AKHTAR FAROOQ, PRESIDING OFFICER - The facts which form the background for filing the above grievance application as contained in the grievance application stated to be are that Rahila Umar daughter of Fayyaz Umar hereinafter called as the "applicant" was appointed on permanent basis in the establishment of W. Woodward Pakistan (Pvt.) Limited, situated at F-275, S.I. T.E., Karachi, hereinafter called as the "respondents", which is exclusively owned, managed and supervised by the Foreign Management and employed more than 300 workers/ employees as such all the labour laws including the I.R.O., 1969 (now amended as I.R.O., 2002) are fully applicable to them. The applicant claims to have been discharging her responsibilities with all satisfaction of her superiors and was accordingly confirmed in service. It is pleaded that the standard as well as the quality control for the products of the respondents had been excellent/superb but could not maintain its such standard after its purchase by a local group of companies under the Chairmanship of Khalil Ahmed Nani Tanwala, as they failed to observe/continue the standard of Quality Control of the products. It is alleged that the new management was bent upon to force the old and loyal employees of the respondents' establishment, to tender resignations and by utilizing the tactics arrived to pay their service dues and also used to compel them including the applicant to refrain from continuing the service. Resultantly in response to her resignation from service dated 11.5.1998, the applicant was also issued a show-cause notice dated 15.5.1998 levelling incorrect, baseless and false allegations against her having no link, whatsoever, with the applicant, who replied the said charge-sheet vide her letter dated 27.5.1998 but to no avail and she was issued a letter dated 10.6.1998, informing her for appointment of the Enquiry Officer to conduct inquiry against her without mentioning the place of inquiry. The said inquiry letter was also replied by the applicant vide her letter dated 13.6.1998. The applicant has pleaded that being the Quality Control Manager, she used to perform manual and clerical nature of work and had no supervisory or managerial functions and even she was neither authorized to hire or i.e any employee/worker nor could grant any benefit or curtail the same in respect of any worker as such the claims her to be a permanent worker under the I.R.O.., 1969 as well as the Standing Orders Ordinance, 1968. The applicant submitted various letters to the respondents for release/payment of her service dues/benefits mainly because adoption of painful acts on the part of the respondents had followed the applicant to tender resignation and the entire subsequent proceedings such as serving of the show-cause notice etc. Was because of refraining of the respondents to pay the service benefits to the applicant but were of no avail. Ultimately the applicant received an order of her dismissal from service dated 22.7.1998, without any legal justification.- The applicant assailed the above dismissal order vide her letter dated 30.7.1998 received by the respondents through registered post AD on 31.7.1998, but the respondents did not respond to it. It is alleged that the impugned order of the dismissal of applicant from service is illegal and unwarranted as the applicant is not responsible for; the allegations levelled against her by the respondent in reply to the resignation of the applicant as the same were allegedly levelled only to avoid her payment of service dues, ft is further alleged that no. Opportunity for appearing and adducing justification for the alleged .
Referring in the respondents' letter dated 15.5.1998 was provided to the applicant nor she was given a second show-cause notice or even personal hearing before her dismissal and, therefore, the order of dismissal of the applicant is baseless, unjust, improper and in violation of the mandatory provision of labour laws, which has rendered the applicant jobless, constraining her to i.e the present application under Section 25-A of the then prevailing I.R.O., 1969, in this Court praying for her reinstatement in service with full back benefits by setting aside the order of her dismissal.
2. The respondents submitted a reply statement contending therein that the grievance application of the applicant is not legally maintainable as the applicant being the Quality Control Manager in respondents' company was entrusted with powers of supervision, directions, control and independent application of her mind and while enjoying such powers, she used to check and sign "Daily Production Reports" and also used to approve the leave applications of the employees employed under her control. It is, therefore, contended that she is not a worker under the provisions of either I.R.O., 1^69 or the Standing Orders Ordinance, 1968. It further contended that the services of the applicant were not dismissed in consequence of an industrial dispute nor her said dismissal had led to such a dispute and, therefore, no right guaranteed or secured under any law, award or settlement was accrued to the applicant to i.e the present grievance application, which is further hopelessly time- barred. On merits, it pleaded that the applicant neither employed as a worker nor she was doing any manual or clerical job in the respondents' company. The other allegations levelled by the applicant in her grievance application against the respondents' management have been emphatically denied as false, baseless and unfounded except that the purchase of respondents' company by the group of companies under the Chairmanship of Khalil Ahmed Nani Tanwala. Giving the background for taking disciplinary proceedings and action against the applicant, it has been submitted that the respondents' company received back approximately 3- lacs sachets of O.R.S. From its distributors on account of solidification and more batches of the same product total 58800 sachets were also ling in the respondents' factory in unsealable condition due to leakage. An inquiry was conducted to ascertain the reasons for such problems when it was revealed that these batches were passed by Quality Control Department under the influence of the applicant. It was further found that the applicant along with Plant Manager had permitted the destruction of 1- lac bottles of Gripewater, which were lying unsealed due to the alleged manufacturing defect. It is further alleged that the above act was performed without bringing it to the knowledge of the Top Management. It was further reported from the market that the distribution had received expired stock of Court-B Syrup with fungus growth, which had also damaged the image of the company. It is further alleged that these batches were also cleared under the supervision of the applicant. It is further contended that approximately 1-lac bottles of Kaopulgitc Syrup were retuned from the market to the respondents during last year due to cake formation and solidification. These batches were also released by the applicant in her capacity as In charge of Quality Control Department. It was further noticed , that the testing equipments of laboratory were not properly maintained which made the reliability of quality control about checking of performance in the laboratory highly doubtful. It is further alleged that as the applicant remained absent for about two weeks, the factory was constrained to run without Plant Manager and Quality Control Manage! During such period. Consequently, the applicant was issued a show- cause notice dated 15.5.1998 calling upon her to submit reply within 7 days, as to why the disciplinary action should not be taken against her. It is further contended that the reply dated 27.5.1998 tendered by the applicant was found unsatisfactory as such an independent and impartial inquiry was ordered in the matter and inquiry notice dated 10.6.1998 was also sent to the applicant to appear in the inquiry as per schedule. It is alleged that the applicant intentionally and purposefully avoided to participate in the inquiry proceedings vide her letter dated 13.6.1998, constraining the Enquiry Officer to proceed and decide the inquiry ex parte and accordingly the Enquiry. Officer submitted his findings to the management wherein charge of misconduct was' fully established against the applicant as contained in the show- cause notice dated 15.5.1998 resulted in the dismissal of the applicant from service with immediate effect vide the dismissal letter dated 22.7.1998. It is submitted that , the provisions of I.R.O., 1969 and/or the Standing Orders Ordinance, 1968 are not applicable in the instant case mainly, because the applicant being the In charge Quality Department was not a worker under such provisions of law. It is prayed that the grievance application of the applicant be. Dismissed. .
3. On above pleadings of the parties, following i.e issues were settled by the Court on 21.02.2000:-
(i) Whether the present application filed by the applicant is maintainable or not?
(ii) Whether the present application under Section 25-A of the I.R.O., 1969 filed by the applicant is within time or not?
(iii) Whether the applicant i$ not a workman/worker under the provisions of I.R.O., 1969 and the Standing Orders Ordinance, 1968?
(iv) Whether the services of, the applicant were dismissed on the basis of proved, act of misconduct after drawing disciplinary proceedings in the matter?
(v) Whether the applicant is entitled to get the ; benefits as mentioned in the prayer clause or not?
4. The applicant Rahila Umar examined her as her own witness, whereas Raza-ur-Rahman; the Enquiry Officer and Muhammad Yousaf, the Factory Manager of the respondents were examined on behalf of the respondents.
5. I have given my anxious thoughts to the submission made on behalf of both the parties and have also, perused the entire material available on record. My findings on the above issues with reasons are as under:- ISSUE NO. (i) Not maintainable..
ISSUE. NO. (ii): Redundant.
ISSUE NO. (iii): The applicant is not proved to be worker for the purpose of the Standing Orders Ordinance, 1968 and the I.R.O., 1969, to maintain the grievance application.
ISSUE NO. (iv): Affirmative.
ISSUE NO. (v): Not entitled for any relief and his grievance application is liable to be dismissed.
REASONS ISSUE NOS. (i), (ii) and (iii):
6. The evidence and the arguments on the above issues being common, all these issues are interlinked and interconnected hence may conveniently be considered and discussed together.
The respondents have attacked the maintainability of the grievance application on three grounds firstly that the grievance application of the applicant is barred by limitation; secondly that the applicant is not a worker under the provisions of I.R.O., 1969 or the Standing Orders Ordinance,. 1968 and, is therefore, not competent to invoke the jurisdiction of this Court under Section 25-A of the I.R.O., 1969 for her reinstatement; and thirdly that the services of the applicant have not been dispensed with as a result of or in consequence of an industrial dispute nor led to such a dispute and, therefore, no right guaranteed or secured to the applicant, has ever accrued to her to i.e the grievance application. As against this the contention of the applicant is that the grievance application is legally maintainable as the. Same has been filed within the prescribed period of limitation after her dismissal from service, which being illegal amounts to an industrial dispute for air practical purposes and the applicant being a worker for the purpose of the provisions of I.R.O., 1969 as well as the Standing Orders Ordinance, 1968, is legally competent to invoke the jurisdiction of this Court by Way of filing an application under Section 25-A of the I.R.O., 1969.
7. So far the issue of limitation is concerned, the burden is on the respondents to establish that the grievance application of the applicant is time-barred while the burden to prove the other legal objections including the status of the applicant to i.e the grievance application, is certainly on the applicant to establish that she is/was a worker for the purpose of I.R.O., 1969 and or the Standing Ordinance, 1968 to maintain her grievance application under Section 25- A of the I.R.O., 1969. In this respect, the evidence of the applicant is available on record so far the applicant's side is concerned whereas the evidence the evidence of Enquiry Officer Raza-ur-Rehman and Muhammad Yousaf, Factory Manager of the respondents, is available on behalf of the respondents.
Since the condition precedent for filing an application under Section 25-A of the of the I.R.O., 1969, is that the person filing any such application must be worker under the Standing Orders Ordinance, 1968 I deem it necessary to first discuss the second part of the legal objection to the maintainability of the grievance application, mainly because if the applicant fails to establish her to be a worker under the Standing Orders Ordinance, 1968 she is legally debarred to i.e a grievance .Application under Section 25-A of the I.R.O., 1969 and consequently it would be immaterial that her grievance application is within the prescribed period of limitation or otherwise i.e. Time-barred.
Thus coming to the controversy as to whether the applicant is a worker or otherwise for the purpose of the I.R.O., 1969 or the Standing Orders Ordinance, 1968, it has been contended by the applicant that she was appointed as a worker in the respondents' establishment. In any case, the applicants has not denied that she used to' work and look after the Quality Control Department of the respondents in her capacity as Manager Quality Control. She has further contended that as Manager Quality Control, she used to perform the work of manual and clerical in nature and had no supervisory or managerial functions. She has gone to the extent that she was not authorized to hire and i.e any employee/worker and was even not authorized to grant any benefit or curtail the same, in respect of any worker, who is covered by the definition of worker under the I.R.O., 1969 as well as the Standing Orders Ordinance, 1968. According to her she received the order of dismissal from service on 22.7.1998, which being illegal, she had chosen to i.e a grievance application on 14.10.1998 i.e. Within prescribed period of limitation and, therefore, her grievance application is legally maintainable On the other hand, the respondents have contended that the applicant used to perform the duties, of Quality Control Manager in their establishment and was entrusted with the powers of supervision, direction, control and independent application of her mind while enjoying said powers she used to check and sign the daily production reports and also used to approve the leave applications of the employees employed under her control and it is, therefore, submitted that she is not a worker either for the purpose of I.R.O., 1969 or the Standing Orders Ordinance, 1968.
8. Coming to the respective oral and documentary evidence brought on record on behalf of both the parties, one fact, which is quite clear, is that although no chart of duties has been filed by any party, yet it has been admitted by the applicant in her cross-examination that she was Quality Control Manager in the respondents' establishment and in her such capacity she used to sign the daily production reports, which are filed as Annexures R/1 to R/14, with the reply statement. This is not only but she also sanctioned two days' leave to one of her subordinate worker as is evident from Annexure R/15 with the reply statement and she admitted it in her cross-examination. Of course she claims to have tested the samples herself, in addition to supervise the work of quality control which clearly shows that her main function was to supervise and control the work of Quality Control Department and her additional duties such as taking of samples for the purpose of testing, were auxiliary to her main duties of supervisory and, therefore, her claims for having performed any manual and clerical nature of work in the shape of testing the samples in addition to her main, supervisory and managerial duties, would not be helpful to bring her within the ambit of the definition of a worker either under the Standing Orders Ordinance, 1968 or the I.R.O., 1969, particularly when there is nothing in Black & White that she used to perform any manual or clerical work and she clearly admits in her cross-examination that she was neither a member of the employees union nor was extended any benefit allowed to a worker except the facility of old age benefit. A mere availing of Old Age Benefit facility is in no way sufficient to bring her Within the ambit of a worker for the purpose of the Standing Orders Ordinance, 1968 or the I.R.O., 1969. The burden is on the applicant to prove that she is a worker under the Standing Orders Ordinance, 1968, which she has failed to discharge. I, therefore, hold that the applicant has failed to establish her a worker for the purpose of the Standing Orders Ordinance, 1968 pr. The I.R.O., 1969 and consequently she could not maintain a grievance application under Section 25-A of the I.R.O., 1969 and her grievance application is legally not maintainable. After it is held that her grievance application is not maintainable. After it is held that her grievance application is not maintainable it becomes immaterial whether it is within the prescribed limitation or beyond such period. The issues Nos. (i),
(ii) and (iii) are accordingly decided holding that the grievance application is not legally maintainable.
ISSUE NO. (IV):
9. The burden is again on the applicant to establish that her dismissal from service is illegal but she has failed to establish it mainly because she has admitted in her cross-examination that she did not participate in the enquiry proceedings as the inquiry letter did not contain the date, time and place for such inquiry. But on the other hand, copy of such letter dated 10.06.1998 filed by the applicant herself as Annexure 'D' with her grievance application clearly contains that the management had decided to conduct an internal inquiry through Mr. Raza-ur-Rehman, Technical Advisor, who was appointed as Enquiry Officer and the inquiry was scheduled to be held on Tuesday, the 16th June, 1998, giving option to the applicant to appear before the Enquiry Officer, to defend herself. Thus it is very clear from the contents of the above-said inquiry letter that the date and day for conducting the inquiry were clearly mentioned therein. The designation of the Enquiry Officer, who belongs to the same establishment where the applicant used to work, was also mentioned in the said letter and, therefore, it cannot be said that the venue of the inquiry was not intimated to the applicant, which was the office of the Enquiry Officer in the respondents' establishment. In such circumstances it is understood that the office of the person appointed as Enquiry Officer would be the place of inquiry. But as the applicant had not chosen to appear before the Enquiry Officer, her reluctance to participate in the inquiry is even quite evident from her own letter dated 13.6.1998 filed as Annexure 'F' with her grievance application as according to her neither the inquiry had any concern with her nor she was a part of the inquiry as such the Enquiry Officer was legally justified to proceed with the inquiry in absence of the applicant and accordingly proceeded the inquiry ex parte against the applicant and consequently the Enquiry Officer finding the applicant guilty of the charges of misconduct levelled against her submitted such report and it was, therefore, decided by the management to dismiss the applicant from service with immediate effect and the I applicant was accordingly intimated by the management with I such decision vide its letter dated 22nd July, 1998 filed as I Annexure 'F', with the^grievance application, in the said letter the applicant was also advised to settle her accounts with the Finance Department of the respondents during the working hours on any working day. Since the applicant deliberately avoided to participate in the inquiry, if cannot be believed that she did not appear in the inquiry for want of knowledge about the date or venue of such inquiry, as has been specifically alleged by the applicant in para-8 of her grievance application. In fact after it is held that the grievance application of the applicant is legally not [maintainable, this issue involving the controversy about the [legality of the dismissal of the applicant from service becomes redundant and is accordingly decided against the applicant in favour of the respondents.
ISSUE NO. (V):
10. As a result of the findings on above issues including issues Nos. (i), (ii) and (iii) particularly when the grievance application of the applicant is held to be legally not maintainable, the grievance application of the applicant is accordingly dismissed.
Announced in open Court, this 1st day of October, 2006