ZUBDA-TUL-HUSSAIN, J.--- This Labour Appeal under Section 48 of the Industrial Relations Ordinance, 2002 is directed against the judgment dated 5.3.2008 whereby the Presiding Officer, Punjab Labour Court No. 2, Lahore, accepted the grievance petition of the respondent, Munawar Khaliq, filed under Section 46 of the said Ordinance.
2. The respondent, Munawar Khaliq joined service in Escorts Pakistan Ltd. As a Purchaser on 1.9.1991 and after serving as such for some time, it is alleged, the post and the portfolio of the respondent was re-designated as Manager Purchase though he continued to perform the same arduous duties which were clerical and manual in nature without having any managerial or supervisory character . The respondent claimed to be a "workman" under the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the "Standing Orders Ordinance"). On 26.2.2006 a letter was issued to the respondent for termination of his services stating therein that his services were "no more required by the company" and he was discharged from the service with immediate effect "as found being surplus".
3. In the grievance petition the respondent chalked out various details of the manual and clerical duties performed by him and claimed that there was no allegation of misconduct against him for which reason the termination of the services was unlawful. He then attacked the validity of the aforesaid termination letter dated 28.2.2006 on the ground that no explicit reasons had been stated in the letter for the action taken against him which offended against the mandatory provision of Standing Order 12(3). The respondent then concluded that his removal from service was illegal, arbitrary, mala fide in law and facts and he had been rendered jobless against the principles of natural justice. As the grievance notice under the law did not bear the desired fruit, the petitioner approached the learned Punjab Labour Court No. 2, Lahore through the grievance petition referred to in the above.
4. Contesting the grievance petition, the appellants/ respondents stated that it was not maintainable under the law and even otherwise the petitioner being a Purchase Manager did not qualify as a "worker" or "workman" within the meaning of Standing Orders Ordinance, 1968 Or the IRO, 2002. As to the termination letter it was maintained by them that it was issued in accordance with the provisions of law because due to reorganization of the establishment and computerization of the working in various Sections the petitioner who was not computer literate had become redundant. It was further contended that the petitioner had already attained the age of superannuation by reaching 60 years and he was no more eligible for employment in the company. On merits it was denied that the petitioner was performing manual and clerical functions. It was rather added that he belonged to the managerial cadre to which the Labour Laws under reference were not attracted.
5. The case of the appellants is broadly, based on the following contentions:---
(1) The respondent was not a "workman" entitled to invoke the jurisdiction of the Labour Court.
(2) After the re-designation of his post he had become a member of the administrative and supervisory echelon.
(3) In the process of the re-organization of the appellant-establishment the services of the respondent had become superfluous.
( ) That due to the introduction of the computer system the respondent became surplus as he was not computer literate.
(5). The petitioner having attained the age of superannuation of 60 years was even otherwise liable to retirement.
(6) The impugned letter of termination of the petitioner vividly gave the reasons for his termination and the learned Labour Court erred in concluding that it did not explicitly state the reasons for the action against the respondent.
5. The most important aspect of this case, which goes a long way to determine the controversy also, is that on record there exist only the evidence of respondent.. The appellants after obtaining a number of adjournments for production of evidence ultimately opted for not producing any evidence. They rather relied upon the evidence tendered by the respondent.
6. The objection regarding the maintainability as raised in the reply of the appellants was primarily unreasoned. However, during the arguments the learned counsel for the appellants tried to make out a case that the grievance of the respondent was devoid of any industrial dispute, a condition precedent for invoking the jurisdiction of the Labour Court under the IRO.
7. This contention is of course misconceived. It has been repeatedly observed by the superior courts of this country that right to seek redress has been made available to the "workman" under the provisions of Standing Order 12(3) of Ordinance, 1968. The services of the respondent having not been terminated in connection with or in consequence of an industrial dispute the right to seek redressal of grievance was available to him under Section 12(3) of the Standing Orders Ordinance.
8. The word "workman" has been defined in Section 2(xxx) of the IRO as under:- "worker" and "workman" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity."
9. The definition as quoted above shows that the status of "workman" has a direct nexus with the status of an employer because "worker" or "workman" is a person who does not fall within the definition of "employer". It, therefore, would be relevant to reproduce the definition of "employer" as well which has been defined as under in Section 2 (x)of IRO:--- "2(x) "employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in an establishment under a contract of employment and includes:---
(a) an heir, successor or assign, as the case may be, of such person or body as aforesaid;
(b) any person responsible for the direction, administration, management and control of the establishment;
(c) the authority, in relation to an establishment or group of establishments run by or under the authority of any department of the Federal Government or a Provincial Government appointed in this behalf or, where no authority is appointed, the head of the department;
(d) the office bearer, in relation to an establishment run by or on behalf of a local authority, appointed in this behalf, or where no officer is so appointed, the chief executive office bearer of that authority;
(e) the proprietor, in relation to any other establishment, of such establishment and every director, manager, secretary, agent or office bearer or person concerned with the management of the affairs thereof;
(f) a contractor or an establishment of a contractor who or which undertakes to procure the labour or services of workmen for use by another person or in another establishment for any purpose whatsoever and for payment in any form and on any basis whatsoever; and
(g) office bearers of a department or Division of the Federal or Provincial or local authority who belong to the managerial, secretarial or directional cadre or categories of supervisors or agents and those who have been notified for this purpose in the official Gazette.
10. An employer essentially performs managerial and supervisory functions. As to the question whether a person is or is not a "workman" it is the settled law that the same would depend not upon his designation but on the nature of his duties mainly performed by him. The nomenclature of the post is not the determining factor in this behalf. The definition of "workman" contained in the Standing Orders Ordinance indicates two categories of persons who may be employed in an industrial or commercial establishment for manual or clerical work. Such person may be employed to do skilled or unskilled manual work or skilled or unskilled clerical job according to his assignment. It is, therefore, a question of fact to be determined on the basis of the evidence of the parties produced by them in a case. In the instant, case, as already stated, there is only the evidence of the respondent while the appellants had opted not to produce evidence. They rather relied upon the evidence of the respondent.
11. If a party to the litigation instead of producing his own evidence relies upon the evidence of the other party then it has to show that the averments of the oral and documentary evidence produced by the other party are in its favour otherwise the record will be consisting of only one- sided unrebutted evidence. On this touchstone the respondent fully established his case and the appellants have not been able to identify any thing therein which may lend support to their case.
12. In his statement the respondent has dilated upon the circumstances of his employment and beside their nature has also explained the mode and method of performance of his duties. He has stated that he was recruited as a "Purchaser" and has not denied that subsequently this post was re-designated, as a Purchase Manager but the details given by him show that in spite of the change of nomenclature of the post no difference occurred in the nature and the performance of the duties. The manual work he had been performing as Purchaser, he continued to perform even as Purchase Manager. Stock entries; the receipt and dispatch of the bills; tabulation of the material, it was all part of the duties of the Purchaser and it remained so even among the duties of a Purchase Manager.
13. These facts show that even if there was some rise in the pay or status of the respondent in terms of the nomenclature of the post, there was no substantial difference in the nature of the duties performed by him. Even if there was an elevation of his post the duties assigned to him as Purchase Manager also, if not the same, by nature were of the same type. Thus in case the Purchase Manager also performed manual and clerical functions the shifting of the respondent from the post of the Purchaser had no effect on his status as a "workman".
14. It is also in the evidence that he enjoyed no administrative privileges nor had any supervisory capacity in his functions. He remained subordinate to the same hierarchy and virtually had the old status of "workman". The mere fact that some of the entries in some Registers were not in his hand could not mean that he had been raised to the status of a Manager or a Supervisor especially when most of the entries were recorded in his hand. It is also pertinent that the appellant- establishment did not produced the complete original record in that behalf.
15. The mere fact that an employee has no power of hire and fire cannot mean that he is a "workman" because in many cases even a supervisor/administrator (who otherwise is not a "worker") may not have the power to hire and fire the subordinates. The power to hire and fire a subordinate may not be an integral part of a managerial or supervisory job but when an incumbent is vested with such power he shall inevitably fall in the supervisory or managerial category.
16. In this case the respondent was, however, divested of the both. He was neither manager or supervisor nor enjoyed the power to hire and fire.
17. Re-designation of the post may have a bearing on the determination of the status of a "Workman" only when it is followed by substantial changes, in the nature of the duties. The word "re-designation" as such does not find mention in the dictionary for the obvious reason that "re" is used so freely, especially with verbs that it is impossible for the .Dictionaries to include a full list of such verbs. However, meanings given to "re" in the Chambers 21st Century Dictionary are "again, or again and in a different way". This definition when applied to the facts of this case shows that the re-designation of the post of the respondent was only a fiction. It had ho practical effect at all on the duties or even practical status of the respondent except that a better nomenclature of designation was attached to him. Both in law and fact this re-designation of the post of the respondent did not imply elevation of the respondent to a higher managerial, administrative or supervisory post.
18. Same is the position regarding the contention of the appellants that as a result of re- organization the petitioner had become superfluous because if in the so-called process of re- organization the nature of the functions had not undergone any substantial change he could not be termed as superfluous. Computerization of the work also had no practical impact on the situation because it is in the unrebutted evidence that only one obsolete computer was available in the establishment which was not sufficient to cater the total requirements. Moreover, had this been the reason for ousting the respondent, a large number of employees could have become superfluous but the appellants have failed to produce any evidence to that effect. It is also in the evidence that in spite of acclaimed computerization the manual work was the basic operating source in the establishment. This fact is evident from the fact that various Registers were produced during the evidence to confront the respondent and it is no where in the evidence that computers had been introduced afterwards and for that reason the earlier system had become out-dated.
19. The appellants then contended that the respondent had attained the age of superannuation. He had become over 60 years of age and was, therefore, even otherwise liable to retirement. This seems to be a futile argument for two-fold reasons. Firstly, it is in the evidence that there were a number of. Other employees who were over and above the age of 60 years but were still working in the organization. The policy of the establishment for the retirement of the employees at the age of 60 years is, therefore, totally belied. Secondly, the reasons given by the appellant as suggestion to the respondent when he appeared as witness as well as the basis of termination of his service given in the impugned letter does not speak in terms of the age of superannuation of the respondent.
20. One of the most important piece of evidence which goes a long way to determine the controversy is the very impugned order dated 28.2.2006, the relevant part of which may be reproduced in the following: "Dear I am to inform you that your services are no more required by the Company and you are discharged from the services with effect from 28.2.2006, as found being surplus.
For ESCORTS PAKISTAN LIMITED GENERAL MANAGER (FINANCE)"
21. This was in clear violation of the requirements of the law. Standing Order 12(3) provides that the services of a "workman" shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. A bare perusal of the impugned order shows that it is totally devoid of reasons for termination of the service of the respondent, what to talk of explicit reasons. The contention that the words "services are no more required" coupled with the ending phrase "as found-being surplus" are sufficient to constitute reasons in explicit manner in accordance with Standing Order 12(3) is totally misconceived.
22. By virtue of Standing Order 12(3) for the purpose of removal etc. Of a "workman" there should be:
(1) an order in writing;
(2) the order must show the reasons for termination etc. And
(3) the reason for termination etc. Must be given explicitly.
The word "explicit" implies showing of a thing fully and clearly. The reason for termination etc. If not given clearly and fully it will not be explicit by any stretch of imagination. The phrase "services are no more required" or "as found being surplus" only connotes decision but not the reason for such decision. The reason is supposed to imply the statement of the facts and circumstances which might have weighed with an employer for the dispensation of the services 'of his employee. It is in fact a justification or motive for an action or belief and an underlying explanation or cause which leads a person to form an opinion and judgment or to reach at a logical conclusion. Simply to say that the services of an employee are no more required or that he has been found to be surplus is only a statement of the fact but it shall not constitute "reason" for arriving at such conclusion. Out of the series of judgments of the superior courts where such words i.e. "services no more required" or "found to be surplus" have been held to be not inconformity with the requirements of Standing Order 12(3), a few such as Muhammad Rauf v. M/s Makran Fisheries Ltd, and another (1981 SCMR631), Farooq Ahmed v. Delta Shipping Pvt. Ltd. (2006 PLC 102) and Aley Nabi and others v.
Chairman, Sindh Labour Court and another (1993 SCM R 322) can be quoted with benefit.
23. There is no doubt that in case of real re- organization of the administrative set-up the management has a right to terminate the services of employees on account of modernization, management, computerization etc. Etc. But such modernization/computerization/reorganization must be real and bona fide and if the employees are retrenched or removed etc. Only in the name of modernization and technically no substantial reorganization has taken place such actions are liable to be set at naught by the Courts. As "the appellants had not introduced any material or substantial changes or improvement in the organization nor had substantially computerized the establishment, the termination of the respondent was totally unjustified. His grievance petition was rightly accepted by the learned Trial Court.
24. For what has been discussed above, the appeal has no merit which is dismissed with costs. .