DECISION ' The respondent joined the National Shipping Corporation, which was subsequently amalgamated in a joint organization, known as the Pakistan National Shipping Corporation, established under Ordinance XX of 1979, as a Deck Cadet in 1971. It appears that in the course of time he rose to the rank of Third Officer. His services stood terminated with effect from 27th November, 1977, vide the letter of the N. S. C., dated 3rd December, 1977. The ground for the termination of the respondent's services, as appears from that letter, was his failure to report for duty on the expiry of the extended leave which the respondent had availed of. The above letter was followed by another letter, dated 13th March, 1978, whereby notice was given to the respondent under Regulation 11 of the Established Officers Service Regulations regarding termination of his services with effect from the expiry of the notice period. Two more letters were addressed by the N. S. C. To the respondent, one dated 25th March, 1978, and the other dated 10th April, 1978. By the first letter, the respondent was informed that the notice period of three months commenced from 6th February, 1978 and he would be released from the services of the Corporation on the expiry of the notice period with effect from 5th May, 1978. By the subsequent letter, he was informed that the notice period for the termination of his services commenced from 13th March, 1978 in accordance with Regulation 11(a) and that accordingly the period of notice would mature on 12th June, 1978. Aggrieved by the termination of his services and no action having been taken by the management on his representations to re- consider the decision the respondent filed a grievance petition to the learned Labour Court, which by its first order, dated 22nd August, 1979, dismissed the same on the preliminary objection raised by the appellant-Corporation that the grievance petition was not maintainable as the respondent was not a workman for the purposes of the I. R. O., which in any case was not applicable to the employees of the Pakistan National Shipping Corporation. On appeal by the respondent, this Tribunal remanded the case to the learned Labour Court with direction to give a fresh decision after affording an opportunity to both the parties to lead evidence in regard to the nature of duties which the respondent was required to perform as Third Officer in the appellant-Corporation.
Accordingly, on the basis of the evidence recorded by it in this behalf, the learned Labour Court has come to the conclusion that the respondent was a workman for the purposes of the Standing Orders and that the termination of his services was in violation of the said Orders. It accordingly has set aside the termination order in respect of the respondent and directed the appellant- Corporation to reinstate him in service but at the same time has given an option to the appellant- Corporation to hold a domestic enquiry against him in accordance with the law and has made the award of the back benefits to him dependent upon the result of' such enquiry. Against this decision the appellant-Corporation has come up in appeal to this Tribunal.
2. I have beard Mr. Hamid Hussain, the learned counsel for the Corporation, and Mr. Shakiel Lari, who appeared for the respondent Officer. Mr. Hamid Hussain asailed the impugned decision of the learned Labour Court of two counts, namely :-
(i) that even &it is assumed that the Standing Order are applicable to the employment of the respondent the services of the respondent were terminated in accordance with law and no sufficient ground for interference had been made out ;
(ii) that the evidence on record establishes that the appellant is not a workman for the purposes of the Standing Orders, as he was not required to do any manual or clerical duties and hence he was not entitled to file or maintain a grievance petition against the termination of his services.
' In support of his first contention, Mr. Hamid Hussain submitted that there are two categories of persons employed in the appellant-Corporation on seagoing ships, the first known as Established Officers, who are governed by the National Shipping Corporation (Established Officers) Service Regulations, 1965, and the second category known as General Employees, who are governed by the General Service Regulation of 1965. Mr. Hamid Hussain contended that the respondent, being a Third Officer on a Ship, was an Established Officer and consequently the Established Officers Regulations, 1965, would apply to him. In support of his contention the learned counsel relied upon the definition of "established officer" as given in the said Regulations. The said definition reads as follows :- "Established Officer" shall mean a seagoing Officer, who holds a Certificate of Competency Service either as Master or 1st Mate (F. G.) or 2nd Mate (F. G.) or as 1st Class or 2nd Class Engineer (Combined) or has rendered not less than six months' sea service with the Corporation and has been accepted as such by the Corporation."
3. It will be seen that the above definition is in three parts. The first and the second parts of the definition obviously do not apply to the respondent as admittedly be does not hold a certificate of competency/ service either as Master or 1st Mate or 2nd Mate nor does he hold a Certificate of Competency/Service as First Class or Second Class Engineer. It was however, sought to be argued by Mr. Hamid Hussain that as the respondent had admitted rendered not less than six months' sea service with the Corporation and had been accepted as an Established Officer by the Corporation he is deemed to be an Established Officer for the purposes of the Regulations, which would accordingly apply to him. The learned counsel was, however, unable to point out to me any evidence on record showing that the respondent has been accepted as an Established Officer beyond the fact that he had been promoted as a Third Officer and was drawing the pay of such an officer. No doubt Chapter V of the Established Officers Service Regulations specifies the pay structure of various seagoing officers, including the Third Officers and Deck Cadets, but from this fact alone it cannot be presumed that all these officers, unless they have been accepted as Established Officers by the appellant corporation, are to be deemed to be Established Officers to whom the Regulations apply. As such, notwithstanding the fact that the respondent was a Third Officer and drawing the pay of such Officer, as provide in the Established Officers Service Regulations, I am unable to hold that the respondent was an Established Officer, since there is no firm evidence on record that he had been accepted as such by the appellant-Corporation. It may be pointed out that the respondent in his lengthy correspondence with the appellant-Corporation has consistently disputed the position that the Regulations in question apply to him. Moreover, though the Regulations appear to have been approved by the Board of Directors of the N. S. C. It is not clear under which provision of law the said Regulations have been framed.
4. Assuming for argument sake that the Established Officers Service Regulations, 1965, were applicable to the respondent, it is clear that the appellant corporation misconceived the legal position in taking up the stand that his services had been terminated under Regulation 11 (a), as pointed out by the learned Labour Court in its impugned decision. The said Regulation is applicable to resignation from service. No doubt as pointed out by Mr. Hamid Hussain, it was permissible for the appellant corporation under Regulation 9 to terminate the services of an Established Officer, and further there is no dispute on the legal proposition that mere wrong mention of a provision of law does not make the action taken invalid if it is in accordance with the law but even if the action in the instant case could be deemed to have been taken under Regulation 9, as contended by Mr. Hamid Hussain. The question that will have to be considered, if the respondent is found to be a workman for the purposes of the Standing Orders, whether this was a bona fide termination of services or a colourable exercise of powers and the learned Labour Court was entitled under the provision of clause (3) of Standing Order 12 read with section 25-A, I. R.0., to go behind the order. A bare perusal of the first order of termination, dated 3rd December, 1977, clearly indicates that the termination order was issued in consequence of the failure on the part of the respondent to report for duty on the expiry of his extended leave. As such, the termination was on account of an act of misconduct for remaining absent from duty without leave. If, therefore, the Standing Orders apply to the respondent, action against him should have been taken in accordance with Standing Order 15.
5. This brings me to consideration of the second issue in the case, namely whether the respondent is a workman for the purposes of the Standing Orders and is entitled to file a grievance petition under clause (3) of Standing Order 12 read with section 25.A, I. R.0. A person is to be deemed to be a workman for the purposes of the Standing Orders only if he is employed to perform manual or clerical work, whether skilled or unskilled. It is, therefore necessary to examine the nature of duties for which the respondent was employed.
6. Since the appellant corporation had raised a preliminary objection that the respondent was not a workman for the purposes of the Standing Orders the burden of establishing that he fell within the definition of workman as given in the said Orders was upon the respondent. In his evidence before the learned Labour Court the respondent has not specified the nature of the duties for which he was employed, but has merely asserted that he was a workman, that the nature of his job was manual and that he was required only to follow the instructions of the Captain of the Ship In which he was serving. On the other hand, witness Nomani, Assistant Marine Superintendent in the appellant-Corporation, has given details of the duties which were required to be performed by the respondent as Third Officer. In his evidence he has stated as follows "The N. S. C. Follows the Merchant Shipping Act, 1923 corrected upto date. The IIIrd Officer keeps watch from 8.00 a. m. To 12-00 a. m. And from 8-00 p. m. To 12-00 p. m. When the vessel is steering at sea. During this time he controls three members of the crew one of whom is called quarter master and mans over the vessel by steering wheel. The other two persons who may be either cadets or sea men remain posted for look out duties. If during this time there is some danger to ship, the II1rd Officer informs the Master who takes over the ship from the former. When ship comes on the berth for loading and unloading of cargo the IIIrd Officer is required to keep watch from 5-00 p. m. To 9-00 a. m. On alternate days. During this period there are about 17 to 20 persons working under him besides the shore labour. Master is in total command of the vessel whether it is on sea or on shore but during the watch pariod IIIrd Officer is responsible for his watch. Master deputes an Officer to keep the watch on the vessel but it is according to the International Regulation. The job description stated above is strictly in accordance with the Merchant Shipping Act. It is not correct that IIIrd Officer performs his duties under the instructions of the Master. If during his watch the IIIrd Officer finds that cargo in the hold has left its place, he has to correct the same. Since the IIIrd Officer cannot leave the bridge he has to order the sea men to correct the hold of the cargo. It is not correct that the IIIrd Officer is steering the ship. 111rd Officer has no hiring and firing powers. In the event of firing he has to report to the Master of the Ship."
' An examination of the above evidence shows that the main duty of the IIIrd Officer is to keep watch. It cannot be disputed that the job of the Watch Officer is a very important and delicate one as presumably the safety of the vessel depends upon his efficiency in performing his job. No doubt, the Master of the vessel is at all times in total command but it is mainly from the Watch Officer that he learns about any external danger to his ship. Keeping watch on a ship obviously involves no work of manual or clerical nature. Moreover, the Third Officer as Watch Officer has under him not only the quarter master, who steers the ship but also two look out men who may be cadets or sea men. The IIIrd Officer is required to keep watch not only when the ship is sailing but he is also required to keep watch when the ship is berthed and is loading and unloading cargo. During this period, as appears from the evidence of witness Nomani, 17 to 20 persons work under him besides the shore labour. Again the nature of the duties cannot be termed as either manual or clerical. No doubt, it is a part of duties of the IIIrd Officer, while the loading and unloading operations are in progress, to take protective measures when any cargo has left its place or becomes loose but as explained by witness Nomani, the IIIrd Officer is not required to perform this work himself, as he cannot leave the bridge, but has to give directions to the seamen to take the necessary corrective measures.
7. The learned Labour Court had laid great stress on the fact that the respondent had no hiring and firing powers and that he was at all times under the command of the Master, but these two circumstances do not detract from the fact that the respondent as lIlrd Officer was not required or employed to perform any manual or clerical work. It has been observed by their Lordships of the Supreme Court in the case of Talat Farooq v. Mls. Choloride (Pakistan) Ltd., decided on 21st September, 1976, that a person cannot be deemed to be a workman merely because he may be working under some one else for after all even a General Manager of the Company has to work under the Directors of the Company. The fact that a person has no hiring or firing powers may be important for the purposes of determining whether he is workman for the purposes of the I. R.0. But this circumstance would not be very material for the purposes of determining whether such person is a workman for the purposes of' the Standing Orders, as the essential requirement of a workman under the said Orders is that he should be employed to do manual or clerical work. Since by reason of the termination of his services, which was neither on account of nor had led to an industrial dispute, the respondent had ceased to be an employee of the appellant-Corporation, he cannot be deemed to be a worker for the purposes of the I. R.0. And he could only be entitled to maintain a grievance petition under clause (3) of Standing Order 12 if he was a workman for the purposes of the Standing Orders, as held by this Tribunal in the case of Johnson & Johnson v. Zubair Ahmed. As I have held that the respondent does not fall within the definition of workman for the purposes of the Standing Orders, his grievance petition is clearly not maintainable. I would, accordingly, set aside the decision of the learned Labour Court and allow the appeal.1