' ABDUL GHIAS NOUSHERWANI (MEMBER).--- The appellants/respondents challenge the order dated 29-8-2008 passed by Learned District and Session Judge 1st Labour Court Balochistan in Case No 6 of 2008 Wherein the grievance petition of respondent/applicant was accepted for reinstatement in his service.
2. The applicant/respondent was performing his duties as cash operation officer on contract basis.
After completion of 2 months training at Quetta he was posted in Habib Bank Limited Loralai Branch. In meanwhile the applicant was remained absent in response to which he was issued a letter dated 4-9-2006 from respondent No 1 in which the applicant was declared as absent. The same was replied with clarification that applicant applied for leave. The reply of applicant was considered unsatisfactory. Consequently applicant was terminated from service on 31-10-2006. On 8-11-2006 applicant preferred an appeal against his termination order which was verbally rejected.
Thereafter move grievance application before the Learned Labour Court for redressal of his grievance.
3. After issuance of notice respondent filed their reply wherein the application was contested on legal as well as factual grounds. Necessary proceedings by means of framing issue, recording evidence and hearing the counsel for the parties accepted the grievance application by means of concluding findings as under:--- "Thus in view of the fore mentioned discussion on issues, observation and legal position emerges no proper inquiry nor any official or legal proceedings has been conducted in the case of applicant, therefore, I am inclined to accept the under reference grievance application filed by applicant Mir Behram Baloch against his termination order by setting aside the same being illegal and the respondents are directed to reinstate the applicant, in service. With this, the under reference case is disposed of herewith"
4. The learned counsel for appellant contended that the respondent was appointed as cash operation officer who does not fall within the definition of workman and the Learned Labour Court wrongly exercised its jurisdiction. Secondly contended that he remained absent for 40 days whereof he was terminated and no leave was available to him at that period of his service. Lastly contended that grievance application was time barred. On the other hand the learned counsel for respondent contended that under 5.0.15 of Standing Order Ordinance he has not committed wilful absence for the reason that due to illness of his mother he applied for 10 days leave but no intimation received about acceptance or rejection of his leave application. He contended that due to illness of his mother and death of grandmother he again applied for extension of leave. Next contended that the applicant/respondent was terminated without show cause notice and inquiry.
The termination order in view of Standing Order Ordinance is void against which no limitation run.
However he contended that an application along with grievance application for condonation of delay has been filed though the Learned Labour Court has not mentioned about the application but accepted the grievance application meaning thereby the application for condonation of delay had been allowed.
5. The first contention of learned counsel that the applicant/ respondent was appointed as cash operation officer who does not fall within the category of workman. The definition of workman and worker is defined under section 2(DD) of BIRA, 2010 which is reproduced as under: --- "2(DD) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through contractor whether the terms of employment expressed or implied, and for the purpose of any proceedings under this act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or c lerwise removed from employment in connection with or as a consequences 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 managerial or administrative capacity"
6. Moreover in S.O.1(b)(A) of Standing Orders Ordinance while classifying of the category of workman the definition of permanent workman given as under:- "Permanent workman is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of 3 months in the same or another occupation in the industrial or commercial establishment including breaks due to sickness, accident, leave, lockout strike (not being an illegal lockout or strike) or involuntarily closure of the establishment [and includes a badli who has been employed for a continuous period of 3 months or for 183 days during any period of 12 consecutive months]"
7. The learned counsel for appellants referred a reported Judgment 1985 SCM R 1511, wherein held:- ""Workman"---Definition---Bank employee appointed as an accountant---Power of attorney executed in favour of such employee by bank showing that powers conferred on and functions thereby required to be performed by employee could neither be termed as manual nor clerical work and involved exercise of discretion and taking of important decisions---Such employee also given in clear and unambiguous words power to manage some of affairs of bank with number of powers which he could exercise by himself or jointly with other attorneys of bank which could by no means be said to be manual or clerical in nature---Such employees of bank held, was not a "workman" within the meaning of section 2 of Ordinance"
In view of this authority employee was appointed as accountant and he was authorised for decision and managing of some affairs of bank by means of power of attorney. But in case in hand position is quite different for the reasons that appointment letter indicates that applicant/respondent was appointed as cash/operation officer on contract with the salary of Rs,12000 per month. The offer/appointment letter does not indicate that what were the duties of applicant/respondent being an operations officer, nor he was given any power of attorney. The learned counsel for appellant further referred a reported Judgment in PLD 1986 Supreme Court 103 wherein definition of worker according to classification of Standing Order explained, however the main principle about the definition of worker is observed as under:--- "The test for determining the question whether an employee is a workman within the meaning of various status in the field of Labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical-Before the definition is attracted"
In view of above referred authority conclusion can be drawn that whether an employee is a supervisor and poses controlling powers merely a negative test of workman which cannot be conclusive. The principle for determination the position of workman according to the Judgments of superior Courts is a question of fact at best one mixed fact and law. In other words the designation of a workman is not conclusive but nature of work is the main factor for determination which can be based on the evidence produced by the party. Before examination of evidence another reported judgment in 2003 SCM R 678 referred by learned counsel required consideration with regard to absence wherein held:--- "Rules 3, 4 absence from duty would be intentional when accused civil servant facing murder case did not join duty after his release on bail. His removal from duty on charge of absence from duty would be unquestionable. Supreme Court upholding Judgment of Service Tribunal dismissed appeal filed to challenge removal from service in such case"
' In this authority the employee was involved in a murder case and after his release on bail he did not join duty. In the case in hand position is quite different for the reason that on 15-8-2006 the appellant/respondent submitted an application for 10 days leave where after on 22-9-2006 he gave his duty report therefore this authority does not support the contention of appellant.
8. The applicant/respond appeared himself and narrated the contents and claim of his grievance application. In cross-examination he stated that when he joined he was M.Com. Qualification as cash operation officer on contract with salary of Rs,11900. In reply to a question he stated that he was working on cash counter of the branch. Further stated that on 8-11-2006 he submitted an appeal to higher authorities which was not responded by authority. The representative of bank namely Allah Noor Tareen in his affidavit stated that the applicant/respondent was appointed as cash operation officer on contract after officer training of 2 months. Further stated that he remained unauthorized absence from 15-8-2006 to 21-9-2006. In cross-examination he expresses his ignorance that whether the absence of applicant/ respondent was intentional or otherwise. He admitted that Behram Baloch was not in executive cadder. He further admitted that Bahram Baloch neither could appoint any employee nor terminate any employee. Again he admitted that Mir Bahram Baloch neither could grant leave to any employee nor authorised to grant loan to any employee.
9. In view of above evidence nothing came on record that applicant/respondent was performing his duty as an executive officer having control over the administration of bank. It is very surprising that no such suggestion had been put to him during the cross-examination nor any contents was specially denied. The representative of bank in cross-examination clearly stated,
10. {{ URDU TEXT }} 'Respondent had no power of hire and fire. Furthermore nothing brought on record by the respondents/appellants about the nature of duty of operation officer. Therefore the contention of learned counsel for appellant that applicant/respondent is not a worker is overruled.
11. Coming to the point of limitation the available record reveals that after his termination on 8-11- 2006 he submitted application/ representation against his termination order dated 31-10-2006 which according to applicant/respondent was not responded but verbally he was told that his application/representation was rejected in the first week of April and thereafter on 19-4-2007 he filed grievance application. According to applicant/respondent he was informed verbally about the rejection of his appeal thereafter within a weak he filed grievance application. This fact neither denied by appellant/respondent nor rebutted in any manner and no material brought on record against the plea of applicant/respondent. Even otherwise along with grievance application an 'application for condo nation of delay also filed but perhaps the same has been over looked by the Learned Labour Court.
11. Apart from above material and discussion the learned counsel for applicant/respondent contended that termination order dated 31-10-2006 is void order against which no limitation can run. However it will be examined in relevant Paragraph. The termination order dated 31-10-2006 which indicates that out of four months the applicant/respondent has been practically absent for more than a month on one pretext or another which shows his causal attitude towards work and is an offence according to the letter of contract clause 5 of offer of job contract which is reproduced as under:--- "Should your cumulative contractual service period with PES extend beyond 12 months you will be entitled to 15 days earned leave upon completion of the first 12 months. The above entitlement will be governed by PES leave policy rules"
' According to S.0.8(2) of Standing Order Ordinance, "A workman who desires to obtain leave of absence shall apply to the employer, who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commence on the date of the application or within three days thereof, the order shall be given on the same day. If the leave asked for is granted, a leave pass shall be issued to the workman. If the leave is refused or postponed, the fact of such postponement or refusal and the reasons therefor shall be recorded in writing in a register to be maintained for the purpose, and if the workman so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the employer who shall send a written reply either granting or refusing extension of leave to the workman if his address is available and if such reply is likely to reach him before the expiry of the leave originally granted to him"
' The above quoted Rule of leave has been explained in reported judgments 1991 PLC 528 which is reproduced as under:--- "[By virtue of S.O. 8 and as provided for in Chapter IV-A of the Factories Act, 1934 (XXV of 1934), workman in an establishment is allowed fourteen days annual holidays with pay, ten days causal leave with pay, sixteen days sick leave on half pay and all the festival holidays with pay declared by the Federal or Provincial Government. Besides, all other holidays according to law, contract, custom and usage must also be allowed, which may be decided on the basis of facts and circumstances of individual cases. Prior sanction or extension of any kind of leave is a mandatory, except in case of an emergency."
' Naturally the right and privileges of worker/workman governed under Labour Laws which have been reproduced hereinabove with explanation in reported Judgment wherein expressly concluded except in case of emergency. According to applicant/respondent in his first application requested for 10 days leave that his mother was sick and advised for treatment at Karachi with explanation that his younger brother was out of country and again explained that during of illness of his mother his grandmother was expired and this fact has not been denied by appellant/respondent in anywhere. So the case of applicant/respondent covered under an emergency.
12. Again reverting with regard to termination order dated 31-10-2006 only a letter dated 4-9-2006 was issued under reference unauthorised absence from duty as reproduced hereinbelow:--- "It has been reported by our client, where your services are deputed that you were absent from duty without any prior intimation or approval from 13 August 2006 to date."
' In reply the applicant/respondent submitted explanation dated 7-9-2006 which is reproduced as under:--- "It is stated that I have applied for leave as per the rules from my services. Starting from 15th August 2006 as 13th was Sunday and 14th was a national holiday. The copies of my application are attached with letter along with courier receipt. And I have not received any letter informing me about the non-approval of my leave. I have informed you about my problems in a telephonic conversation on. 28th August, 2006 and you acknowledged me about receiving my application. Sir at this difficult time I need accommodating stance and plea you to reassess my case. I can provide you with auxiliary evidence on the case at your request."
' But without considering the above mentioned explanation he was terminated by means of order dated 31-10-2006.
13. S.0.12(1) under heading termination of Employment states:- "For terminating Employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last 3 months shall be paid in lieu of notice."
In view of above rule the services of permanent or temporary w.Orkman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15. Under Standing Order 12 contained in the scheduled to the West Pakistan Standing Order Ordinance No,VI of 1968, certain restrictions are placed on the employers. Regarding termination of service of workman employed in their establishments and the manner for termination of employment has also been laid down. Under clause (5) of Standing Order 12, it is provided that services of permanent or temporary workman shall not be terminated on the ground of misconduct otherwise in the manner prescribed in Standing Order 15. Standing Order 15 relates to punishment which can be given to workman and also defines the misconduct.
14. In view of above discussion with regard to S.Os. 12 and 15 of Standing Order Ordinance the contention of learned counsel for appellant/respondent that the employee was terminated under the condition of his offer/appointment letter is not sustainable under above settled law. Section 15(4) of Standing Order Ordinance it is mandatory that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes in the notice of employer and is given opportunity to explain the circumstances alleged against him. It is further provided that approval of the employer is required in every case of dismissal of the employee shall institute independent inquiries before dealing with charges against a workman. Admittedly no inquiry was conducted and applicant/ respondent condemned unheard which is against the mandatory provision of law. In such situation where above mentioned law has not been applied and summarily action has been taken is illegal and void. Even otherwise such punishment is not reasonable.
15. Reverting to the point of limitation discussed in Para supra it is further supplemented that termination order dated 31-10-2006 declared void no limitation run against such order
16. In the light of above quoted law, cited authorities, evidence and discussion I see no force in appeal. However the order impugned dated 29-8-2008 passed by Learned District and Session Judge 1st Labour Court Balochistan in Case No,6 of 2008 is upheld with modification that the period of absence of applicant/respondent (40 days) be treated without pay. Consequently appeal is dismissed with no order as to cost.
17. The copy of order along with original record of trial court is sent to trial court. Case after completion be consigned to record.