DECISION ' This appeal by the Management is directed against the decision given by the learned First Labour Court, on 22-1-1980, directing the re-instatement of the respondent-workman with full back benefits.
2. Mr. Masud Mirza, the learned Representative for the Asiatic Shipping Agencies Ltd., the appellant herein, has assailed the impugned decision of the learned Labour Court on three grounds. The learned Representative contended that the Standing Orders are not applicable to the establishment of the appellants and consequently the mere fact that the services of the respondent-workman were terminated without complying with the provisions of Standing Order 12 gave no right to the respondent-workman to challenge the termination of his services by way of a grievance petition under section 25-A, I. R.
0. The learned Representative sought to contend that the number of workmen in the appellant- establishment during the twelve months immediately preceding the termination of services of the respondent-workman had throughout been less than twenty. It may be pointed out that the services of the respondent-workman had been terminated with effect from 15-2-1977, vide letter of the appellant-Company, dated 14-2-1977. We are, therefore, concerned with the period from 16-2- 1976 up to 15-2-1977, for the purposes of ascertaining whether at any time during this period the appellant-Company employed 20 or more workmen. It has been found by the learned Labour Court that the number of workmen employed in the appellant-Company during the month of May, 1976, exceeded twenty-one. It was also of the opinion that in the months of March and April, 1976, the number of workmen employed in the appellant-Company was not less than twenty. In coming to this conclusion the learned Labour Court mainly relied upon the attendance register maintained by the appellant-Company. The entries in this register for the month of May, 1976, show the number of employees in the appellant-Company as thirty. It was, hoWever, asserted by Mr. Sabir Banatwala, a Director in the appellant-Company, that out of these thirty employees, nine were Executives, that similarly Abdul Majeed, the Finance Manager, cannot be considered to be a workman, as he was drawing a salary of Rs, 2,000 p. m., and that Javaid Akhtar did not work in the appellant-Company for the whole of the said month. It is, however, not possible to place reliance on his evidence, what we are concerned with is not whether the number of workmen during a particular month exceeded nineteen but whether on any particular day the number of workmen employed was not less than twenty. Furthermore, it is not possible to accept his assertion that ten of the employees, whose names appear in the attendance register for the month of May, 1976, are all Executives. Among the list of the Executives are S. H. Abbas, Chief Accountant and S. H. Sulaiman, Secretary, and there was not only a Finance Executive but also a Finance Manager in the appellant-Company whose name appears in the appellant's register for the month of May, 1976. It would appear that the Chief Accountant was working under these two Executives. It is also not clear from the record what work he was required to perform. As such, the reasonable possibility of his doing substantially clerical work cannot be excluded. It was up to the appellant-Company, which was raising the plea that the Chief Accountant was not a workman but an Executive, to establish A that the nature of his duties were not clerical. This they have failed to do. I am, therefore, of the opinion that the Chief Accountant is to be deemed to be a workman for the purposes of Standing Orders. I am fortified in my viewby the decision of the Karachi High Court reported as Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani. The view taken in that case that the Chief Accountant of Dost Muhammad Cotton Mills was a workman was held by their Lordships of the Supreme Court. I am further of the view that the Secretary S. H. Sulaiman, is also to be deemed to be a workman for the purposes of Standing Orders. It has been admitted by Mr. Sabir Banatwala that Mr. Sulaiman was also doing shorthand work. As such, he clearly was performing clerical duties and, thus, is a workman for the purposes of Standing Orders. It is not possible to exclude Younus Ismail from the number of workmen employed by the appellant-Company in the month of May particularly on the 1st of May, 1976, as it was conceded by Mr. Sabir Banatwala that the services of Younus Ismail had been terminated with effect from 2-5-1976. Additionally, Mr. Sabir Banatwala has admitted that the appellant-Company was employing a sweeper whose name does not appear in the attendance register as he was paid through vouchers. It is also not possible to exclude Javaid Akhtar Khan, the Assistant Accountant, from the number of workmen employed by the appellant-Company during the month of May, 1976, merely by reason of the fact that he was on privilege leave for the whole of the month and did not attend to his duties. It is clear from the attendance register itself that his services were terminated with effect from 1-7-1976. As such, he continued to be in the employment of the appellant-Company till that date. The position that emerges is that if from the total of 31 employees working in the appellant-Company in the month of May, 1976, which number includes the sweeper paid by means of vouchers, we exclude eight Executives, including Finance Manager Abdul Majeed, and two more employees, namely Shaaban Ali, Accountant-cum-Shipping Assistant, who was engaged on 21-5-1976, and Peon Shah Zaman, who joined the appellant-Company with effect from 25-5-1976, there will still be twenty-one workmen in the appellant-Company as on 1-5-1976. Consequently, the Standing Orders would clearly be applicable to the appellant-Company, on the basis of the appellant Company's own record and evidence.
3. It was next submitted by Mr. Masud Mirza that inasmuch as the services of the respondent- workman were not terminated with any stigma but as this was a case of termination of services simpliciter, the appellant-Company was not required, even if it be held that the Standing Orders are applicable to it, to follow the disciplinary procedure prescribed in Standing Order 15, as has1 been wrongly held by the learned Labour Court. While 1 agree with this contention of the learned Representative, it is clear that the appellant-Company has failed to comply even with the requirements of Standing Order 12 while terminating the services of the respondent. The said Order lays down three conditions for terminating the services of a permanent workman. They are, firstly, that the workman is to be given one month's notice or pay in lieu of notice, secondly, that the order terminating his services must be in writing and thirdly, that the order itself must state the reason for terminating his service. It is an admitted position that the order terminating the services of the respondent workman does not give the reasons for passing the said Order. As such, there has been non-compliance with an essential requirement for terminating the services of the respondent.
Consequently, the order of the appellant-Company terminating the services of the respondent- workman is invaild and has to be set aside, as held by the learned Labour Court.
4. It was finally contended by Mr. Masud Mirza that since the respondent had not established that his services had been terminated by the appellant-Company mala fide, and that on the contrary, as is clear from the letter, dated 14-2-1976, this is a case of termination of service simpliciter, the circumstances of the case do not justify the award of full back benefits to the respondent- workman. I regret that I find no substance in this contention. Where the services of a workman are terminated without following the requirements of the law, full back benefits should ordinarily be awarded to the workman as in the instant case, however, if the workman has been in employment elsewhere for any part of the period during which he claims back benefits, then the emoluments received by him eslewhere should be deducted from the back benefits awarded to him. The respondent-workman admitted before this Tribunal that he was in employment in the Ocean Shipping Agencies since 1-10-1979 on total emoluments of Rs, 1,500 p. m. Consequently, from the back benefits awarded to the respondent-workman, the amount of wages received by him from the Ocean Shipping Agencies should be deducted.
5. With the above modification, I would concur in the view taken by the learned Labour Court and dismiss this appeal.
PLD 1975 Kat. 342