This is a petition filed under Section 33 of IRA 2012 read with Industrial and Commercial (Standing Orders) Ordinance, 1968 by the petitioner for setting aside the termination order dated 28-02-2014 and for his reinstatement in service.
2. Brief facts leading to this case are that the petitioner was initially appointed as Computer Operator in the respondents establishment in the year, 2004 on .contract basis and he was regularized as Supervisor in the year, 2006. Thereafter, the petitioner was promoted as Assistant Manager in the year, 2012 vide office order dated 13-12-2012. It is further stated that the petitioner was performing manual and clerical job in the respondents establishment. The Respondent No, 2 vide Office Order dated 28-02-2014, at the behest of Respondent No, I illegally and unlawfully terminated the services of the petitioner with immediate effect under Clause 31.1 of PRAL Service Rules, 1998 without assigning any reason or giving any opportunity of hearing or defence which is violation of mandatory statutory provisions of law. It is also stated that the termination letter is against Rule 31.2 of PRAL Service Rules, 1998 and moreover there was no any reduction in work load nor the PRAL is facing any financial crises, therefore termination order has been passed without any justification. It is further stated that the respondents have also advertised for fresh appointment, on large scale basis by mere changing the nomenclature of the posts which clearly indicates that termination order is based on mala fide and result of personnel grudge. The petitioner was senior most in his cadre and he was terminated from service, although as per law the principle of first come last go was also not adhered in case of petitioner. Petitioner served the grievance notice and then flied the instant grievance petition. The grievance petition is contested by the respondents by filing written statement wherein preliminary objection regarding non-maintainability of the petition has been taken on the ground that the petitioner is not a workman and moreover the relationship Master & , Servant is applicable to the case of the petitioner. It is further stated that as per rule 31.1 of PRAL Service Rules, 1998, the service of confirmed employee can be terminated by the company subject to Rules 31.2 of PRAL Service Rules, 1998 by giving him 90 days notice in 'writing or payment of a sum equal to the salary for that period. On facts, it is stated that the petitioner was working in a Supervisory and Managerial position since 2006 having control over issues like leaves/short leaves etc of the employees, therefore cannot be treated as workman by any stretch of imagination. He was initially appointed as Computer Operator but he was lastly appointed as Supervisor and Assistant Manager. The show-cause notice and charge sheet are served against the petitioner, which is a requirement when departmental proceedings are initiated against an employee under the Efficiency and Discipline Rules of the company. The Rules 31.1 of PRAL Service Rules, 1998 authorized the employer to terminate simpliciter of an employee, by giving him 90 days notice or salary in lieu. It is further stated that the petitioner has been terminated from service in accordance with law.
3. Petitioner himself appeared as PW/1 and tendered his affidavit-in-evidence Exhibit P/1, copy f order dated 28-02-2014 Exhibit P/2, copy of online demand for recruitment given by the respondent Exhibit P/3, copy of office order dated 13-12-2012 Exhibit P14, copy of grievance notice Exhibit P/5, postal receipts Exhibit P/6, copy of order dated 20-11-2014 in Writ Petition No, 967/12 Exhibit P/7, copy of service rules Exhibit P/8, copy of promotion order dated 05-102012 Exhibit P/9 and copy of termination order dated 25-02-2014 Exhibit P/10.
4. On behalf of respondents, Barkat All Chaudhry, Senior Manager (Admin & HR) PEAL Islamabad appeared as RW/1 and tendered his affidavit in evidence Exhibit R/1, office order dated 19-052008 Exhibit R/2, appointment letter dated 07-05-2008 Exhibit R/3, office order dated 09-10-2012 Exhibit R/4, office order dated 13.12.2012 Exhibit R/5, Al-Khair University Certificate Exhibit. R/6, Job Description of AM Exhibit R/7, email dated 14-10-2013 Exhibit R/8, warning letter, dated 18-02-2014 Exhibit R/9, email dated 21-01-2014 Exhibit R/10, email dated 23-01-2014 Exhibit R/11, email dated 18,02.2012 Exhibit R/12 and office order dated 28-02.2014 Exhibit R/13.
5. Contention of learned counsel for the petitioner is that the petitioner has Specifcally stated in his grievance petition as well as his affidavit-in-evidence that he was performing duties which were manual and clerical in nature, therefore he is a workman; that the witness who appeared on behalf of respondents has also admitted that the petitioner was not having power of hire and fire; that the service of petitioner was terminated without any reason, just being no more longer require; that there is no reduction in work load nor company is facing any financial crises; that soon after the termination of the petitioner, the respondents got published advertisement for new recruitment including all the work which was done by the petitioner, which clearly indicates that petitioner was not surplus; that even otherwise, the petitioner was senior most in his cadre and principle of first come last go was also not adhered; that even Rule 31.2 of PRAL Service Rules, 1998 has been violated; that written statement has not been filed by the respondents nor the respondents have authorized RW/1 to make statement on their behalf, therefore, neither the statement of RW/1 be considered nor the evidence of RW/1 can be taken into consideration. in supra in of his arguments, the learned counsel for the petitioner has relied upon 2009 PLC 50(b)(d) &, (0, 1990 PLC 45%, 2006 PLC 102, 199: SCMR 322, 1996 PLC 118, 2012 PLC 290, 2011 PLC (CS) .1553, 1992 SCMR 505, 2009 CLC 966 and 1991 SCMR 2087.
6. Conversely, the learned counsel for the respondents has argued that the petitioner is degree holder of MBA and was worked at very responsible. managerial post in the company as Assistant Manager; that as per job description of the petitioner which is available as Exhibi:; R/7, it cannot be said that the petitioner was performing manual and clerical job; that the warning letter issued by the petitioner to the subordinate is as Exhibit R/8 and the mails of the petitioners are available on record as Exhibit R/9, Exhibit R/10 & Exhibit R/11 whereby he has granted leave; that service of the petitioner has been terminated under Rule 31.1 of PRA", Service Rules, 1998. as employer has a right to terminate even the confirm employee without giving any reason by giving 90 days notice in writing order in lieu thereof by paying of salary at that period; that the petitioner filed writ petition before Hon'ble Islamabad High. Court Islamabad and during the pendency of writ petition, has filed this grievance petition; that even otherwise, as per advertisement which is available on record as Exhibit P/3, the petitioner himself admitted that he was performing duties of Business Analyst/ System Analyst, that in the said advertisement, the functions and duties of Business Analyst/ System. Analyst aria mentioned which clearly indicate that the petitioner was not doing manual and clerical work and infact he was professional and highly qualified person to perform technical work which we assigned to him; that the petitioner has not stated single word in his grievance petition regarding his duties which were manual or clerical and were being performed by petitioner; that the petitioner has stated in general that he was performing manual or clerical duties without specifically stating the same. In support of his arguments, the learned counsel for the respondents has relied upon 1997 PLC (C.S) 921, 1.970 PLC (C;S) 144, 2013 PLC (C.S) 144 and PLD 1999 Supreme Court, 1106.
7. Arguments heard and record perused.
8. The parawise comments allegedly submitted by the respondents are not signed' by the Respondents, No, 1 & 2; Syeda Mehrukh Batool, Law Officer has signed the same but no authority letter has been annexed with the parawise comments whereby it can be inferred that She wail authorized by Respondents No 1 & 2 to file the same. Mr. Barkat. All Chaudhry Senior Manager (Admin & HR) who appeared on behalf of respondents as RW/1 has no authority to appear on behalf of respondents and make statement before this Commission. The basic objection of learned counsel for the respondents is regarding the status, of the petitioner whether he is workman or not.
The petitioner has stated in his grievance petition as well as affidavit-in-evidence that he was performing manual and clerical job. The affidavit is available on record as Exhibit P/1 wherein the petitioner has also stated the same but he has not given the detail of clerical job which he was performing when he was terminated from service, infact, this is a general statement. The respondents have placed on record job description of the petitioner 'as Exhibit R/7, but the learned counsel for the petitioner has raised objection that RW/1 was not authorized to make statement on behalf of respondents, therefore 'by keeping the same aside, I cannot relic upon the said job description Exhibit Pari. in the grievance petition as well as in the affidavit, the petitioner as specifically stated that soon after his termination, by changing the nomenclature of the post, the respondents have given advertisement and made fresh recruitment, even against the post of petitioner, where he was performing his duties with 'teal and zest up to the entire satisfaction of his superiors. The advertisement has been placed on record by the petitioner as Exhibit P/3. On the query made to the learned counsel for the petitioner, the learned counsel for the petitioner has stated that infact, the post of Business Analyst/System Analyst was the post which the petitioner was holding and was performing his duties in respondents establishment. It means that the job description of Business Analyst/ System Analyst mentioned in Exhibit P/3, are the duties, which the petitioner was performing in the respondents establishment as Assistant Manager. The some are reproduced as under:-- Required Skills Must have 4 +years of experience analyzing and designing software applications planned systems, arid ensue that new technical requirements are properly integrated with existing processes and skill set.
Plan a. system flow from the ground up. Interact with internal users and customers to learn and document requirements that are then used to produce business requirements documents.
Write technical requirements from a critical phase and work with technical writers in close coordination to get system specifications and design documented, Help programmers during system development, understanding use-cases, flowcharts or even database design.
Perform system testing and deploy the completed system.
Document requirements or contribute to use manuals.
Information Technology experience to work closely with the developers Strong analytical and product management skills, including a thorough understanding of how to interpret customer business needs and translate them into application and operational requirements.
Ability to understand business from operational, financial, and technical viewpoints. Microsoft Project Skills Excellent verbal and written communication skills as well as interpersonal skills Job Desc Requirement collection from the customer Development of Easiness Requirements Specifications Document. Participating solution architecture. and assisting Technical Writers to develop system specifications and design Assisting to identify test cases Assisting Technical Writers to build installation guide, online help. technical manuals. Participating LAT process to deliver the required Application tip Client interacting With the business Documenting business requirements and developing process flows through means such o functional requirements specifications, use cases, and user interface mockups. Developing requirements specifications that are comprehensive in coverage and understandable by both business and technical audiences. Working directly with the developers to turn the business requirements into technical. requirements. Managing multiple projects and project plans simultaneously Testing and verification of the implemented requirements, either directly or working with the QA team Train system users on new functionalities Issue tracking and oversight to resolution. Driving projects from initial concept through system acceptance and post implementation support.
9. The -perusal of above duties, clearly indicates that these duties can be perform by highly qualified and professional person. These duties require imaginative and creative mind and these duties can be performed by a person who deal in technical matters which required application of mind and making of decision on the subject based on rational approach. In similar case the Full Bench of this team/stakeholders to onderstand business needs. Commission on the basis of job description of Database Administrator passed order dated 21-04-2016 in Appeal No, 12A(05)/2016 wherein it has been held as under:-- "Learned Member has not taken into consideration the basic qualification for the appointment of Database Administrator-arid the job description of Database Administrator. Copy of the degree of petitioner as Bachelor of Information Technology is Exh. R/4, copy of appointment letter is Exh: R/3.
He is also in pay group V. During cross-examination he has admitted that he did not claim overtime during his service. Job description is available on the record, few items of his duties are reproduced as under:-- job Description: Perform database architecture for all technology-enable capabilities in one or more lines of business. Develop solution patterns, Date Flow Diagrams, Enterprise Data Models, ER Models, data access, data integration, database design, architectural and work closely with other teams to implementing enterprise-class database architectures across the organization. Provide - standards and guidelines for the design, development, funning, deployment and maintenance of logical data models and physical databases.
Provide overview for logical and physical data model development across applications teams, Assist in the development of policies around data access, data retention, data security and data stewardship.
Mentor less experienced members of the entire team, work with the Product owners and other team members across the enterprise to complement and complete the - development process in time and with quality.
Etc The job description clearly indicates that it was neither manual nor clerical job. In fact it was the job of a professional who is highly skilled in information technology. This duty requires imaginative and creative mind. His duty could not be termed as either manual, skilled, unskilled or clerical in nature.
Infact Database Administrator is a qualified person who deals in technical matters which requires application of mind and making of decision on subject based on rational approach. There is nothing on record to show that he performed clerical or manual duty. Respondent/petitioner has not explained as to what kind of clerical or manual duty he was performing during his service. For a post of a workmen, professional having Bachelor Degree in IT is not required. Such professional are engaged, in technical job relating to computer and its operation. He was employed in pays group- V to IV as per Rule 39.3 of PRAL.Service Rules,- 1998. in Wisram Das vs.. SGS Pakistan. (Put) Ltd. and another (2010 SCMR 1234) it has been held as under:--
(a) 'Industrial Relations Ordinance (XXIII of 1969)
S. 2(xxviii)--Workman--Definition--Rice/Cotton Inspector in Agricultural Division of a private company--posting of such. employee at go down of company for drawing samples, checking weights, sealing samples and transmitting same to company for onward action-- Validity--Nature of such duties discharged by employee was that of a Inspector involving application of mind and making of decisions on subject based on rational approach--Such duties were not merely 'Clerical in nature--Such employee would not fall within definition of a workman".
In these circumstances it can safely be held that Respondent No J./petitioner was not a workman.
'Learned Member has erred in law in holding the petitioner as worker".
10.This order dated 21-04-2016 was assailed by the respondent before Hon'ble Islamabad High Court Islamabad by filing Writ Petition No, 199/2016 and the Hon'bie Islamabad High Court Islamabad vide order dated 30-03-2017 up-held the above said findings, therefore, in view of the above, on the basis of duties performed by the petitioner, the petitioner cannot be termed as workman.
11. For what has been discussed above, as the petitioner is not workman, therefore he cannot seek remedy by filing grievance petition before NIRC and the same is returned to the petitioner with the direction to file it before proper forum, if so desire. The office is directed to retain copy of complete file alongwith order for official record.