on 10-12-1997 through Registered Post A.D. a copy of which has been filed along with the application. In its reply, the Company has admitted receipt of the first grievance notice dated 6-8-1997 and further, stated that no reply was sent since it was premature. Again, the receipt of the second grievance notice dated 10-12-1997 has also been admitted by the Company but no reply was sent as it did not merit any consideration. In these circumstances, it, would be seen that the employee is not under any legal obligation to approach the learned Labour Court for his remedy in case the, employer does not accede to his demands. Hence, the employee was perfectly within his right when he did not file any such application before learned Labour Court consequent upon his first grievance notice. Hence, in my opinion, the application before the learned Labour Court filed on 19-1-1998 was well within time i,e, 60 days as provided under section 25-A of the Industrial Relations Ordinance, 1969 (since repealed) being counted from the date of the second grievance notice. Dated 10-12-1997.
30. The third legal objection taken by Mr. Mehmood Abdul Ghani is that no industrial dispute has arisen in the matter and hence the learned Labour Court's jurisdiction is not attracted as such. In this regard, it would be seen that per Standing Order 12(3) of the Ordinance, no workman can be terminated, discharged or dismissed from service etc., except by an order in writing by the Company. Furthermore, per section 25-A(l) of the IRO a worker may bring his grievance in respect ofany right guaranteed or secured by or under any law or any awards of settlement for the time being in force to the notice of his employer in writing either himself or through his shop steward within three months of the day on which cause of such grievance arises. Thereafter, if no decision is communicated to the worker by his Employer or the former is dissatisfied with the same, then the matter may be taken to the Labour Court. Hence, in my opinion, it can safely be said that Standing D Order 12(3) certainly embodies a right, which as such is guaranteed to the employee thereunder and hence certainly amenable to the jurisdiction of the learned Labour Court under section 25-A(1) of the IRO as all along his case was one of unfair dismissal. In this regard reference can be made to the case of Abdul Razzaq v. Ihsan Sons Limited (supra) wherein the Honourable Supreme Court held inter alia that where the services of an employee are terminated in breach of Standing Order 12(3) of the Ordinance then he would fall within the ambit of the definition given in section 2(1) of the same and need not fall within the purview of the definition of worker and workman provided in section 2(xxviii) of the IRO 1969. However; if an employee wants to press into service section 25-A of the IRO for enforcing any other right granted under the Standing Order Ordinance, other than that covered Standing Order 12(3) then he should also fall within the definition of "worker" and "workman" provided in section 2(xxviii) of the IRO, 1969 Insofar as the case of Trustees of the Port of Karachi v. Muhammad Saleem (supra) relied upon by Mr. Mehmood Abdul Ghani, is concerned, therein the Honourable Supreme Court reached the conclusion that the worker was enforcing a right granted to him under section 25-A of the IRO in his capacity as such under section 2(xxviii) of the same and hence of necessity also had to display the existence of an industrial dispute as provided under section 25-A (ibid). Hence, in my opinion, this case is distinguishable on facts as in the present matter, I have already come to the conclusion that the employee is covered under the definition of, a workman given in section 2(i) of the Standing Order Ordinance and agitating his unfair dismissal thereto per Standing Order 12(1).
31. Regarding merits of the case, it would be seen that per the application filed before the learned Labour Court, the employee applied for annual leave on 13-2-1997 w,e,f, 22-2-1997 to 23-3-1997 on the ground that his wife was sick but the same was rejected by the Incharge of the Weaving Department Muhammad Farid without assigning any reason although such leave was his right under the Company's Rules. He again applied for 30 days annual leave w,e,f, 5-4-1997 to 3-5-1997 on the basis of urgent work but yet again, Muhammad Farid declined it and returned it to him. In these circumstances, as the employee had to go urgently to his home town, he proceeded thereto after again applying for leave with the Company w,e,f, 5-4-1997. Thereafter he received a letter from the Company dated 21-4-1997 on 28-4-1997 rejecting his leave application and directing him to join his duty to which he duly applied on 29-4-1997 stating that he is ill. Thereafter he received a show-cause notice from the Company dated 5-5-1997 on 9-5-1997 to which the applicant sent his reply on 10-5-1997 enclosing his medical certificate. However, the Company sent him a letter, dated 13-5-1997 'intimating him to attend the domestic enquiry on 20-5-1997 at 11-00 a.m. This letter was received by the employee on 27-5-1997 as it was posted on 24-5-1997 and hence he did not go to attend the hearing. Finally, the employee reported for duty on 23-6-1997 along with another application for leave and medical certificate but he was not entertained by the Company.
Consequently, he sent a grievance notice as aforementioned and eventually approached the learned Labour Court for his remedy. On the other hand, in its reply the Company's case is that the Employee never applied for any leave from 22-2-1997 to 23-3-1997, however, his leave application for 30 days from 5-4-1997 was rejected ,due to exigencies of work and when he failed to join his duty he was issued the show-cause notice dated 5-5-1997. His reply to the same was not accepted and a domestic enquiry was initiated .In which he failed to participate in consequence of which the employee was dismissed from service for remaining absent without leave.
32. In his affidavit in evidence the employee has stated that he had given his first leave application on the ground that his father was ill who eventually died. Then, he applied again on 25-3-1997 for leave from 5-4-1997 to 3-5-1997 being his annual leave but since no action was taken upon the same he went to his home town after intimating the Company, there he fell ill and hence could not join his duty, in support of which he had sent a medical certificate to the Company. He has reiterated that he received the letter of enquiry on 27-5-1997 having been posted on 24-5-1997 and wherein he was intimated that the enquiry was to be held on 20-5-1997. Under cross-examination he has stated that the reason why he was obliged to leave his duty was the serious ailment of his wife.
33. In his affidavit in evidence the Company's Officer has deposed that leave was refused to the employee due to the exigencies of work and also the enquiry was conducted fairly in accordance with the rules of natural justice. Under cross-examination, the officer has admitted that the employee's first leave application was rejected by Muhammad Farid, Incharge of the Weaving Department and the second one by the Company. He could not produce either the letter of rejection or the postal receipt etc. Regarding the enquiry letter, dated 13-5-1997 for holding the enquiry on 20-5-1997. He has also admitted that the employee had thirty days leave to his credit.
34. In view of the foregoing evidence on the record it has been established that although the employee has waivered in the reasons whereby he wanted to proceed on leave, admittedly he was entitled to thirty days annual leave. He applied for such leave from 5-4-1997 to 3-5-1997 which remained unactioned whereafter he left for his home town w.e,f. 5-4-1997 in some emergency at the same time applying again for the said leave. Thereafter, he received the Company's refusal to grant him leave vide letter, dated 21-4-1997 on the ground that, it could not be considered at the stage to which he replied on 29-4-1997 stating that he is ill and would rejoin his duty upon becoming well again. He then received the show-cause notice dated 5-5-1997 to which he replied on 10-5-1997 stating that he was still unwell. As regards the receipt of the letter, dated 13-5-1997 whereby the domestic enquiry was ordered against him and hearing fixed on 20-5-1997, he actually received it on 27-5-1997 as it was only posted on 24-5-1997, hence he could not attend it.
He eventually joined his duty on 23-6-1997 but was not entertained by the Company although he had applied for further leave along with medical certificate etc. He then sent the first grievance notice to the company on 6-8-1997. Ultimately, the Company dismissed him from service on 4-10- 1997 whereafter he sent the second grievance notice dated 10-12-1997 and then approached the learned Labour Court. The employee has produced the photocopy of the envelope in which a registered letter was posted to him on 24-5-1997 and although no one has been examined from the post office etc. By either side, it can be concluded safely that this letter contained no other document than the letter of enquiry dated 13- 5-1997, since no question has been asked in cross-examination of the employee regarding the same. Furthermore, after the letter of enquiry dated 13-5-1997 the only other letter written to the employee by the Company is that of dismissal dated 4-10-1997. Consequently, in my opinion, as it has been established that the letter of enquiry was received by the employee after 24-5-1997 when the date had already passed i,e, on 20-4-1997, the enquiry proceedings are of no value at all as the employee was not given any chance to defend himself whatever may be the worth of such defence. In these circumstances, it was incumbent upon the Company to issue the employee with a fresh letter fixing another date for the domestic enquiry which was not done. Consequently, the impugned dismissal order, dated 4-10-1997 cannot be sustained as it would amount to unfair dismissal, the enquiry proceedings having been held in the absence of the employee without notice to him, and hence against the principles of natural justice.
35. As to the contention of Mr. Mehmood Abdul Ghani regarding the presumption under the General Clauses Act that a document sent through registered post is deemed to be delivered at the other end in normal course, it would be seen that such is certainly the settled law and hence there is no cavil with the same. However, in the present case, as observed above, the post mark on the envelope would indicate that it was indeed posted on 24-5-1997 and hence it would be assumed that it was received on 28-5-1997 or thereabout as asserted by the employee when the date of the hearing had already passed.
36. In view of the foregoing discussion, in normal circumstances, the matter would have been remanded to the Company for the purpose of holding a fresh enquiry, however, this is not possible as the employee has already reached the age of superannuation. For all the foregoing reasons, it is directed that the employee would be considered to be in service of the Company from the date of his dismissal till the date of his superannuation. This course of action, finds support in the case of Hafeez Shah v. UBL (supra). As to the issue of back-benefits, per settled law, where the employee's case is that he remained unemployed throughout after he was dismissed, the burden shifts upon the employer to establish otherwise. In the present case, both in the application before the learned Labour Court as well as in his affidavit in evidence, the employee has stated that after dismissal from service he remained unemployed. However, under cross-examination he has admitted that after being dismissed from service he was employed gainfully viz. In the repair of motor vehicles etc. Nevertheless, there is nothing on the record to establish as to how much the employee was earning in this venture for which the burden fell upon the Company. In these circumstances it would be just and equitable to direct that the employee would be entitled to 50% of his back- benefits. . Both the appeals are IF disposed off in terms of the foregoing order.